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Citizen of Which Republic:
Foreigners and the Construction of Citizenship in Central America, ca. 1808-1845
The law of the South American states with reference to
nationality of origin remains to be noticed.”
Sir Alexander Cockburn, Nationality: or, The law
relating to subjects and aliens, considered with a view
to future legislation (London, W. Ridgway, 1869), 17.
This paper is a draft. Please do not cite without author’s permission.
In December 1841, voters in Sonsonate (El Salvador) elected French citizen and longtime resident, Luis Bertrand Save, as local magistrate. Despite the governor’s insistence that he
take office, Save, referring to French and Salvadoran laws, convinced the country’s president
that his lack of citizenship exempted him from service. French law mattered because Save could
lose his citizenship by taking office in a foreign government; Salvadoran laws limited officeholding to its own nationals. In 1843, when Save was again elected magistrate, he expanded on
his resistance because “the law requires for these positions that it is indispensable that the elected
be a citizen of the country. While I am a vecino (for I live in Sonsonate), I am not a citizen, and
as a foreigner, have neither a letter of naturalization, nor am I naturalized de facto.”1 That is,
Save acknowledged the importance of local citizenship and accepted the status of a Sonsonate
vecino, or community member, but pointed out that he lacked national citizenship because his
The author would like to thank and the History Department of, and the History Workshop, and Bernard Bailyn and,
for the opportunity to present drafts of this paper as a work-in-progress and receive helpful comments and criticisms
from workshop participants.
1
Archives Diplomatiques Françaises, Ministère des Affaires Etrangères (Paris) (MAE), Correspondance Consulaire,
Guatemala (CC-G), Vol. 2 (1844-1845), ff. 240-240v. Bertrand Save to Departmental Governor of Sonsonate, 26
December, 1843. All translations are mine.
domicile did not make a “foreigner” a national, and he lacked the institutional change of status to
overcome that foreignness (naturalization).
Legally, Save had a case. However, the governor and the Minister of State had both a legal
argument as well as a different yardstick for measuring suitability for municipal office-holding. In
its 1841 constitution, El Salvador had adopted legislation automatically naturalizing foreigners
with five years’ residence and real estate holdings, or three years’ residence and a Salvadoran
wife—conditions which Save met.2 Further, in early January 1844, the governor wrote “Mr. Save
lives in society, and for this must serve the post that he has refused, and…while Mr. Save dislikes
the title of citizen of Salvador—we see today with what contempt—, he has the capacities the law
requires to be one, and the obligation to support communal responsibilities (cargas).”3 The
Salvadoran Minister General, José Jiménez, agreed, responding to a furious note from the French
Consul General that Save had “enjoyed in that city more than twenty years the privileges (fueros)
of a Salvadoran citizen, and should justly contribute his service.”4 In other words, the
Salvadorans argued that suitability and residence as well as the law carried substantial weight. To
avoid arrest, Save agreed to serve.
Because he was forced into the office, Save preserved his French nationality and citizenship;
the French government ruled that he had done his best to avoid holding this disqualifying position.
However, his experience suggests that the tensions between local and national citizenship, as well
as the challenge for new governments in dealing with “foreigners” as opposed to “citizens” was
acute. Both Save and his adversaries agreed that he was a vecino, or householder, of Sonsonate,
and thus had a certain responsibility to the community. However, their opinions diverged on the
2
Constitution of El Salvador, Article 6.
MAE, CC-G, 2: ff. 240v-241v. Governor of Sonsonate, Santa Ana, 8 January 1844, to José Antonio Ramos,
Alcalde Constitucional Primero, Sonsonate.
4
MAE, CC-G, 2: ff.263-4. José A. Jiménez, Ministerio General del Estado de Salvador, to Consul General JeanMarie Baradère of France, San Salvador, 29 November, 1844.
3
1
extent of that obligation and whether Save had consciously or inadvertently also become a
Salvadoran national rather than a French resident. At the root of the conflict was a fundamental
question: what republic mattered in issues of belonging? Which republic—local, country of
residence or country of origin—could or should determine the nature and extent of an individual’s
membership? If a French resident did not want to serve on a city council, pay a war tax, fight in a
local militia, or become a Salvadoran national or citizen, was it French or Central American law or
custom that mattered? While the answers may now seem obvious or intuitive, for those in charge
of defining national citizenship in the Atlantic world in the age of revolutions (ca. 1780-1840), the
task was complex in large part because political theory of international relations derived for
monarchies had not yet caught up to the practices of the national era. Further, independent
American governments had to deal with the challenges not just of defining citizens of multi-ethnic
populations but also of multi-national ones.
This paper examines the construction of nationality and citizenship in Central America in the
age of revolutions by examining definitions of foreign nationals from the upheavals of Napoleon’s
invasion of Spain (1808-1814) through independence (1821-1825) and in the first era of national
development (1825-1845), with special emphasis on French and British residents. Alternately
welcome and unwelcome, their presence challenged Central American governments to confront the
place of foreign-born residents in a constitutional system, and the meaning both of nationality, or
civic status as a member of the community, and citizenship, or political rights within it. At its core,
the paper traces how, drawing from the theories of the Law of Nations and examples provided by
the North American, French and Spanish constitutions and naturalization laws, Central American
statesmen refined the definition, rights and privileges of “citizens” and “foreigners” in a republic
over the course of twenty years in their own state and national constitutions and laws, responding to
2
successes and failures in enforcing original definitions that emerged from internal and international
disputes.
An Atlantic Context
The definitions of citizenship and nationality in the age of Atlantic revolutions were
under constant revision. While many now take for granted that birth in a national territory
provides nationality, legislators on both sides of the ocean drew from a history dating back to the
Greeks and Romans as well as the social compact theory of natural law to measure membership
not only by place of birth (ius solis) but also ancestry (ius sanguinis), place of residence (ius
domicilis) and conscious allegiance.5 Similarly, the qualities that legally qualified an individual
for citizenship included a complex calculus of age, gender, marital status, economic position,
race, and residence which varied from country to country and changed over time. Even the
rights and obligations of citizens were neither universal nor absolute: in the early United States,
not only was no form of national citizenship defined but resident aliens had the right to vote in
many states until the War of 1812, and several thereafter.6 The principal categories of belonging
to a territorial community, nationality and citizenship, were under construction, with both
categories often subsumed in the discussion of an individual’s citizenship.
Equally diverse were the strategies legislators devised to address their multi-ethnic and
multi-national populations. Most scholarship has focused on the former. Scholars of North
American citizenship and the French Revolution have identified the American Civil War and
5
For the classical sources, see Peter Riesenberg, Citizenship in the Western tradition: Plato to Rousseau (Chapel
Hill: University of North Carolina Press, 1992). For an argument against birthright citizenship as a Framer’s ideal in
the United States, see Edward J. Erler, “From Subjects to Citizens: The Social Compact Origins of American
Citizenship,” in Ronald J. Pestritto and Thomas G. West, eds., The American Founding and the Social Compact
(New York: Lexington Books, 2003), 163-198.
6
Jamin B. Raskin, “Legal Aliens, Local Citizens: The Historical, Constitutional And Theoretical Meanings Of Alien
Suffrage”, University Of Pennsylvania Law Review, 141 (April 1993): 1403-4. One Pennsylvania judge held, “aliens
of a certain description, who from length of residence, and payment of taxes, might be supposed to have a common
interest with the other inhabitants, were indulged with the right of voting.”
3
Haitian Revolution as conflicts resulting from policies which left the definition of citizens in the
respective hands of state and colonial assemblies, thus failing to produce national consensus to
resolve differences over the abolition of slavery and the status of African-Americans in the body
politic.7 Historians of Spanish American independence alternately celebrate as visionary or
dismiss as insincere or ill-founded early republican experiments to extend equal political rights
to a national majority of African and Indian origin.8 Whether comparing or contrasting the
European and American experiences, studies emphasize the inclusive and exclusive aspects of
legislation and access to the formal voting process as the benchmarks that helped define both
citizenship and national identity.9
The way the new republics integrated foreigners has been considered more traditionally
as part of the history of diplomacy and commerce rather than national state formation.10 Notable
exceptions have challenged this approach, beginning with James Kettner’s 1970s study traces the
7
James H. Kettner, The Development of American Citizenship, 1608-1870 (Chapel Hill, University of North
Carolina Press, 1978), 300-333. For France, see Mitchell Bennett Garrett, The French Colonial Question, 17891791 (New York: Negro University Press, 1970 (1916)).
8
Those who raise this question include François-Xavier Guerra, "El soberano y su reino. Reflexiones sobre la génesis
del ciudadano en América Latina", 33-61; Juan Carlos Chiaramonte, "Ciudadanía, soberanía y representación en la
génesis de Estado argentino, 1810-1852", 94-117; and Marcello Carmagnani y Alicia Hernández, "Dimensiones de la
ciudadanía orgánica mexicana, 1850-1910,” 371-402 in Hilda Sabato, ed., Ciudadanía política y formación de las
naciones: Perspectivas históricas de América Latina (México: Colegio de México, Fondo de Cultura Económica,
1999), and Marta Irurozqui, “La vecindad y sus promesas de vecino a ciudadano, Bolivia, 1810-1830,” Anuario
Boliviano (2000): 203-27. These important studies do not address the aspect of vecindad discussed here: inclusion
of foreigners.
9
Even this literature is slim. See Hilda Sabato, ed., Ciudadanía política y formación de las naciones; Antonio
Annino, ed., Historia de las elecciones en Iberoamérica, siglo XIX. De la formación del espacio político nacional
(Buenos Aires: FCE, 1995); Eduardo Posado Carbó, ed., Elections Before Democracy: The History of Elections in
Europe and Latin America (London: Macmillan, 1996); Carlos Malamud, ed., Partidos Políticos y elecciones en
América Latina y la Península Ibérica, 1830-1930 (Madrid: Papeles de Trabajo del Instituto Universitario Ortega y
Gasset, 1995)
10
For diplomacy, commerce and foreigners in Central America see Mario Rodríguez, A Palmerstonian Diplomat in
Central America: Frederick Chatfield, Esq. (Tucson: The University of Arizona Press, 1964) and Thomas
Schoonover, The French in Central America: Commerce and Culture, 1820-1930 (Wilmington, DE: Scholarly
Resources Press, 2000). For examples from Mexico, see William Spence Robertson, “French Intervention in
Mexico, 1838” HAHR 24:2 (May 1944), 222-52; Nancy Barker, “The French colony in Mexico, 1821-1861:
generator of intervention,” French Historical Studies 9:4 (Fall 1976), 596-618, and Christian Hermann, La politique
de la France en Amérique latine, 1826-1850: un rencontre manqué (Bordeaux: Maison des pays ibériques, 1996).
James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, NY:
Cornell University Press, 1956) provides a reading of the political context of the 1798 Naturalization Act but does
not situate his topic within the history of citizenship.
