Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 2, 1872, Part I

No. 392.
Mr. Biddle to Mr. Fish,

Legation of the United States,
San Salvador, January 5, 1872. (Received February 10.)

No. 13.]

Sir: Referring to my dispatch No. 10, I have now the honor to transmit a printed copy of “the political constitution of the republic of Salvador, decreed by the constituent assembly the 16th day of October, 1871.” Its brief preamble is, “In the presence of God, the Supreme Legislator of the Universe, and in the name of the Salvadorian people, the national constituent congress decrees, sanctions, and proclaims the following constitution.”

Chapter first declares that the nation is the political association of all the people of Salvador; that it is sovereign, free, and independent, and can never become the patrimony of any family or person, and its succession is to be regulated by elections conformably to the law. All power emanates from the people.

The boundaries of Salvador are, to the east, the Bay of Fonseca; to the north, the republics of Guatemala and Honduras; to the west, the River Paz; and to the south, the Pacific Ocean.

The government is republican, popular, representative, and successive, and shall be administered by three distinct and independent powers, the legislative, executive, and judicial.

“The Catholic religion, Roman apostolic, is that of the state, and the government will protect it. It tolerates the public worship of the Christian-denominations when they preserve morality and the public peace.”

The second chapter prescribes that natural-born Salvadoreans are—

1st. All born within the territory of Salvador, excepting the children of foreigners not naturalized.

2d. The children of foreigners by a Salvadorean mother, or vice versa, born within the territory of Salvador.

3d. The children born to a Salvadorean father in a foreign country, where he is not naturalized.

Naturalized Salvadoreans are those who, in conformity to prior laws, have acquired this quality, and those who hereafter obtain it according to the following rules:

1st. The Spanish-American duly obtains letters of naturalization from the government after a year’s residence and good conduct in the republic.

2d. Other foreigners who solicit and obtain such letters, having proved two years of residence and their good conduct. 3d. Those naturalized by act of the legislature.

All Salvadoreans are citizens who have reached the age of twenty-one years, and are of good character, and who possess any of the following qualifications: To be father of a family or head of a house. To know how to read and write, or to have means of maintenance. Also, adults of eighteen years with literary degrees are citizens. The privileges of citizenship may be suspended—

1st. By imprisonment, or criminal process not admitting bail.

2d. Legally-declared fraudulent indebtedness, or under execution for indebtedness, to the public treasury.

3d. Notoriously vicious conduct or confirmed vagrancy.

4th. Mental aberration.

5th. Judicial interdiction.

Those shall forfeit the quality of citizens who—

1st. Are convicted of unbailable offenses.

2d. Residing in the republic, accept employment from any other nation without license from the legislature.

3d. Those naturalized abroad.

4th. Those selling their vote at popular elections.

Only those in the exercise of citizenship can obtain appointment or office under the republic.

The third chapter relates to foreigners. Whenever resident in Salvador, foreigners are subject to the ordinary imposts and obligations as the Salvadoreans, and, in case of injury to their persons or property, have the same right to prosecute in the tribunals. They may also, in like manner, urge claims against the nation in the proper tribunals, in the same manner as may Salvadoreans.

Foreigners cannot, under any pretext, take part in the popular elections, nor in the political questions of the country, and, contravening this, they shall be punished conformably to law. Foreigners may acquire real estate, but it is to remain subject to the same liabilities as if in the possession of Salvadoreans.

“The circumstance of the marriage of a Salvadorean woman with a foreigner does not deprive her of her status as a Salvadorean, nor is her property exempted from the imposts and dues to which is subjected that of other Salvadoreans.” How far this declaration, seemingly in derogation of the generally-received international principle that the nationality of the wife follows that of her husband, will be accepted by other nations, may probably be a question should the point ever arise.

Adult children of foreigners within a year of their qualification must elect as to their national status, otherwise they will be taken as naturalized.

Chapter fourth regulates the election districts.

