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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 Please do not cite without author’s permission.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 long-time 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 office-holding 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 defacto.”[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 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 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 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 Haitian Revolution as conflicts resultingfrom 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 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 thatEuropean 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.

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), 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 “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 nation-state, 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.

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, 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 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.