4
development of ideals of ‘volitional allegiance’ through naturalization and policies and laws in
Britain’s North American colonization project, showing how they shaped definitions of national
citizenship in the independent United States. Recent books by Peter Sahlins and Tamar Herzog
have considered importance of legal categories and institutions in shaping the rules for
incorporation of “foreigners” through naturalization legislation and practice in ancien regime
France and Spain and a handful of legal and political historians have recently explored
foreigners’ conflicts and integration in Uruguay, Argentina and Mexico to complicate definitions
of national sovereignty and the process of forming national identity.11
These studies provide persuasive evidence that an important way that European and
American nation-states in the age of revolution developed their definitions of nationality and
citizenship was through addressing the other—the foreigner. Yet they argue from the
perspective of a contractual relationship of an immigrant and adopted state that is unmediated
and agreed upon by both parties. That is, they presuppose a desire by foreign residents to sink
deeper roots and naturalize, to become full members of their adopted community in order to
exercise a full set of rights and privileges. It is the state, in the form of king, local or national
authorities, which impedes this incorporation. However, as Save’s case shows, in independent
Central America not only did governments seek greater inclusion and incorporation for
immigrants than desired by the immigrants themselves, they found that their own laws competed
not only with laws enacted in the immigrant’s home nations and defended by their consular and
diplomatic agents but also the idea of a supranational “Law of Nations” whose general rules
sought to guide the behavior of governments to each other and to people within their jurisdiction.
See James Kettner, The Development, Peter Sahlins, “Nationalité avant la lettre: les pratiques de la naturalization
sous l’Ancien Régime,” Annales: Histoire, Sciences Sociales, 55:5 (2000): 1081-1108 and Unnaturally French:
Foreign Citizens in the Old Regime and After (Ithaca: Cornell University Press, 2003) ; and Tamar Herzog, Defining
Nations: Immigrants and Citizens in Early Modern Spain and Spanish America (New Haven: Yale University Press,
2003).
11
5
That is, what is not usually addressed in the scholarship is that in dealing with foreign
immigrants, the underlying blueprint used throughout the Atlantic world was not a set of codes
derived from an individual nation, but ideas developed by early proponents of what in English is
called the Law of Nations, or international law, and in French and Spanish, the law of people
(droit des gens, derecho de gentes). The works of authors including John Locke, Hugo Grotius,
Samuel Pufendorf, and Emmerich Vattel were more a political philosophy than a blueprint for
legislation, yet the principles of the body of political theory they generated influenced jurists
north and south of the Tropic of Cancer and provided guidelines for interstate relations that set
rules for the legitimate causes of war and found in natural law contractual bases for the
relationship between ruler and ruled, the duties and obligations of a sovereign power within its
own domain and each sovereign’s right to be free of interference in its internal affairs. Focused
on interstate relations, Grotius, referring to subjects, and Pufendorf and Vattel, referring to
citizens, were interested in individuals as members of civil society, not as political actors, and
had little to say on what qualities defined an individual as belonging to his native community
beyond birth to an existing citizen.12 However, they had much to say about the rights and duties
of individuals traveling or residing in foreign countries, and the rights and duties which native
and foreign governments owed to expatriate individuals.
So it is not surprising that implicit in the construction of policies regarding residents,
natives and naturalized inhabitants in the revolutionary Atlantic world were many of the precepts
of the modern father of the Law of Nations, Emerich Vattel, whose book of that name had first
appeared in print in French (1758) followed almost immediately with editions in English (1759),
Vattel, Book 1, Chapter 19, Section 212, Citizens and natives, “The citizens are the members of the civil society;
bound to this society by certain duties, and subject to its authority, they equally participate in its advantages… [I]n
order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of
a foreigner, it will be only the place of his birth, and not his country.”
12
6
German (1760), Italian (1783) and Spanish (1820) which were published in Paris, Amsterdam,
London, Dublin, New York, Philadelphia, Madrid and a host of other Atlantic-rim cities. 13
Known to have been influential in North American circles, 14 Vattel’s works were accessible to
Central American jurists as well.15
Of particular relevance to this paper are Vattel’s precepts governing a sovereign ruler’s
rights and obligations regarding foreigners allowed to visit, reside and settle within his dominion,
and the foreigner’s reciprocal obligations. All foreigners—divided into two classes, inhabitants
and transients—were subject to a nation’s laws because a sovereign government had “the right to
command in the whole country; and the laws are not simply confined to regulating the conduct of
the citizens towards each other, but also determine what is to be observed by all orders of people
throughout the whole extent of the state.” Thus, foreigners who broke laws might be punished
and local judges were in charge of settling disputes. In return for this authority, the sovereign
should only allow entry to foreigners he could protect.16 The foreigner, too, had obligations.
Inhabitants, defined as those settled in the country who were not “natives and citizens” were
13
Emmerich de Vattel, Le droit des gens: Ou Principes de la loi naturelle, appliqués à la conduite & aux affaires
des nations & des souverains. The 1758 editions appeared almost simultaneously in Leiden, London and the Hague.
14
For influence in the British Atlantic, including the US, see, Eliga J. Gould, “Zones of Law, Zones of Violence:
The Legal Geography of the British Atlantic, circa 1772” William and Mary Quarterly 3d Ser., 60 (2002): 471-510;
David Armitage, "The Declaration of Independence and International Law," William and Mary Quarterly, 3d Ser.,
59 (2002): 39–64. Donald J. Kochan, “Constitutional Structure as a Limitation on the Scope of the "Law of Nations"
in the Alien Tort Claims Act,” Cornell International Law Journal 31 (1998): 153-91; Helen K. Michael, The Role
Of Natural Law In Early American Constitutionalism: Did The Founders Contemplate Judicial Enforcement Of
"Unwritten" Individual Rights?” North Carolina Law Review 69 (January 1991): 427; Bernard Bailyn, The
Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1967), 27, 210; and
Charles F. Mullet, Fundamental Law And The American Revolution 1760-1776 (New York: Columbia University
Press, 1933), 30-2.
15
A pamphlet by ANC deputy José María Castilla in 1823 cites Vattel, Locke and Penn, suggesting that these three
authors’ works would have been known to the highly educated elite participating in state and federal congresses.
Castilla believes the federal system too advanced for Central America, and laments the lack of a professorship of
either natural or international law at the university. Tulane University Latin American Library, Central American
Pamphlets and Ephemera Collection (LAL, CAPE), Box 1, Voto Particular del Cddno José Maria Castilla…con
acusación de discutirse las bases parala constitución de dichas prov[inci]as, 18 November 1823.
16
Emmerich de Vattel, The Law of Nations or the Principal of Natural Law applied to the conduct and to the Affairs
of Nations and of Sovereigns, Joseph Chitty, trans. (Philadelphia: T & J.W. Johnson & Co, 1883), Book 2, Chapter
8, Rules Respecting Foreigners, Sections 101-104.
7
“obliged to defend it…[and] are a kind of citizen of an inferior order.”17 While under no
obligation, even the transient foreigner “ought not to content himself with barely respecting the
laws of the country; he ought to assist it upon occasion, and contribute to its defense, as far as is
consistent with his duty as citizen of another state. … Can he pretend to live under the protection
of a state, to participate in a variety of advantages that it affords, and yet make no exertion for its
defense, but remain an unconcerned spectator of the dangers to which the citizens are exposed?”
For transients (those present “for business or a mere traveler”), military service and “paying
those taxes destined for the support of the rights of the nation” were not required, although even
they were supposed to pay “the duties imposed upon provisions, merchandise, &c.”18 In addition
to the role of individual foreigners and the country they visited or resided in, there was also an
important responsibility retained for the country of origin which limited the new country’s
authority. While “the jurisdiction of a nation ought to be respected by other sovereigns” and a
ruler “ought not to interfere in the causes of his subjects in foreign countries, and grant them his
protection,” Vattel made exceptions for “cases where justice is refused, or palpable and evident
injustice done, or rules and forms openly violated, or, finally, an odious distinction made, to the
prejudice of his subjects, or of foreigners in general.”19 So well before the rise of the nationstate, the idea that there were limits to a country’s sovereignty—at least as far as exercising
authority over foreign residents—had been accepted. How they would be applied in new
republics, which were codifying the rules of citizenship in ways unprecedented in ancient regime
society, was yet to be determined.
17
Vattel, The Law of Nations, Book 1, Ch. 19: Of Our Native Country and Several Things that Relate to It, Section
213 (Inhabitants).
18
Vattel, The Law of Nations Book 2, Ch. 8, Rules Respecting Foreigners, Sections 105-106. (my italics)
19
Vattel, The Law of Nations, Book 2, Ch. 7, Effects of the Domain Between Nations, Section 84
8
Directly or indirectly, these precepts became the unstated bases for emerging national
policies on how to incorporate and separate foreign immigrants within society. Yet the
“universalization” of international law did not occur until the end of the nineteenth century.
Prior to this time, many precepts might have been agreed upon but their practical meaning
required thrashing out. Some argue that the thrashing out was “principally a consequence of the
imperial expansion that took place towards the end of the "long nineteenth century.” 20 However,
as this paper shows, many standards of regulation and behavior began to emerge in the first half
of the century, as newly independent republics sought to establish authority over their territory
and the peoples who resided there and found that they had to address concerns not just of their
own nationals but foreign residents and the diplomatic and consular agents who learned to
address expatriates’ private concerns as matters of international relations.
I. Foreigners and Citizenship in Central America: The Foundations
The population of early nineteenth century Central America was a diverse one. By one
author’s calculation, around 40,000 residents of Spanish descent existed alongside about 670,000
Indians and 330,000 people of mixed Indian, African and European origin.21 Amidst the million
native-born inhabitants resided a handful of “foreigners,” largely naturalized or illegally settled
Irishmen, Italians and Frenchmen who had made their way to the Americas to serve in the royal
bureaucracy, farm, practice medicine, run bakeries, and trade. 22 These “foreigners” were few at
independence since the Crown for security reasons restricted foreign immigration and naturalization,
Antony Anghie, “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International
Law,” Harvard International Law Journal 40 (Winter 1999), 1.
21
Antonio Larrazábal, Apuntamientos sobre la agricultura y comercio del reyno de Guatemala…Real Consulado en
Junta de Gobierno de 20 de octubre de 1810 (Nueva Guatemala: Manuel Arévalo, 1811).
22
Jacques Houdaille, “Los franceses en Guatemala en 1794,” Antropologia e historia de Guatemala 6:1 (January
1954), 62-4 and his more extensive treatment, “Les français et les afrancesados en Amérique centrale,”Revista de
historia de América 44 (December 1957): 305-30.
20
9
providing individual exceptions when the skills or wealth of an individual merited allowing a
foreigner to settle and trade in a territory whose wealth Spain jealously guarded for its own use.
Despite the small number of truly foreign immigrants, the problem of how to incorporate
foreigners into society was an important and fundamental one for colonial Spanish society.