By chapter fifth it is provided that the President must be a natural-born citizen of Salvador, thirty-three years of age, and not over sixty-five. He must be in the exercise of uninterrupted citizenship for five years prior to the election, to be of admitted honor and education, and to possess real property, unincumbered, of not less than $10,000 within the republic. The President can neither hypothecate nor convey this estate, daring his term of office, nor for two years thereafter.

Natives of the other Central American states may be elected to the presidency, provided that they have resided in Salvador for fifteen years previous to the election, and not to have lost citizenship for the preceding five years; to possess in Salvador unincumbered real estate to the value of 820,000, &c; to have intermarried with a Salvadorean; to have lent important services to the republic, and to be not less than thirty-three years of age, nor more than sixty-five.

Then follow provisions as to the qualifications for vice-president, senators, deputies, and their subordinates, justices of the court, &c, &c. No ecclesiastic can obtain office by popular election.

Justices cannot sit as associates if they are within the fourth degree of consanguinity, or within the second of affinity to one another.

No appointee of the executive can be elected senator or deputy until six months after his office has terminated. Nor can senators or deputies obtain appointments during the term for which they have been elected.

Chapter sixth relates to the legislature and its organization. This consists of a senate and house of deputies. It convenes yearly from the 1st to the 15th of January, without special letter of convocation, and its sessions cannot exceed forty days. A minority may take measures to compel the attendance of others.; a majority may deliberate, but when less than two-thirds have convened, two-thirds of those present are necessary for every legislative resolution. The chamber of deputies is renewed yearly; the senate, one-third yearly.

Chapter seventh relates to the powers and privileges peculiar to each chamber.

Chapter eighth regulates the attributes of the legislative power. These principally are to enact, interpret, reform, and repeal the secondary laws; to create jurisdictions, tribunals, and judges; to administer to the civil and criminal laws; to regulate the powers and jurisdiction of the different functionaries; to nominate in general assembly the justices of the supreme court; to establish taxes and contributions, and forced loans in cases of invasion, &c; to empower the executive to levy forced loans, &c; to settle and decree the annual estimates and appropriations for the expenses of government, arranging the management and the investments of the revenue, and the creation of a treasurer $ to receive from the executive yearly accounts of his official conduct, particularly with reference to finances, &c, and to establish funds for the extinction of the national debt; to create and organize an army and militia, conferring the grades from colonel up, inclusive; to supervise public instruction; to regulate weights and measures; to promote the means of communication; to decree the arms and standard of the republic, and to settle the alloy, weight, and coinage of the money; to appropriately recognize services to the country by rewards, &c.; to assign, augment, or diminish salaries to functionaries, and to create and annul employments; to regulate patent rights; to declare war and conclude peace; to grant amnesties and pardons, and to commute sentences, in the two last cases having a regard to the favorable representation of the supreme tribunal; to declare and proclaim in general assembly the election of President and vice-president of the republic, and to vote thereon when there is no popular election; to administer in general assembly the oath of office to the President, vice president of the republic, and the justices of the supreme court; to receive the resignations of those functionaries, of senators, and of officers in the army, from colonels up, inclusive; to resolve in general assembly doubts which may arise upon, or charges concerning the incapacity of, President, vice-president, and other employes elected by the assembly; to grant letters of naturalization. Also it can concede letters of naturalization to great men for services rendered to the republic or to humanity; to declare the state of siege in the cases and for the causes established by law; to rehabilitate those who have lost the rights of citizenship; to pass notes of censure upon the ministry; to grant or to deny permission to Salvadoreans to accept foreign employment, &c; to ratify, modify, or disapprove the treaties and negotiations which the executive celebrates with foreign powers, and the concordats adjusted with the supreme pontiff.

The legislative power cannot augment the compensation of the President, deputies, and senators during the then term of office. When the chambers are convoked to extra sessions by the executive, they can only consider the questions assigned in the decree of convocation.

