Mr. Seward to Mr. Burton
Sir: Your despatch No. 248, of the 29th of June last, accompanied by a copy of an act of the Colombian congress defining the condition of a foreigner, his rights and duties, has been received.
The second section of the act seems to be the one to which exception might most properly be taken. This declares that foreigners domiciled in Colombia, although not naturalized, so that they are not merely transient, according to international law and usages, shall enjoy the same civil rights and guarantees, and be subject to the same obligations as to person and property, as Colombians.
The general principle is supposed to be clear, that a foreigner who of his own accord settles in a country, accepts the conditions and liabilities in peace and in war of a native of that country.
No government can be expected to relinquish its rights of jurisdiction over all such persons within its territory, unless that relinquishment shall have been made by special compact, such as the treaties between Christian States and those professing the Mohammedan and other religions.
If, however, any question might arise under the second section of the act, this is answered by the third, which says that foreigners thus domiciled shall nevertheless enjoy the exemptions to which they may be entitled by public treaties, and the same which Colombians under the same circumstances may enjoy, pursuant to the laws and customs of the country to which the foreigner may belong.
The only treaty between us and Colombia, bearing upon this subject, is that of 1846. According to the 13th article of that instrument, the citizens of the two countries, whether transient or dwelling, are to have the same protection to their persons and property as the natives of the country where they may be. A pledge to confer the same privileges in those respects upon citizens of the United States in Colombia does not imply that they are exempted from any liabilities to which Colombians may be subject.
Supposing, however, (which does not appear to be the fact,) that the Colombian government has a right to draw a distinction between our citizens who are commorant and those who are only transiently in that country, the act proceeds to define the circumstances which are to afford a presumption of the purpose of a foreigner to become domiciled. One of these is marriage with a native and two years’ continuous residence. The time and circumstances which constitute the legal domicile of a foreigner have usually been a subject of judicial decision, and as such it varies according to the facts of the case. The right of a government to define such domicile by municipal law cannot be questioned. Such a right can only be relinquished or modified by treaty. The definition by statute may seem arbitrary, but if a foreigner goes to or stays in a country where it prevails he cannot reasonably complain, especially if it should be impartially executed. Of course in this respect we cannot submit to any discrimination against citizens of the United States.
The possibility to which you refer that the powers claimed by the act may be abused is not conceived to afford a sufficient reason to deny them. When such abuses occur proper measures will be taken towards correcting them. In order that the Colombian statute referred to may be known in this country, I have caused a translation of it to be made.
I am, sir, your obedient servant,
Allan A. Burton, Esq., &c., & c., & c.