Since the sixteenth century, natives of all origins and foreign immigrants achieved incorporation
into society through a combination of the three traditional categories of belonging—place of
birth, place of residence or parentage—to define who was included not just as a national but as a
citizen in society. Birth or naturalization in Spain’s dominion’s made someone of European
origin a “Spaniard,” but an individual had to be a vecino, or householder, within a city or town to
have access to civil status, legal rights and political power derived from “citizenship” (vecindad)
in a municipality.23 While there was no formal procedure for establishing vecindad, an
individual’s acts were considered probative of intention and included residing with a spouse and
children, paying local taxes, holding municipal office and providing military service; all these
demonstrated belonging to the república, or city or town inhabited.24 One who was not a vecino
was either a forastero, a Spanish national who had not established his household and domicile in
the town, or an extranjero, a foreigner “who is not a native of the dominions of the sovereign of
the country where he lives or resides.”25 A forastero overcame his disability as an alien through
his establishment of vecindad to local satisfaction. An extranjero, however, usually required a
23
Helen Nader, Liberty in Absolutist Spain: The Habsburg Sale of Towns, 1516-1700 (Baltimore: Johns Hopkins
University Press, 1990); Sebastian de Covarrubias Horozco, Tesoro de la lengva castellana, o española (Madrid:
Luis Sánchez, Impresor del Rey, 1611), under “Ciudad,”-- “Civil todo lo que pertenece al derecho de ciudad.”
24
Tamar Herzog, “La vecindad: entre condición formal y negociación,”Anuario IEHS 15 (2000): 123-131. Herzog
demonstrates how vecindad was a category never defined specifically for a New World context and shows how
inclusion or exclusion devolved from an administrative process to one of social acceptance. Her analysis, however,
does not directly address the question of limitation of vecindad to those of Spanish origin, an important component.
25
Real Academia Española, Diccionario de Autoridades, Naturalization (1734): “El derecho que concede el
Principe a los Extranjeros para que gocen de privilegios como se fueran naturales del Reino, Lat. Ius civitatis." 6512; Extrangero “(como sustantivo) el que no es de aquella tierra y del pais donde está y donde vive” (1734) “el que no
es natural de los dominios del soberano del pais en donde vive o reside” (1791) ;“El que es de otra nación (1822),
Diccionario de la Academia Usual, 1791: 417,3; 1822: p. 376,3. Provided by Real Academia Española,
Diccionarios académicos, www.rae.es [Notes January 10, 2004] [1992: Que es o viene de pais de otra soberanía]
10
carta de naturaleza, or formal naturalization from the Crown to have rights not only to settle but
to trade (trartar y contratar) overseas,26 and could face further restrictions, such as prohibition
from purchasing coastal property.
Thus, within Spain and Spanish America, individuals belonged to a national community
united by birth within the empire (ius soli) and a local community through residence (ius
domicili). In Spanish America, position and status within these communities also derived from
ancestry (ius sanguini). Requiring Spanish ancestry for vecindad in an incorporated Spanish
town or city limited political rights to those of Spanish origin eligible to seek honors, royal
appointments and political office. Those of Indian or mixed ancestry living in their own villages
operated parallel municipal structures governed by separate legal codes. Those of African
origin had fewer rights for they originated in lands outside of Spanish dominion and they or their
ancestors had been brought to the Americas against their will. In essence, early modern native
and naturalized Spaniards, Spanish Americans, Indians and Africans were each citizens of two
republics: the “national” community under the sovereignty of the Spanish king, and the “local”
community in which they established their households and had rights as “citizens” of the local
republic. Within this framework, native and naturalized residents both were foreigners when
acting outside their place of residence, and thus every town or village was well aware of both the
ways to determine who was an outsider and the qualifications that would permit an individual to
become an insider. There was also an uncodified but nonetheless well-understood distinction
between nationality, or being subject to the Spanish monarchy by birth or naturalization, and
citizenship, or formal rights within a locality based on ancestry and domicile.
26
Herzog, Defining Nations, Ch. 5. Nunn, Foreign Immigrants, especially Chapter 2 and Appendix I. Another
article, see Carmen Pérez Gomez, “ Los extranjeros en la América colonial: su expulsión de Cartagena de Indias en
1750,” Anuario de Estudios Americanos 37 (1980): 279-311.
11
This system began to change a decade before independence when the ideas of the
Atlantic revolutions were first put into practice in the Hispanic world in the Constitution of the
Spanish Monarchy (1812). Under the Constitution, the system of two republics was replaced
with a newly defined national citizenship which clarified the distinction between nationality and
citizenship. Birth within Spanish territory provided nationality, and remained the fundamental
criterion for inclusion within civil society and a precondition for political citizenship. Spanish
nationality was extended to any free person born in the Empire, and carried with it the obligation
to love the fatherland, respect the constitution and other laws, contribute towards the costs of
running the state, and bear arms.27 Political citizenship, or the right to elect and stand for
election, applied only to adult men of European or Indian ancestry who were domiciled
(avecindado) in a town located in any Spanish dominion.28 Foreigners could first become
nationals by either a legislative act or after ten years’ domicile in a town (vecindad). Once
naturalized as Spaniards, they could acquire the rights of citizens by a second legislative act,
which verified that the individual in question had married a Spanish woman and in addition had
contributed economic benefits to the country or provided services in defense of the nation.29
The Constitution of 1812 continued to rely on all three elements of belonging to define
Spanish nationals and citizens, using ancestry to decline to extend political membership to
Spaniards of African origin. However, in implementing the new code, Central American
administrators found ways to get around the exclusion in application by refusing to acknowledge
the existence of African ancestry unless prior proof was presented against an individual seeking
27
Constitución Política de la Monarquía Española (Constitución de 1812), Articles 6-9.
Constitución de 1812, Articles 5, 18, 35.
29
Constitución de 1812, Articles 5, 19, 20.
28
12
to exercise citizenship.30 So in this colony, as a result of applying the Constitution of 1812, the
criterion of blood was essentially eliminated as a category for inclusion or exclusion purposes in
Central America, if not yet in theory. Along with birth, however, domicile remained very
important for the definition of a member of the Spanish nation and for citizenship. For
foreigners, residence continued to demonstrate the commitment to join the Spanish community
and for native born Spaniards, domicile in a municipality was the commitment to a local
community which continued to serve as the gateway to exercise the rights of an imperial citizen.
Thus both nationality and citizenship required residency in a specific place, whether that place
was Spain and its dominions or a specific locale. The Constitution of 1812 thus provided a
blueprint for a nationality in which commitment to a local community continued to provide
access to political as well as civil rights and belonging. Further, both nationality and citizenship
were open to foreigners, an openness which would carry over into creating national citizens after
the Central America achieved independence in 1821.
II. Citizen of the National Republic: An Integrating Approach
When Frenchman Bertrand Save arrived in Central America in the early 1820s, he found a
new country in the midst of political organization. Two years after the Captaincy-General of
Guatemala declared independence from Spain in 1821, and a short-lived annexation to the newlyestablished Mexican Empire, the region opted for full independence in 1823. Thirty-four deputies
met in June 1823 in a National Constituent Assembly, agreed to form the Central American
Federal Republic as a federation of five states (Guatemala, El Salvador, Honduras, Nicaragua and
Costa Rica) made up of the Captaincy General’s districts, and set about writing and approving the
new republic’s first constitution (1824). An important part of this process included defining who
See Jordana Dym, “Our Pueblos…Fractions with No Central Unity, Municipal Sovereignty in Central America,
1808-1823,” ,” unpublished ms, Jaime E. Rodríguez O., coord., Latin American Studies Symposium “Revolution,
Independence and the New Nations of America,” University of California, Irvine, 23-24 March, 2003
30
13
was a member of the new republic, and the parameters of that belonging. What role would birth,
ancestry, and residence play allowing foreigners access to membership in a new nation?
By the 1820s, there was substantial precedent for the task at hand. The United States and
France had had no constitutional models for defining citizens in a nineteenth-century republic,
and in fact had served as midwives to the precept that a written constitution should codify
essential rights and thus limit as well as define a country’s government.31 Two decades later,
however, Central America could turn not only to the theories of the Law of Nations but also
legislation from both countries, as well as Spain’s 1812 Constitution and Spanish American
models including Venezuela’s 1819 Constitution. Drawing from these texts and adding some
innovations of its own, the Assembly created a federal structure that was becoming fairly
standard, with popularly elected officials, separation of judicial, executive, and legislative
powers, and a bicameral congress. Institutional innovations were few, but significant, such as a
“fourth branch,” the “Consejo Representativo,” established to advise the federal executive and
which was a cross between a council of ministers, senate and tribunal. As in the US, the states of
the federation would exercise sovereignty internally and the federation would take charge of
defense and international relations, among other things.32
In the matter of defining nationals and citizens, however, Central America combined
innovation and reliance on existing models. In Article 1 of Section 1, “On the Nation and its
Territory,” the Constitution asserted that “[t]he people (pueblo) of Central America is sovereign
and independent.” And who would form the people, or the nation? In Article 3, the text clarified
31
Bailyn, Ideological Origins, 176-189.
See “Informe Sobre la Constitución leido en la ANC el 23 de mayo de 1824,” reprinted in Carmelo Saenz de
Santa María, “El proceso ideológico-institucional desde la Capitanía General de Guatemala hasta las provincias
unidas del Centro de América: de provincias a estados” Revista de Indias 38 (1978), 219-85.
32
14
that “[a]ll inhabitants form the pueblo.”33 Perhaps with the American inability to address its own
multi-ethnic population in mind, the Constitution added that “every man is free in the republic,”
not only freeing Central America’s slaves but, as specified in a subsequent law, also any slave
who set foot in the republic, thus ensuring that all individuals would be free and thus eligible for
civil and political rights.34 That is, the nation seemed to comprise all inhabitants of the new
Federation, regardless of ancestry, place of birth, length of residence—or, quite possibly, foreign
nationality. For, while the definition of the people appears comprehensive and clearly indicates
the intention to include all residents in the nation, by identifying “inhabitants” rather than
“nationals” as its components, the philosophical bases on which to determine membership in the
new country seemed unclear. If all “inhabitants” formed the people of the nation, without regard
to nationality or citizenship, what would separate a permanent resident from a native son?
Certainly not responsibility to the national government, for Article 4 followed Law of Nations
precepts obliging all to “obey and respect the law, serve and defend the patria, and contribute
proportionately to public expenses.”35
Only through defining citizenship did the definition of the nation become clear. Adopting
and adapting the models provided by France and Spain’s Constitution of 1812 to establish
specific conditions for citizenship as separate from nationality, the federal constitution
established and each state’s magna carta reiterated that “[c]itizens are all inhabitants of the
Republic who are natives of the country or naturalized in it, who are married or over 18 years of
33
Constitución Federal de la República de Centroamérica (1824), Art. 3.
Constitución Federal de la República de Centroamérica (1824), Art. 13; Woodward, Central America, 26-7. The
ANC abolished slavery 17 April 1824, see Marure, Efemérides de los hechos acaecidos en la república de CentroAmerica desde el año de 1821 hasta el de 1842 (Guatemala: Editorial del Ministerio de Educación Pública, 1956
(1844)), 24; Gaceta de Gobierno Supremo de Guatemala, 15 November 1824, 231
35
Federal de la República de Centroamérica (1824), Art. 4.
34
15
age, and who exercise a useful profession or have known means of subsistence.”36 Taking a cue
from the US model, the constitution also specified that citizens in one state exercised citizenship
in them all.37 Thus citizenship, or political belonging, provided the anchor that nationality, or
civic belonging, did not. While someone who moved to Central America and established
residency could become part of the community—with rights and obligations to their state or
country of residence familiar from Vattel —political membership required birth in the territory,
native or natural status, or naturalization therein.