The senate can continue its sessions in order to dispose of the special subjects which the law commits to it. The legislative powers cannot be delegated, &c. Heavy penalties imposed therefor.

Chapter ninth prescribes the executive power. It is to be exercised by a citizen who received the title of President of the Republic, selected directly by the people, but when there is not a clear majority of votes, the election is to be made in general assembly of the legislature from the three citizens leading the pluralities of votes. The same for vice-president. The duration of the presidential term is two years, and the proprietary president cannot be re-elected, save after the expiration of an equal period, &c. The president shall be the commander-in-chief of the army and navy. The decrees, resolutions, and proclamations of the president must be authorized by the ministers of state in their respective departments. He shall have four ministers: of foreign relations; of the interior; of war and the treasury; and of public instruction; among whom the president may distribute other duties as convenient. Their qualifications are regulated, and the “character of minister is declared incompatible with that of any other position.”

Chapter tenth treats of the attributes of the executive. These are, to maintain the sovereignty and independence of the republic, and the integrity of its territory. To conserve the peace and order. To publish and execute the laws, &c, using the veto as established. To remove ministers and other high officials, &c. To appoint and remove diplomatic agents, consuls, &c, and to receive those accredited near the government, and to superintend the foreign relations. To call extra sessions of the chambers, &c. Within eight days after the opening of the regular sessions of the general assembly, a detailed message is to be presented, and a persistent’ neglect thereof may cause the removal of the ministers, and of the president himself. To direct war, being to dispose of the public incomes, and to celebrate treaties of peace, and any other negotiation whatsoever, submitting them to the ratification of the legislature. To direct the armed force, to be authorized to command in person the army, and in such case to intrust the executive authority to the proper source. To raise the greatest force necessary to repel invasions or quell insurrections, and to immediately convoke the assembly so that it can dispose what is convenient for the occasion. To commute penalties during the recess of the legislature, &c. To afford to the chambers such information as he may deem compatible with the public interests, &c, and all others when called for by the deputies and senate. To issue decrees and proclamations to facilitate the execution of the laws, &c. To be watchful over the legal value of money and to compute that of foreign countries, the circulation of which is permitted; all the arrangements of police and of order, the charitable institutions, those of knowledge, letters, and arts, the prisons and garrisons, are all under his direction and supreme inspection, as well as the census and statistics. To permit or refuse the transit of troops of other countries in the republic during the recess of the legislature. To open ports and establish custom-houses, and to nationalize vessels. To promote agriculture, manufactures, and co commerce. To exercise the right of patronage.

Chapter eleven regulates the judiciary, creating courts of first, second, and third instance, and a supreme tribunal called “corte plena,” composed of the justices of these several courts, which possesses not only strictly appellate powers, but also supervisory jurisdiction and power to appoint judges for the lower courts and displace them. To advise the legislature upon legal points, and to watch the responsibilities incurred by the lower judges, departmental governors, &c. They are also to proclaim the guarantee of habeas corpus against whatsoever authority.

The twelfth chapter regulates the formation, sanction, and publication of the law.

The thirteenth chapter refers to the inferior judges, magistrates, &c.

The fourteenth chapter treats of the governors of the minor districts, and the fifteenth of the affairs of the different townships.

The sixteenth chapter is of the public force, which is composed of the national militia, the army, and navy. Every Salvadorean, save those legally excepted, is obliged to take up arms to defend the independence of the republic and the integrity of its territory. The militia is not to exceed one per cent, of the population. The armed force is declared to be essentially obedient; it cannot deliberate, and its individuals cannot be elected deputies nor senators.

Chapter seventeenth establishes the public treasury, which shall be formed—

1st. Of all the personal and real property of the state and active credit.

2d. All the imposts and contributions which the Salvadoreans pay, or hereafter shall pay, through their persons, industry, and commerce, or estates.

3d. All the duties which commerce produces.

