CHAPTER XIII

RIGHTS OF FOREIGNERS IN SOUTH AMERICA

MIDST the oft-recurring scenes of disorder and violence such as described in the preceding chapter, it is sometimes difficult to determine how far a friendly government is justified in interposing its authority for the protection of the persons and property of its citizens transient or domiciled in those countries. Hitherto the government of the United States has been seldom able to fully satisfy its citizens on this point, even when those who invoked its protection were legally entitled to it; and it has been still less able to satisfy a hysterical public sentiment stimulated by a class of so-called "citizens" whose right to invoke its power in their behalf is, to say the least, extremely doubtful.

When a person presents himself at one of our legations or consulates and claims protection as an American citizen, the first thing to be determined is whether he is really a citizen; and this is often a much more difficult problem than is generally supposed. Of course I employ the term "citizen" in its generally accepted sense as describing a person of either sex, and of whatever condition, who owes allegiance to our government, and is entitled to its protection abroad.

By the old English common law, the basis of our jurisprudence, a native-born subject or citizen, of whatever class, owed an allegiance that was intrinsic, per

petual, and indestructible. It could not be divested by any act of his own, nor even by the act of his sovereign; nor was it in the power of any foreign state, by adopting or employing him, to dissolve the bond of his native allegiance. This slavish doctrine, one of the relics of the feudal ages, is now happily faded out of existence. But it was not abandoned by Great Britain until the year 1814, when prisoners of war, claimed as British subjects and taken in the service of the United States, were unconditionally exchanged. Indeed, it was not formally and explicitly abandoned until fifty-six years later, when, in 1870, Parliament passed an Act declaring that a British subject ceases to be such on becoming duly naturalized in some foreign state.

Our first attempt at a constitutional definition of the term citizen" occurs in the amended Article XIV., adopted July 28, 1868, wherein it is declared that, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state in which they reside." Up to that time, we searched in vain for some clear and authentic definition of the phrase "citizen of the United States." It could be found neither in our legislative annals nor in our judicial decisions, nor in the consentaneous action of any two of the three co-ordinate departments of the government. In its elements and its details, citizenship of the United States was as little understood, and as much open to speculative criticism, in 1861 as it was at the foundation of the government. For about eighty years we had enjoyed the practical benefits of a national citizenship without knowing precisely what it was. Experience had taught us neither the exact meaning of the term nor any very clear conception of the thing itself. In fact, we had practically denied its existence, while yet enjoying its benefits at

home and demanding the protection incident to it abroad. Thus Jefferson and his political disciples had strenuously maintained that, in a strictly legal sense, there was not and could not be any such thing as citizenship of the United States; that a person could be a citizen of the United States, only as he was such incidentally by reason of his being a citizen of some particular state of the Union; and consequently, that a person born and residing in the District of Columbia or other territory of the Union, although in the United States and subject to its jurisdiction, was not a citizen of the United States! And grotesque and absurd as this proposition now seems, it had been indirectly confirmed by a decision of the federal Supreme Court.1 Even to this day, there are those who believe, or affect to believe, that Article XIV. of our Constitution was merely intended to make citizens of African freedmen; that its provisions were partisan measures, incident to and consequent upon the old slavery question; and that the true interpretation of the Constitution is still along the lines of the Jeffersonian theories of a century ago! The truth is, however, that, although African slavery was the occasion, it was not the cause either of the civil war or the amended Article XIV. which followed. The real issue of that war was the integrity of the federal Union, the supremacy of the central government, as against the assumed right of a particular state to secede from the Union, or to nullify the authority of the nation over its citizens.

The provisions of Article XIV., therefore, reach, and were intended to reach, far beyond the incidents and consequences of the slavery question. They eradicate, as they were intended to eradicate, completely and forever, a pernicious political heresy which had vexed 1 In the celebrated Dred Scott case.