For those familiar with the French codes, Spain’s Constitution of Cádiz (1812) and the
United States Naturalization Acts (1790-1798), several aspects of Central America’s treatment of
nationality and citizenship deserve mention before examining how definitions of foreigners and
naturalization complicate and complete the picture. First, the Central American magna carta had
an explicit definition of national citizenship whose bases would change little in the first half of
the nineteenth century. The United States failed to establish guidelines for national citizenship in
its 1787 constitution, and France spent twenty years tinkering with expansive and more limited
definitions in several constitutions and a civil code before settling on a durable formula.38 By the
1820s, however, the principle of extending citizenship to adult, solvent males seems well
established. Second, conspicuously absent from this definition of national citizenship is any
reference to race or heritage or parentage. Vattel had insisted that ancestry mattered more than
place of birth in transmission of citizenship rights,39 and perhaps for this reason France’s 1791
fundamental definition of citizenship was an individual born in France to a French father; the
36
Constitución Federal de la República de Centroamérica (1824), Article 14; Constitutions of: El Salvador, 1824,
Article 8; Guatemala, 1825, Article 46; Honduras, 1825, Article 8; Nicaragua, 1826, Article 18.
37
Constitución Federal de la República de Centroamérica (1824), Article 15.
38
United States Constitution, 1789; US Naturalization Acts, 1790, 1795, 1798.
39
Vattel, Law of Nations, Book 1, Ch 19, § 212, “…in order to be of the country, it is necessary that a person be
born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not
his country.”
16
country dropped ius sanguinis language only in later constitutions.40 Spain’s 1812 Cádiz
constitution had limited “native” or automatic citizenship in the Spanish constitutional monarchy
to individuals both of whose parents had European or American heritage, and excluded all those
with any African origin, while requiring domicile in a municipality. The United States had no
national definition of citizenship, but limited naturalization to “free white” persons. Yet, as
noted above, Central Americans had gone beyond the requirements (and limits) of the 1812
Constitution, actively incorporating many ladinos and mulattos as citizens by the practice of not
considering anyone as having African origin without specific information. In 1824, this practice
became law, and the only reference to parentage relevant to citizenship was a precept of the Law
of Nations adopted by both the United States and France:41 children born overseas to Central
American parents were natives (and thus eligible for citizenship at 18) if the parents had been
abroad for under five years or were in government service.42 Central America seemed to have
resolved favorably the question of how and if to include its predominantly non-European
population as citizens of a single national republic by making place of birth and residence more
important than the traditional emphasis on ancestry. In so doing, the new federation moved
towards emphasizing territoriality—place of birth and/or place of residence—rather than
ancestry as the most important criterion for civil and political belonging.
With the ancien regime tradition of incorporating newcomers through establishment of a
domicile reconfirmed by the 1824 Constitution, as well as favorable views of the values of
40
Constitution Française, 1791, Article 2. By 1793, this language was gone, except in the case of those born
overseas.
41
Vattel, Law of Nations, Book 1, Ch 19, Sections 215, 217, held that children born abroad to parents only
temporarily removed there, or in government service, were natural-born citizens, although no time limit was
attached to the “temporary” nature of expatriation. Christina S. Lohman, “Presidential Eligibility: the Meaning of
the Natural-Born Citizen Clause,” Gonzaga Law Review 36 (2000/2001): 370-1. The First Congress’ Act of 26
March 1790 (Chapter 3, 1 Stat. 103,104 (1790)) stated that children of American citizens born overseas were
citizens as long as the father had at one point resided in the United States. France, Code Civil (1803), Art. 10. Tout
enfant né d' un français en pays étranger, est français.
42
Constitución Federal de la República de Centroamérica (1824), Art. 17.
17
Enlightened Europe and North America, it should come as no surprise that Central America’s
federal constitution was optimistic about integrating foreigners into the new body politic and
provided generous naturalization rules. In line with Vattel’s precepts, all inhabitants, foreign and
native, shared the same duties to “obey and respect the law, to serve and defend the patria with
arms, and to contribute proportionately to public expenses, without any exemption or privilege.43
Yet foreign inhabitants who wished to become nationals had distinct steps to take to achieve this
end, and the steps laid out reveal how nationality was constructed by Central American jurists
from defining those who did not have it.
According to the 1824 Constitution, some foreigners were so little foreign that the
constitution did not even use this term to reply to them. “Anyone” born in the republics of
America and come to settle in the federation, was automatically naturalized “from the moment
he manifests his intent before the local authority.”44 That is, any American—and in this idiom
one could plausibly include North Americans, or even Haitians, since the reference was not to
Spanish America—could acquire nationality upon petition. Presumably the deputies assumed
that since most of the rest of America was free of European government and had established
republican systems of government, their residents shared Central America’s values. “Spaniards”
received special mention as no longer being part of Central American community automatically
(as they had been when it was a colony), however they, along with “any other foreigner” who
had been present at and sworn to recognize independence, could naturalize without further
requirements.45 Finally, extranjeros of any other type—presumably European immigrants since
there was as yet little voluntary African or Asian migration—could achieve naturalization in
ways familiar from the ancien regime and French 1791 constitution. The federal legislature
43
Constitución Federal de la República de Centroamérica (1824), Art. 4.
Constitución Federal de la República de Centroamérica (1824), Art. 18.
45
Constitución Federal de la República de Centroamérica (1824), Art. 17.
44
18
would issue a “carta de naturaleza” to an individual after he had stated his intent “to a local
authority,” and could demonstrate one of four things: “relevant services to the nation”; “any
useful invention” and “exercise of a science, art or office;” 5 years’ vecindad; or 3 years’
residency with a family established in the republic and sufficient property. 46 Naturalized
foreigners became citizens when they met the same age, professional, and marital status
requirements as native-born nationals. 47 While some foreigners were treated as less foreign than
others, as we shall see, the implication of the Central American constitution was that any
foreigner in Central America formed part of the new pueblo, or nation, and would thus be a
welcome rather than a feared addition to society. All the forms of naturalization coincided with
existing theory of the Law of Nations, although it is not clear which texts the deputies used to
arrive at their definitions. And in explaining naturalization and distinguishing between nativeborn and naturalized inhabitants, Central American legislators indirectly but clearly revealed
what their first attempt to define the nation had not: nationality was something acquired by birth
in a territory, regardless of ancestry or parentage, and the only way to join this community was to
acquire consciously what natives acquired through birth—domicile, family, property or service
to its government.
In practice as well as in theory Central America opened itself to new residents, with
legislators apparently viewing their new country as a beacon of freedom and opportunity. For
example, federal and state governments swiftly passed laws to open mine ownership to
foreigners and to allow them to bid on opening inter-oceanic canals.48 Guatemala in 1825
46
Constitución Federal de la República de Centroamérica (1824), Art .15.
Constitución Federal de la República de Centroamérica (1824), Art .14.
48
New York Public Library, Rare Books Collection (NYPL-RBC), *KRK+ Central, República de Centroamérica,
Decretos, 16 and 27 June, 1825.
47
19
exempted foreigners who had naturalized from military service.49 Everything on paper
suggested no anticipation of conflict in incorporating foreigners into the new national republic.
The local republic also seemed open to foreigners. Spaniards in particular continued to
be welcome in city councils, where Guatemala City had almost two dozen serve as justices,
aldermen and syndics between 1821 and 1838.50 Before Bertrand Save refused to serve as a
Sonsonate alcalde in 1841, he had been city justice and syndic in the 1830s; another Frenchman,
Guillermo Varchand, had been both magistrate and alderman in the same period.51 In
Tegucigalpa, Italian-born José Ferrari received expedited naturalization as a Honduran citizen in
1843 so that he could continue to serve as a municipal justice after a state law reminded residents
that a foreigner could not hold political office.52
However, the response to Central America’s open invitation did not meet expectations.
While by the 1830s, pamphleteers in North America feared the tens of thousands of immigrants
that arrived on United States soil each year, Central America’s established expatriates were
joined by only a few hundred additional compatriots interested in trade, war and perhaps opening
a trans-isthmian canal.53 The few early British and Belgian colonization schemes intended to
settle coastal areas achieved government approval but were poorly managed and rapidly failed,
with settlers dying, scattering or returning home and individual initiative attracted just a few
49
Archivo Arcediocesano Francisco Garcia de Paula (Guatemala), T1-105: Cartas, Sep-Dec1825, Decree 64:
Reglamento Provisional para levantar y reclutar la fuerza publica del Estado 29 October 1825, Ch. 3, Art 20.
50
Damaso Angulo, Pedro José Arrechea, José María Cambronero, José Coloma, Candido Corzo, Andes Espada,
Miguel González Saravia, Juan Matheu, Diego Payes, José Petit, José Basilio Porras, Miguel and Regial Ruiz
Santirestaban, Eusebio Tejada, José María Urruela y Urruela and Julian Villega.
51
Archivo Municipal de Sonsonate (AMS), Libros de Actas, Save was syndic in 1835 and alcalde in 1836, 1841
and 1844. Varchand was an alderman in 1835-1836 and alcalde in 1841.
52
Archivo Municipal de Tegucigalpa, Libro de Actas, Ciudad de Tegucigalpa, 1843-1847, 25 April 1843.
53
[Samuel F. B. Morse], Imminent dangers to the free institutions of the United States through foreign immigration,
and the present state of the naturalization laws. (New York: E.B. Clayton, 1835).
20
hundred foreign settlers between 1820 and 1850.54 Even though Britain was the region’s largest
trading partner, only 163 Britons resided in Central America by 1850, concentrated in Guatemala
and Costa Rica,55 In the 1820s and 1830s, a handful of exiled Bonapartist officers made their
mark in the armies of Francisco Morazán and Manuel José Arce. 56 Other Frenchmen quickly
established important mercantile operations in Guatemala, El Salvador, Nicaragua and Costa
Rica and were “almost equally divided among the states” by the 1840s. However, the French
population, too, was still a small one.57
At first, foreigners seem to have lived according to the Constitution’s demands, following
local laws and resolving their problems without recourse to agents of their native governments.
In large part, this was due to the gradual process of official and unofficial recognition of Central
America’s independence by European and other American countries, with only the United States
signing a commercial treaty (1826) with the Federation. France and Britain proved unable to
conclude similar texts and Spain withheld recognition of the region’s independence until 1863.58
With no treaties in place, foreign powers had few representatives on the isthmus, and most
hesitated to challenge the Central American Federation’s actions. France sent several consuls in
the region starting in the 1830s, and the United States achieved an effective presence when E.
George Squier arrived as Chargé d’Affaires in 1849. However, the status of foreign residents
54
See William Griffith, Empire in the Wilderness: Foreign Colonization and Development in Guatemala, 18341844 (Chapel Hill, University of North Carolina Press, 1965).