No class of contributions or imposts can be exacted but those settled previously by law, nor can any sum be extracted from the treasury save by previous law. A yearly account of the condition of the treasury shall be published, and the public treasurer shall furnish a monthly statement of the receipts and disposal of all the funds.

Neither the government nor any other authority can conclude contracts which affect the national funds except through the medium of public competition, except in those cases provided by the corresponding organic law. The nation does not hold itself responsible for the unlawful acts of the executive in these respects, &c, &c.

The eighteenth chapter designates the responsibility of public functionaries to the government and individuals for malfeasance in office.

The nineteenth chapter proclaims the rights and duties guaranteed by the constitution. Salvador recognizes rights and duties prior and paramount to the positive laws. It holds as principles liberty, fraternity, equality; and, as foundations, the family, labor, property, and public order.

All the dwellers in Salvador have incontestable right to conserve and defend their lives and liberties, to acquire and dispose of their property, and to pursue their happiness without molestation. Every individual is free in the republic. There shall not be a slave within the territory, nor a citizen who traffics in slaves. The republic is a sacred asylum for every stranger who may wish to reside within its limits, so long as he submits to its laws and obeys the constituted authorities, notwithstanding which, the provisions of extradition treaties will be observed. Every inhabitant free from responsibility may leave and return to the republic without passport whenever he pleases. No acts of usurpation of the supreme power have any legal effect whatsoever. Freedom of speech and of the press is declared. Public meetings, to discuss freely politics, allowed, when good order is preserved. The right of petition is declared. The law does not interfere with private actions and beliefs which do not offend the public order nor injure others. Confiscation of property is abolished, nor can any one be deprived of his life, liberty, or property without due trial and judgment in a court of law. Inquisitions, searches, and molestation of one’s person, house, or papers, forbidden except as allowed by law. All are equal before the law. Punishment should be proportioned to the nature of the offense. Capital punishment is abolished for political accusations, and only can be inflicted for the crimes of murder, assault, and arson, if death results.

Only tribunals previously established by law can have cognizance of civil and criminal cases. Special commissions and courts are abolished.

The writ of habeas corpus (el auto de exhibition de su persona) is established even in opposition to any act of the president.

Epistolary correspondence is inviolable, except in cases where public safety creates an exception. Bail is to be received, except where it is specially prohibited. No one in criminal cases is obliged to bear testimony against his parents, or children, or wife, or near collateral relatives. And in all criminal process to summon witnesses to confront the adverse witness, and to have counsel or to be heard in his own defense.

The police is confided exclusively to the civil power.

Arbitration, save in excepted cases, is always allowed to litigants, at all stages of a cause.

All property is inviolable, but the state may appropriate property for public uses, duly proven, and by means of a just and settled indemnification. All property is transmissible by legal formulas, all species of entail being prohibited. All criminal trials are to be within the term prescribed by law. Arrests must be through proper authority. The higher and secondary branches of learning are optional, but are a care for the authorities, whose vigilance should extend to all the institutions of education without exception. Primary instruction is uniform, gratuitous, and obligatory. Every individual may found schools and colleges, imparting knowledge and morality. The alumni of these institutions, upon examination, will take the corresponding literary grades in the university.

No power, legislative or executive, nor any tribunal or authority, can restrict, change, or infringe any of the above guarantees; and such infringer becomes a usurper, and as such individually responsible for the injury inflicted, and shall be prosecuted as prescribed in this constitution.

Chapter twentieth provides for reforms in the constitution, and other dispositions. It proclaims that: Salvador is prepared to concur with all or any of the States of Central America for the organization of a national government whenever circumstances permit, and it suits their interests to form a part of the great Latin-American confederation.”

Thus Salvador has framed a republican constitution, modeled in its leading features upon that of the United States, declaring the fundamental privileges of representative government, personal liberty, and security to property. We must trust with anxious hope that it will prove not a mere rope of sand, but a cable potent to sustain the ship of state in the political hurricanes which so often have wrecked these nationalities.

I have, &c.,

THOMAS BIDDLE.