55
Henry Dunn, Guatimala, or the Republic of Central America, in 1827-8 (London: J. Nisbet, 1829), 1-2; Robert
A. Naylor, “The British Role in Central America Prior to the Clayton-Bulwer Treaty of 1850,” Hispanic American
Historical Review 40:3 (August 1960), 367, N.13. Britons lived largely in Guatemala and Costa Rica, working as
merchants (9), engineers (9), miners (8), hotel keepers, coffee planters (2) and a variety of other trade professions
ranging from carpentry and boatbuilding to teaching, medicine, and surveying. Britain exported over 16,000 tons of
shipping from Belize by the mid 1820s
56
For Raoul see Adam Szaszdi, Nicolás Raoul y la república federal de Centroamérica (Madrid: Universidad de
Madrid, Seminario de Estudios Americanos, 1958).
57
MAE, CC-G, 2, ff. 480, 500-5. Perrin to MFA, Granada, 1 October1845, No. 5; Baradère to FM, Guatemala, 29
November 1845, No 71.
58
Spain signed its first treaties with Central American governments in 1850, and fully acknowledged its
independence in 1863. Woodward, Central America: A Nation Divided, 2nd ed. (New York: Oxford University
Press, 1985), 132.
21
had begun to change a decade earlier with the arrival of a very active British consul, Frederick
Chatfield, in 1834.59
Even had the consuls been present, in the early years of the republic, European
governments would have hesitated to intervene on behalf of their expatriate subjects when these
got into disputes with their host countries for they followed the premises laid out in Vattel to
respect a sovereign’s right over all residents. As late as 1832, the British foreign ministry
specifically warned British merchants that by choosing to establish businesses in areas of known
political unrest, they must suffer the consequences and not expect support from home.60 Two
years earlier, the French representative in Mexico, M. Cochelet, had been distinctly
unsympathetic to the idea of traveling to war-torn Central America to protect the dozen
Frenchmen he expected to find, arguing that since his fellow citizens “are in the service of the
government to be overthrown and have taken such an entrenched political position against the
individuals who seek to reassume power, their banishment from the republic would be the
gentlest penalty that the party called “Servile” [conservative] would inflict on them.”61 That is,
the French agent recognized the Central American government’s authority over resident
foreigners, and the right of that government even to banish Frenchmen who sided with the losing
side of a civil war. So due to the absence of formal treaties between Central America and foreign
nations and the consular approach of non-intervention on behalf of expatriate Europeans, for
several years the only laws applied in the republic were those of Central America.
Yet even in these optimal conditions, evidence mounted that integrating foreigners into
society would be more complex than the optimistic early legislators had hoped. Surprisingly,
one of the first cases demonstrated the reluctance of even the closest neighbors to integrate both
59
Rodríguez, A Palmerstonian Diplomat, 302.
Naylor, “The British Role,” 366.
61
MAE, CC-G Vol. 1 (1823-1843), ff. 176v-177v. Cochelet to FM, Mexico, 20 January 1832, No 8.
60
22
socially and politically as respectful long-term foreign residents. Pedro Nolasco Riesco, consul
of Chile in Sonsonate (El Salvador), quickly fomented conflict in the city of his residence by
demanding satisfaction from the Federal government in 1825 after a group of “youths” made
insulting remarks in front of his house. In his accusation, Riesco singled out the children of one
of Sonsonate’s Spanish residents, Pedro Campos, a merchant and former city councilor.62
Although the case seems to have died quickly in the investigation undertaken by Sonsonate’s
alcalde, the testimony upends assumptions that Spaniards would make poor national citizens
while Spanish Americans would share the values and interests of their neighbors. It also
foreshadows the challenges that consuls of more powerful European countries would pose for
Central American governments a decade later.
The idea that a foreigner should do more than just pay lip service to local duties lay at the
heart of Campos’ rebuttal of Riesco’s allegations, reflecting both the tradition of Spanish
American vecindad and Vattel’s principles. Denying that any offensive action had occurred,
Campos argued that children in the street were just up to carnival hijinks. He then explained
both the underlying cause of Riesco’s allegations and the reason that his sons had been singled
out. Campos reported that he had served as Riesco’s agent for several years until the Chilean
had taken him into dislike because Campos had chastised him for “intimidating some indigents.”
Further upsetting Riesco, Campos had rejected his argument that that as Consul of Chile he could
not be tried or punished by a Central American judge, and had insisted that Riesco pay for some
indigo in silver rather than gold as the vendor wanted and Riesco had contracted to do as
“corresponded to his good name and that of his republic”. Campos also chided the Chilean for
speaking ill of Sonsonate’s women in front of someone (himself) who had married in the
62
AMS, Libros de Actas, Sonsonate, Campo had been a regidor (1811-1812) and alcalde (1814, 1820).Two of his
sons followed him as city councilors and state congressmen. One, Rafael Campo y Pomar, became President of El
Salvador.
23
country. Finally, Campos pointed out that Riesco had not yet been recognized by the Federation
as Chile’s consul “because he has not wanted to swear and recognize our absolute
independence.”63 By claiming Central America’s independence as his own, Campos sealed his
case and underlined his allegiance to the new country, in sharp contrast to Riesco’s disregard for
Central America’s denizens and government.
Nolasco’s disdain for local customs, fellow residents, and contracts was an early
indication by a fellow Spanish American that foreigners could bring conflict as well as skills to
the community, even when their interest in bending (if not breaking) local law and custom did
not have backing from a powerful home government. Campos, a Spaniard fully integrated into
Sonsonate society by marriage as well as office-holding, had clearly become the type of
immigrant Central America wanted: a vecino as well as a ciudadano. He respected the letter of
the law, and pushed others to behave in the same fashion, seeking Riesco’s fulfillment of
contractual obligations. Beyond this, however, Campos held the Chilean to a standard of
behavior that implied recognition of communal citizenship, including not abusing power with the
poor, accepting the jurisdiction of the national and state institutions of justice, and speaking
respectfully of his fellow residents. That is, Campos insisted that Riesco behave as a member of
the community whether as a naturalized Central American or Chilean consul. Campos’ delicacy
was later singled out for public praise for recognizing that as a naturalized Spaniard it would be
impolitic (if legal) for him to participate in national politics in the early years of the republic. 64
Although Campos’ argument hinged on legal foundations, his examples showed that beyond
63
AMS Caja 2, Juzgado 1821-1829, Sobre insultos q reclama el Sr Consul de Chile a D Pedro N Riesco, a los hijos
del Sr D Pedro Campo. Moxica had been regidor in 1820, 1823 and 1825, and would serve again in this position in
1827 and 1832, as well as alcalde in 1827, 1833 and 1838.
64
Tulane LAL CAPE, Box 1, J.Y. Pontaza al Secretario del Gobierno del Estado de Guatemala, José Francisco de
Córdova, 9 August 1828. The author wrote, “El C Pedro Campo, vecino de Sonsonate, es digno de presentarse
como dechado q debieran imitar los espanoles naturalizados en Centroamérica; ha sido llamado a servir varios
destinos y nunca ha querido admitir ninguno; porquedice y dice bien, que ellos no deben tomar parte en los negocios
del pais.
24
laws, a strong idea that being part of the national republic required roots and commitments to the
local republic. Riesco might be a citizen of the Chilean republic, but as a vecino in El Salvador
and the Central American Federation, he had obligations to fulfill the requirements of local
membership and strengthen rather than weaken legal system in his place of residence.
Campos’ litany of abuses committed by the would-be Chilean consul also showed that
the new Salvadoran government was not always able to ensure the implementation of its own
laws: clearly no authority had compelled Riesco to postpone claiming the status of consul until
he had formally recognized Central American independence and received government
credentials in return. Yet in the early years of the federation, despite weakness and division of
federal and state governments, it appeared that Central America would be able to impose its laws
on fractious residents, both natural and foreign-born. The most dramatic example of a successful
policy was the 1829 decision of the federal government and that of reinstated authorities of
Guatemala to expel Spaniards and natives who had participated in the “intrusive” Conservative
government that had come to power in the wake of a coup staged by the Federal president,
Manuel José de Arce, against the Liberal Guatemalan state authorities.
Spaniards came under attack in part because Spain not only had not recognized the
independence of its former colonies, but in the same year had launched troops from Havana at
the Mexican coast in a reconquest attempt. In response to perceived aggression, both Guatemala
and Mexico responded with expulsion orders for resident Spaniards.65 However, Central
American authorities’ handling of Spanish residents diverged substantially from Mexico’s.
Reprisals included both Spaniards and natives who had engaged in anti-national activity, and the
rule of law, however harsh, was used to determine which individuals should be amnestied and
For Mexico, see Sims, The Expulsion of Mexico’s Spaniards, especially Chapter 9. Expulsion in Mexico was
complicated because many states drew up their own laws rather than following a federal decree.
65
25
which stand trial or accept confiscation of 1/3 of their goods and exile for their politically
imprudent choices.66 While many Spaniards left Central America, those with demonstrated longterm residence and sympathy to the new government received expedited naturalization from
federal and state governments to prevent their deportation, including merchant Juan Matheu
(1829), priest Ignacio Barnoya (1829) and soldier Manuel Jonama (1829). 67 The traditional
means of demonstrating local integration—education, domicile and service—retained their
power to influence decisions about national membership. Matheu sat on Guatemala City’s
municipal council, Barnoya is credited with helping Chiapas transition to independence in 1821,
and Jonama served with the federal forces that restored Liberal government to Guatemala.
Matheu and Jonama also had Central American wives.68 The point was most clear in an amnesty
offered to another Spaniard, Domingo Payes, who might have been “European in origin” but was
exempted from expulsion because he had been raised in Guatemala City from his youth,
accepted the constitution in 1824, and “far from being harmful to society, “is one if its better
servants for his ancient dedication to serving the sick at the hospital.”69
However moderate, the experience with the Spaniards marked a turning point in Central
American legislation. Despite their small numbers, after 1829 specific foreigners were singled
out as dangerous to the political stability and integrity of the nation and new legislation
introduced restrictions on their rights and privileges. In 1830, a second federal decree confirmed
66
Archivo General de Centro America (AGCA) B 2434-51319. Jose Santos Arriola, Totonicapán, July 8, 1829, to
Sec Gral del Gbno del Estado: 51348, July 13 Rodriguez to Government; On the same footing as Spaniards, some
Central Americans, including Tadeo Piñol and José Perfecto Azmitia, sought and received “indultos,” claiming they
had served the illegitimate government under duress, and others, including Juan José Aycinena, who opposed the
new authorities asked for and received passports to leave. AGCA Leg. 2434, Exp 51486: Tadeo Pinol,1829; Exp
51496, José Perfecto Azmitia (12 August 1829); Passports: AGCA Leg. 2434, Exp 51481 (Fdo Naxera and Mnl
Rubio, Belize); 51483, José Antonio Palomo; 51484, Miguel Asturias; 51499 (Antonio Aycinena), 51505 (Francisco
Angulo) (all August 1830).
67
NYPL-RBC *KRK+ Central, Federal naturalization decrees for Juan Matheu (29 September 1829), Pbro. Ignacio
Barnoya (18 November 1829); AGCA B 4126-92809, f 24 Manuel Jonama (16 October 1829).
68
Ibid.
69
AGCA B 2434-51412, 23 July 1830.
26
a trade ban with Spain and forbade entry into Central America of any “subject of the Spanish
government, of whatever class, age and condition,” asking governors to evaluate each departure
and entry of Spanish residents individually as “most convenient to the security and general
interest of the nation.” An 1830 federal law withdrew the right of naturalized Spaniards to hold
government or military office (with exception for those already in the military) and ordered
Spaniards (naturalized or not) to remove from ports and coasts for “as long as Spain retains
hostile designs against the countries of America that have become independent.”70 Nicaragua
followed with a law confiscating Spanish goods71
While the 1829-1830 legislation only targeted Spaniards, the documents in which the
government discussed issued passports frequently referred to those departing as “European,”
suggesting a blurring of lines that saw not just Spaniards but other Europeans as a threat.72 By
November 1830, Guatemala decreed that when auctioning off state property, a “natural,”
including a foreigner with a carta de naturaleza, should be preferred over a foreigner.73 As the
United States had withdrawn suffrage from resident aliens during the War of 1812, Central
America began to enact legislation limiting certain rights and privileges initially extended to
foreign residents
Still, as Liberals assumed power and ushered in a wave of stability, it seemed that the
Central American government would achieve its initial goal of defining a national republic with
a national citizenry. While the initial enthusiasm and naiveté about providing asylum and
opportunity to foreign residents had dimmed with the experiences of the first civil war, French
NYPL-RBC, *KRK+ Central, 9 June 1830, Decree. Preventing Spaniards from holding office followed Mexico’s
10May 1827 law, Sims, The Expulsion of Mexico’s Spaniards, 19
71
Nicaragua, Recopilación de las leyes, decretos y acuerdos (Managua: Imprenta del Gobierno, 1867), 37-8.
72
AGCA B Legajo 2434-51346, 14 July 1830
73
Guatemala Colección de leyes, Decree 81, 10 November 1830, Law drafted to clarify if the state had to prefer
native sons in sale of land intended for purchase/rent for foreign colonization.
70
27
consul Cochelet celebrated the achievements of this fledgling country and its leaders in 1830.
“The Central American government is animated with a republican spirit …It is under the
influence of no foreign power, and even fights England whose commercial interests it seeks to
oppose. The principles of the law of nations, civil and religious liberty are widespread here and
openly proclaimed.”74
III.
The Consul and the Citizen
By the late 1830s, no French Consul would have agreed with Cochelet’s analysis. As
states fought each other across a variety of borders and for a plethora of reasons during the
second decade of federal rule, their governments turned increasingly to foreign residents to pay
“forced contributions” and war taxes and send sons into the army. Foreigners who believed
themselves exempt from contributing became targets of hostility because many of them had done
fairly well in the businesses and practices they established in Central America. As a result of
visible success, reported two French traders in Yuscarán (Honduras) in 1836, “vicious forms of
justice too frequently… demonstrate the jealousy that the inhabitants bear against any foreigner
who by his industry knows how to achieve well being.”75
By this time, with permanent French and British diplomatic agents present, expatriates
found a sympathetic audience for complaints that they were being singled out to contribute
resources to what must have seemed like never-ending conflicts. British consul Frederick
Chatfield (1834-1849) single-handedly reversed a British non-involvement policy and
aggressively sought his government’s support to reimburse expatriates for improper levies.
Despite explicit instructions to the contrary, in the midst of crisis in 1837 Guatemala, Chatfield
74
MAE, CC-G 1: ff. 109-13. Cochelet to FM, 20 Dec 1830, Aff Pol, # 80.
MAE, CC-G, 1: f. 60. October 7, 1836 letter of merchants J. Leclerc and Joseph Durand included in San Salvador,
30 December 1836, No. 12.
75
28
developed a “forced-loan doctrine” after deciding that honorary vice consul William Hall had
been singled out to pay a disproportionate amount in a forced contribution. He wrote Foreign
Minister Lord Palmerston, that “I am decided not to permit any English people to be molested in
their property during the tumults which appear likely to occur. If it is alleged that we have no
treaty and therefore have no promise of protection, you can let it be known that I reply, that the
English government by the same rule is not engaged to withhold all the means of retaliation
which may be within power.” Guatemala’s government, when challenged, argued that based on
the 1824 constitution it did have a right to tax foreign residents, to which Chatfield replied that
he would not permit “a single Englishman to be taxed for partisan politics.”76 In June 1838,
Lord Palmerston had informed Chatfield that his position was not legally sound,77 for the same
reasons that Britain had earlier refused to intervene on its nationals’ behalf: the right of each
country to internal sovereignty. However, jurists in London concluded by 1840 that, without a
treaty, the British had no legal justification for action on any Central American laws except in
one case: when British subjects were singled out from the general population, Chatfield could
demand satisfaction.78 While there seems to be no direct mention of Vattel and the Law of
Nations in this decision, the logic parallels the text on jurisdiction perfectly.79 So from 1840 to
1851, Chatfield brought gunboats to blockade Central American ports as a form of retribution for
inappropriate taxation, and succeeded in achieving some settlements from Central American
governments.
76
Rodríguez, A Palmerstonian Diplomat,140-1.
Rodríguez, A Palmerstonian Diplomat, 164.
78
Queen’s Advocate John Backhouse to James Stephen, 12 July 1840, discussed in Naylor, “The British Role,” 372.
79
Vattel, Law of Nations, Book 1, Chapter 7, Section 84 Jurisdiction, “excepting in cases where justice is refused, or
unless palpable and evident injustice done, or rules and forms openly violated, or, finally, an odious distinction
made, to the prejudice of his subjects, or of foreigners in general.”
77
29
France’s consuls followed Palmerston’s example in terms of energetically seeking
damages and repayments for loans, vandalism by armies and insults to individuals. However,
the French government generally refused to send navy ships to blockade Central America’s ports
because of the region’s lack of economic and political importance. This is not because France
disagreed with Chatfield’s principle. When France initiated a “Pastry War” with Mexico in
1838, French authorities argued that while they were not going to war, the principles of the Law
of Nations required action to prevent French nationals from paying forced contributions and to
punish Mexican inability to administer justice properly.80 So, adopting the British view that
unfairly distributed forced taxes were should not be paid by foreigners, the French consuls also
pled their citizens’ cases to state and national governments. These agents owed their
considerable success to both French negotiating skills and local authorities’ interest in using
France’s presence to offset British power. Letters from the late 1830s and 1840s from Auguste
Mahelin, Alphonse Huet and E. Perrin inform the French Foreign Ministry of cases when merely
challenging forced levies led to restitution or a decision not to collect the taxes.81
The effective protections and restitution that consuls were able to offer their expatriates
came at the cost of warm feelings for foreigners. Thomas Schoonover has argued that
“xenophobic reactions multiplied” in Central America by the 1830s.82 However xenophobia
implies an irrational fear. The hostility felt by Central American governors was not irrational. US
80
See Robertson, The French in Mexico, 228-232. Among French demands were removal of specific officials from
Mexico’s government who were identified with abuse of foreigners
81
The consular correspondence is filled with discussion of French citizen claims, consular investigations and then
interventions. Perhaps one reason the consuls were reasonably well received by state governments was that they
frequently investigated claims before raising them with the Central Americans and only pursued the ones they found
valid, and only for amounts that could be verified. See for example, MAE, CC-G Vol 1 (1840-1843), ff. 436-41.
Albert Huet to FM, 25 January 1843, No 40; Correspondense Consulaire et Commerciale (San Salvador, 18331843), ff. 134, 212, 242. Auguste Mahelin to FM, San Salvador, 1 March 1838, No 44; Mahelin to FM, San
Salvador, No 72, 1 April 1839; Mahelin to FM, Guatemala, 5 November 1839, No 89; CC-G Vol 2 (1844-1845), f.
11, Baradère to FM, Guatemala, 20 February 1844.
82
Thomas Schoonover, The French in Central America: Culture and Commerce, 1820-1930 (Wilmington, DE:
Scholarly Resources Books, 2000), 14.
30
vice consul Henry Savage reported a speech of Juan José Flores, Minister of State and Foreign
Affairs of Guatemala, to the state congress in the spring of 1842. Flores railed that “British
functionaries provided with armed vessels instead of credentials exact with threats the payment of
their demands, be they just or unjust, liquidated or not, arrogating rights to themselves and fixing a
period during which payment is to be made.”83 While use of blockades frustrated government
authorities, equally upsetting was the growing tendency of foreign residents to seek recourse for
their problems not within the state system, but by going outside it to their consuls. Eloquently
making this point in 1843, Nicaraguan minister Francisco Castellon insisted that Chatfield provide
fact to bolster accusations of injustices he claimed had been suffered by Britons in his country,
repeating that
British subjects who live in this state, even when they retain the fueros of foreignness that at
each step they demand, have just like the sons of this country their civil rights and enjoy all
constitutional guarantees. And so it seems quite natural that if the lower authorities failed to
provide them justice, they use legal means before our superior tribunals, without involving
their consul. [The consul] is obliged to protect his nationals, but should not do it except in
cases that the law of nations permits, since it is constant that every foreigner upon setting
foot on the territory of a State, submits himself to the laws that rule in it.”84
Central American governments were growing hostile to foreign residents and foreign nationals
because they seemed to be acting outside the national arena to resolve their issues, using force and
power rather than legal means to protect expatriates. As tempers frayed, they began to make
explicit reference to the original tenets of the Law of Nations to support their positions.
Both foreign agents and Central American governments relied on elements of the Law of
Nations to justify their positions. The foreigners held that Central America did not fulfill its
obligations to protect foreign nationals or treat them equally and that businessmen should not be
called upon to pay certain taxes or give military service. The Central Americans on the other
83
84
Naylor, “The British Role,” 373, N. 25.
MAE, CC-G, 2: ff. 20v-21v. Min. Francisco Castellon to Frederick Chatfield, 7 December 1843. My italics.
31
hand decried the foreign recourse to power plays and extra-judicial resolution to achieve what
their expatriates desired as incompatible with the law of nations. Both cases contained an
element of truth, as Central American governments proved unable to keep low-level
administrators and soldiers from pressuring foreign residents to pay exorbitant taxes or pillaging,
and foreign governments relied on pressure rather than reason to achieve their goals. For both
internal and external reasons, national and state governments were thus prevented from
exercising jurisdiction over residents on their own territory, a primary responsibility and right.
Internal strife limited the state’s ability to direct and control its own agents. At the same time, as
consuls grew to assume the role of interpreter both of local law and international law, the ability
of Central America’s government to ensure that it acted in favor of its own national interests
even within its own jurisdiction could not be guaranteed by a legal system based on the
assumption that foreigners would arrive and seek naturalization and integration to protect their
interests in the new community, rather than cling to foreign nationality as the more beneficial
status. Early legislators expected that immigrants would change allegiance and citizenship from
their European homelands to their adopted republics. However, European actions demonstrated
that from their perspective, expatriates remained first and foremost citizens of their home
republics and, regardless of any claims that Central American authorities might claim, would
defend their interests. When the initial assumption of assimilation was not met, it became clear
that the formulas developed by the early theorists of international law were inadequate to address
the situation.
IV.
The Permanent Resident
By 1838, the initial optimistic generation had proved unable to centralize fragmenting
authority and construct a viable republic. Optimism that foreign residents would provide
32
economic benefits for a majority population had also not borne out. Further, limits to the theory
that foreigners would naturalize and become citizens had become obvious. Central America
responded to this new situation by revisiting the way its legal system treated foreigners. The first
opportunity came in 1838, when the weakened federal government released its constituent states
to form five sovereign countries. The Central American constitutions of the late 1830s and early
1840s did not drastically alter national citizenship for the native born or limit naturalization.
Birth within the territory or naturalization provided nationality and establishing a household
upon achieving the age of majority provided access to citizenship. No state constitutions of this
period instituted new literacy, property or other restrictions intended to reduce the number of
adult nationals eligible for citizenship, although they began to vary the age of majority.85 Most
ended the hierarchy of foreigners; only Nicaragua continued to distinguish between Spaniards,
nationals of American republics, and foreigners.86 For the rest, owning property, marrying
locally and vecindad of between three and five years were the conditions required of any
foreigner to receive a carta de naturaleza from the new state governments.87 Thus a society
where nationality and citizenship were based on birth in the country, rather than race, and the
incorporation of newcomers based on economic, social and physical integration into a
community remained constant.
One innovation in the constitutions was explicit language treating the status of residents
who were neither native nor naturalized. The Federation’s 1824 definition of all people in the
state as comprising the nation gave way to an explicit recognition that the government had to
address residents who were not native, not naturalized and not likely to become so. Each
85
Constitution of Nicaragua (1838, Art 17-19); Honduras (1839, Art 9); El Salvador (1841, Art. 5); Guatemala, Decree 76
(1839, Art. 2).
86
Constitution of Nicaragua, 1838, Art. 20.
87
Constitution of Honduras, 1848, Art 10; Constitution of El Salvador, 1841, Art 6.
33
constitution included an article that specified that “resident foreigners” or “inhabitants” as well
as “natives” were “responsible for all regular taxes and obligations as the natives; and if they are
inappropriately molested in their persons and properties, have the same guarantees as citizens to
seek justice.” 88 Guatemala’s 1839 decree on citizenship went beyond the economic obligations
to underline that any inhabitant had to be “faithful to his patria, to defend her…89 The 1842 pact
signed by El Salvador, Honduras and Nicaragua in hopes of reviving the federation also
contained language stating that foreigners with land, shops, married in the country, four years of
residence or a letter of naturalization should pay extraordinary contributions and forced
government loans, as long as the government charged them “the just proportion” that laws
established for natives.90 In all these formulas, the new state constitutions recognized a
reciprocal relationship between resident foreigners and the governments they chose to live under:
equal treatment with native sons in exchange for equal loyalty and service. While
acknowledging that foreigners might be citizens of other countries, the precepts of international
law provided the framework to demand substantial if not full allegiance and participation in
national society.
If El Salvador’s code emphasized that foreigners would have the same guarantees as its
citizens, it was Nicaragua’s 1838 Constitution that clarified the intent of the redefined
relationship: “foreigners and transients will enjoy all the guarantees the Constitution provides in
the same manner as the natives of the country.”91 That is, each government codified its interest
in accepting the principle that a state had the right to demand loyalty, taxes and even services
88
Constitutions: El Salvador, Article 7. See also Costa Rica (1841), Article 2.1; Costa Rica (1847), Article 35.;
Nicaragua (1838), Article 48; Guatemala, Decree 76, Art 5. (5 Dec 1839) in Luis Mariñas Otero, Las Constituciones
de Guatemala (Madrid, Ediciones Cultura Hispánica 1962), 375-382.; Honduras (1848), Article 12.
89
Guatemala, Decree 76, Art 4. (5 Dec 1839), in Mariñas Otero, Guatemala, 375-382.
90
Pacto de Chinandega, 1842, Article 13.
91
Nicaragua, 1838, Article 15. My italics.
34
from foreigners who chose to move there without the interference of a third party to dispute that
claim. The message was that expatriates, like nationals, should present grievances to the judicial
or even political institutions in their country of residence, rather than to representatives of their
native country who represented a foreign power there. The animosity behind this legal change
was apparent in the opinion Nicaraguan lawyer Benito Rosales’ issued when consulted in 1842
on whether French residents had to pay forced contributions. This future government minister
stated that “foreigners need to pay like natives, and if they refuse, we must break down their
doors … and imprison them.”92
A more aggressive move to reassert authority over the foreign-born appeared in El
Salvador’s 1841 constitution. It hinted at the next way that this country would attempt to control
its foreign residents and remove them from the jurisdiction of consuls whose intervention not
only showed the state’s inability to comply with its obligation to protect its foreign population,
but proved costly in terms of blockades and reparation payments. If Frenchmen and Englishmen
chose not to become citizens or natives of El Salvador, the state would make naturalization an
automatic consequence of residence and property-ownership, conditions that most foreign
merchants would easily meet. According to Article 6, five years’ residence would automatically
confer citizenship on a foreign resident who also had real estate holdings; marriage to a
Salvadoran woman would reduce the residency requirement to three years.93 While automating
the naturalization process undermined the idea of volitional allegiance, that is, an individual’s
right to chose his nationality, it was not contrary to the principles of the Law of Nations.94 For
the individual retained the same right he had always had when required by his adoptive country
92
MAE, CC-G, 2: ff. 275v-276v, Baradère to FM, Guatemala, 23 December 1844, No 42.
Constitution of El Salvador (1841), Article 6.
94
George Cogordan, Droit des gens : la nationalité au point de vue des rapports internationaux 2nd ed. (Paris: L.
Larose et Forcel, 1890), 17.
93
35
to do something he did not want to do: leave. Nonetheless, the principle made French consul
Huet “anxious” for he realized that if it were implemented, he would lose his ability to defend
Frenchmen against paying forced contributions like nationals.95
This was the law on the books which led Bertrand Save into difficulties when elected
alcalde of Sonsonate in 1841. By using property, residency and marriage to a local woman to
judge an individual’s domicile, Salvadoran authorities were simply providing a modern form to
the traditional concept of vecindad. Under these conditions, they could argue that Save, despite
his disclaimer, had indeed been “naturalized de facto,” despite the Frenchman’s claims to the
contrary, for he met the conditions established by the new constitution and was under “the
obligation to support communal responsibilities (cargas).”96 Yet Save’s defense clearly struck a
nerve, so El Salvador passed a law making more explicit the new commitment to automatic
incorporation on March 4, 1844. The new law automatically naturalized any foreigner with five
years’ residence in the country.97 In this way, foreign residents would, with time, be compelled
to admit the primacy of Central American law as they became absorbed into the republic,
regardless of their individual will. Although the automaticity of naturalizaiton was unwelcome,
it was not outrageously coercive from a Central American perspective, for the individual had
ample time to leave should he not be willing to accept these conditions. However, according to
François Baradère, French consul at the time, Argentina, Mexico and other Spanish American
republics, already drafting legislation “hostile” to foreigners, could follow San Salvador’s
example, making the presence and protection of a consul essentially irrelevant.98
95
MAE, CC-G, 2: f. 389, Huet to FM, Guatemala 3 July 1844, No. 12.
MAE, CC-G, 2 : ff. 240-241v. Bertrand Save to Governor of Sonsonate, 26 December, 1843; Governor, Santa
Ana, 8 January 1844, to José Antonio Ramos, Alcalde Constitucional Primero, Sonsonate.
97
Decree 5 (Naturalization), El Salvador, 7 March 1844 in MAE CC-G, 2: ff. 65-6.
98
MAE, CC-G, 2: ff. 68-9, François Baradère to FM, 30 March 1844.
96
36
El Salvador’s intent to undermine the jurisdiction of a foreign agent on its national
territory was effective, at least with French residents in the country. Frenchmen André Benard,
François Satre and Nicolas Goussin of Granada (Nicaragua) complained almost immediately that
despite their consul’s intervention on their behalf, they received only “scorn” from the
government in the form of “forced contributions, menaces, violation of the droit des gens, of our
individual liberty, of that of our houses, the compulsory taking (prise forcée) of our persons, of
our arms, of our horses: all has been practiced against us.”99 When M. Benard was out of town,
local authorities sought to enlist his son in the military. Over the protests of Mme. Benard, who
explained that Frenchmen could not take up arms in a foreign country without the King’s
authorization and without incurring “the penalties of the law,” the offending justice replied,
“Every foreigner was a Central American after five years’ residence.” Worse, in the eyes of
Mme. Benard, “he mocked our laws.” When she returned that the law had not been applied to
Britons who had resided 20 years in the country and married there, he “vulgarly invited us to
shut up.”100 The insistent municipal official clearly understood the parameters of the new law
and its intent, less vulgarly phrased, to “shut up” the foreign agents who wished their own laws
to hold more weight than El Salvador’s. Unable to argue that the law was illegal in theory,
French Consul Baradère used the principle, recognized since Roman times, that no law should be
retroactive and that this law, therefore, should not apply to those who entered Central America in
the 1820s.101 Within a year the French consul had not only received Nicaragua’s promise to pay
back the forced loans, but convinced Mme. Benard to drop demands for 500 pesos for her son’s
99
MAE, CC-G, 2: f. 274, Baradere to FM, 23 December 1844. The letter of the three Frenchmen, Andres Benard,
Fr Satre and Nas. Goussin, is on ff. 275-6.
100
MAE, CC-G, 2: ff. 275v-276v , Baradère, 23 December 1844.
101
MAE CC-G, 2: ff. 264-5, Baradère to El Salvador Minister Jiménez, 13 December 1844.
37
military service since his investigation revealed that the youth had spent fewer than 24 hours in
an honor guard and never left his town.102
Despite the happy ending, Mme. Benard was right both to point out that targeted
implementation of the law was illegal and that her son’s French citizenship was at risk if he
joined the Salvadoran army. Under international law, a state was held accountable for fair
application of its own legislation. British residents as well as French who met criteria for
automatic naturalization should have been considered Salvadorans. However, while Salvadoran
naturalization made young Benard eligible for military service, it was not El Salvador’s
responsibility to protect his French citizenship. The only right a foreign resident when a
sovereign power in whose jurisdiction he resided asked him to do something unacceptable was to
leave. The Benards could have voted with their feet and left El Salvador as a place too
dangerous to reside. However, they had no legal grounds, either national or international, to
oppose the laws that stripped them of their rights as foreigners and put them on the same national
footing as native-born Salvadorans.
El Salvador struck down its legislation a year later under political pressure from the
foreign consuls whose power the law intended to undermine, while reminding readers in the
preamble that the “evils foreigners cause will be inevitable as long as there is no strong national
government to contain them and fix by treaties an international law.” The repealing decree
acknowledged that naturalization “should not be forced,” however the reason was not that the
Salvadoran decree had been illegal. On the contrary, the justification given was that “because in
some European nations, nationals cannot lose the quality of citizenship except through explicit
acts.” That is, El Salvador’s automatic naturalization was problematic for foreign residents
because of its incompatibility with European laws. Why, then, did not the Europeans change
102
MAE CC-G, 2: ff. 473-v, Perrin to FM Guizot, No 4, Granada, 25 September 1845.
38
their laws to complement El Salvador’s? Railing against the injustice of being a weak state, El
Salvador’s legislators added to the record that they had acted because the consuls had argued that
they could not overturn their own laws “for the powerful reason that they spoke in the name of
strong nations.”103 Once again, the law of the strong against the weak was used to undermine a
legal, if coercive, approach taken by a small state to find a way to make its own authority
supercede that of a foreign government in its own jurisdiction.
El Salvador’s tactic in 1844 was not the only legislation that sought to buttress a Central
American state’s authority over its residents. Using an approach diametrically opposed to El
Salvador’s automatic inclusion, Nicaragua introduced a strategy used in Mexico at about the
same time: it gave legislative course to what the French consul called its “old hatreds against
foreigners” in response to two British blockades (1842 and 1844) by passing two laws designed
to compel foreign residents to naturalize of their own accord.104 The first law (18 May 1844)
forbade foreigners to marry, run stores or own property without first stating an intent to
naturalize and receiving “sovereign consent.” Any foreigner failing to make this effort would be
punished: spouses who flouted the law would have to leave the territory and Nicaraguan property
would be subject to confiscation.105 Ironically, the only foreigners excepted from this decree
were “Americans from the republics previously called Spanish colonies” and Spaniards.106
Twenty years after foreigners from the madre patria seemed the most threatening immigrants,
they had become the most trusted, whereas the real “foreigners” who had been welcomed so
openly for their potential skills, knowledge and capital had become the threat whose fangs could
103
MAE CC-G, 2: ff. 477-v. The law was repealed 7 June 1845 on the “reclamations of the Consuls.”
Barker, “The French Colony,” 608.
105
MAE, CC-G, 2: ff. 477-8v. To give the measures additional weight, the decree also punished the state officials
and priests who facilitated the law-breaking
106
Ibid. While not retroactive, the law did require those already resident to observe its provisions in future. Two
small adjustments were added in 1845: established foreign residents were excluded from those affected by the law,
and foreigners might acquire property if it was part of a judicial settlement
104
39
be drawn only by making them full members of national society and thus unable to seek the
special protections that their resident consuls provided. Once again, the approach was justifiable
under the tenets of the Law of Nations. However, under pressure from the French consul, the
Nicaraguan Ministry of Foreign Affairs agreed to repeal it.107 If in theory a weak country had
the right to make foreigners citizens, in practice a foreigner of a strong country could opt to
retain his nationality over the objections of his country of residence, especially when he had
recourse to a consul.
V.
Man without a Country
Difficulty in determining the nationality of foreign residents in the revolutionary Atlantic
largely emerged from conflicts between an individual and the government of his adopted
country. However, it was not the only form of complication. The intervention of the laws of
nationality of the country of origin could change an individual’s relation to his republic and thus
his position as an expatriate even when the individual remained in an overseas jurisdiction. M.
Cornay de Saint Victor, a “Frenchman by birth” and doctor established in El Salvador in the
1830s, wished to register as a French resident of Central America with the consul. However,
first Consul Mahelin and then Consul Huet refused to register him, questioning his status. Why?
Citing articles 17 and 21 of the French Civil Code, Huet argued that Cornay had lost the
“quality” of being a Frenchman, that is, his nationality, by taking service with a foreign
government.108 While resident in León (Nicaragua) in 1832, he had accepted General Francisco
Morazán’s offer to work as a surgeon in the federal army for 500 pesos monthly since he was the
only doctor in the city. His time as a military doctor was brief; he later became chief surgeon of
107
MAE CC-G, 2: f. 471v, Perrin to FM Guizot, Granada, 25 September 1845, No 4.
France, Code Civil (1804). Article 17, Section 2, held that French nationality was lost by “non-authorized
acceptance of public functions conferred by a foreign government. Article 21 revoked status of a Frenchman who
undertook foreign military service without government authorization.
108
40
the León hospital, and then moved to San Salvador where he had established a private medical
practice and pharmacy. Cornay wrote on his own behalf, claiming that he had not fully
understood the law and that his act had been involuntary: “I accepted and the government gave
me a license (brevet), but did not think I could lose my “quality” of being French,” he wrote in
1842. “If I had known the consequences I would not have accepted. I thought there was a
distinction between “civil service” or salaried military, and being a doctor, whose mission is to
care for the ill, regardless of the clothes they wear.”109 Consul Huet argued that since Cornay
had expressed interest in his citizenship before difficulties with the Salvadoran government
began, had a reputation “that could not be better,” and believed that he had acted unknowingly,
his case was plausible, and so the consul consulted the Ministry of Foreign Affairs or its
determination.110 The Minister, not convinced by arguments of ignorance or of reputation,
replied that the Garde des Sceaux confirmed that Cornay had indeed lost his “qualité de français”
under articles 17 and 21 of the Civil Code, and could not return to France without the specific
permission of the king and fulfilling the requirements to recover it.111 To regain his citizenship,
according to article 18, he would need government permission to return to France, to declare his
wish to permanently reside there, and to renounce any distinction contrary to French law such as
a title of nobility.112 That is, Cornay would have to leave El Salvador and move to France to
recover his nationality.
In light of the French decision, to whose republic did Cornay belong? He had apparently
never naturalized in El Salvador, and had been stripped of his French nationality. By the late 19th
century, theorists were concerned about just this issue. For example, jurist George Cogordan
109
MAE, CC-G 1: ff. 369-v, Victor Cornay to Consul Albert Huet, May 1842.
MAE CC-G 1: ff. 367-8, Huet to FM, Guatemala, 13 May 1842, No. 6 Huet to Cornay de Saint Victor,
Guatemala, 11 May 1842.
111
MAE, CC-G 1: ff. 491-2, Foreign Ministry Instruction to Huet, 26 jun 43, No. 21.
112
France, Code Civil (1804), Article 18.
110
41
argued in his text on the relationship between the Law of Nations and nationality that “[t]he loss of
nationality ought...to be necessarily tied to the acquisition of a new one...”113 While Cornay could
eventually regain his French nationality under French law or seek naturalization under Central
American law, the decision of the French government apparently left him stateless in the
meantime. It would be interesting to know whether this unhappy doctor attempted to regain his
original nationality or sought naturalization in Guatemala, where he resided in 1842, or El
Salvador, where he had abandoned his business. In the meantime, he experienced the most
difficult legal position that the new constitutional order created for foreigners: that of belonging to
no republic at all.
CONCLUSION
The study of citizenship in early republican Spanish America has focused on suffrage and
integration of members of society of Indian and African origins as the substantial challenge of
defining a national citizenship faced by the continent’s first legislatures and executives. As this
paper shows, by independence, Central American society had already accepted the principle of a
generous, if not universal, adult male suffrage that ignored race as a category and reduced the
economic status of an individual given full political rights to someone who was self-supporting
rather than requiring property ownership. Citizenship’s rules were clear. Thus, the major
category of individual complicating the creation of a homogeneous body politic was the
foreigner. Nationality had yet to be fully understood. Drawing from principles of the Law of
Nations developed in the eighteenth century and the examples offered in the North American
(1787), French (1791) and Spanish (1812) constitutions, Central American statesmen refined the
definition, rights and privileges of citizens, nationals, and foreigners over twenty years in their
own state and national constitutions and laws. From optimistic legislation meant to facilitate
113
Cogordan, Droit des gens,11, 14, 18.
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residency and the naturalization they assumed foreigners would seek, Central American
lawmakers learned to establish policies to withdraw privileges or to automate naturalization to
compel foreigners to become fully integrated members of the republic.
However, there was no single answer to what republic mattered in issues of belonging. For
the Bertrand Save who refused municipal office in Sonsonate to remain a Frenchman there was a
Juan Ferrari of Tegucigalpa who accepted naturalization in Honduras to keep his municipal
judgeship. Men like Pedro Campos and Bertrand Save recognized that there was local citizenship
in terms of rights and obligations to the community they resided in, a recognition shared by state
officials, but not originally codified in national laws. It took fifteen years for legislators to borrow
from the language of the Law of Nations to confront permanent residents they had expected to
become nationals and then citizens with the responsibility to contribute more than the minimum to
society. In so doing, they essentially codified the ancient regime tradition of vecindad which
required civic duty of all residents, regardless of their status as citizens or nationals. If a foreigner
might not become a full member of society, he nonetheless shared a substantial number of rights
and obligations with its residents.
Most importantly, Central American governments learned that their laws over their own
territory and society could not always affect foreign-born residents. For immigrant members of
civil society had access to something that native-born citizens did not: a consul who could speak
from one nation to another to ensure that a government fulfilled its obligations to expatriates in
its jurisdiction. The most important recourse for foreigners was not the law of their native
country, but the obligation the native country learned to feel towards its expatriate members.
Like Central America’s governments, British and French foreign ministries evolved their policies
in this early period, changing from one of strict respect for foreign jurisdiction over expatriate
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Britons and Frenchmen, to one of holding foreign nations accountable for failure to “equitably”
enforce their own laws. From this shift, it was easy to rely on force rather than reason to punish
perceived abuse. If a French or British resident did not want to serve on a city council, pay a war
tax, join a local militia, or become a Central American citizen, the law of both countries
mattered. Both could provide protections for citizens, nationals and residents. And the law of
both mattered because actions that might not affect one’s status in a foreign land could have
irrevocable consequences at home, leaving an individual with a citizenship he might not desire or
no nationality at all.
In the first half of the nineteenth century, where the number of countries run by
legislatures and legal codes rather than monarchical fiat expanded and increased the number of
countries with citizens rather than subjects, policies were written and rewritten as individuals
appealed, consuls intervened, and governments changed. Not only European powers with
expatriate residents in the Americas, but also the United States moved towards a policy of
extending diplomatic protection to citizens abroad.114 By the second half of the century, the
problem of multiple states’ claims on an individual had become a question for jurists as well as
for practitioners, and the area of conflict was nationality, not citizenship. For while citizenship
was a political category which operated within a single country, nationality traveled with the
individual. In 1869, Sir Alexander Cockburn of Britain analyzed the problems arising from
conflicts between countries on nationalization and expatriation, particularly demands to protect
expatriate nationals abroad, and recommended rethinking Britain’s tenet of perpetual allegiance
as contributing to an undesirable dual nationality.115 In 1880 French jurist George Cogordan put
114
Kettner, 269-71. US developed a policy to protect of its own citizens abroad, excepting only naturalized citizens
when in their native land when the native government sought to enforce its laws.
115
Sir Alexander Cockburn, Nationality: or, The law relating to subjects and aliens, considered with a view to
future legislation. (London, W. Ridgway, 1869).
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his finger on the heart of the problem. “In the world as it is organized today,” he wrote, “with
the perpetual comings and goings of individuals across frontiers of the furthest countries, a
growing number of persons are interested in having their nationality recognized not only by one
state, but by all. It matters, for example, that when an Englishman naturalizes in Germany, he is
sure that his new nationality will be recognized not just by his new homeland (patrie) but also by
England.”116 The problem was clear, for “[i]I each state could disregard the rules of others,
these different rules [of naturalization] would be easy to apply, and no one could complain of
their [variety]. But [since the states are] legally independent …there is no branch of legislation
where the disagreement of legal dispositions gives rise to more conflicts.”117 Bertrand Save and
Victor Cornay would surely have agreed.
116
117
Cogordan, Droit des gens, 17.
Cogordan, Droit des gens, 16-17
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