The Diplomatic Protection of Americans in Mexico 9780231893091

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MEXICO IN

INTERNATIONAL FINANCE AND DIPLOMACY Prepared under the auspices of COLUMBIA UNIVERSITY COUNCIL FOR RESEARCH IN THE SOCIAL SCIENCES

VOLUME II

THE DIPLOMATIC PROTECTION OF AMERICANS IN MEXICO BY

FREDERICK SHERWOOD DUNN

THE DIPLOMATIC PROTECTION OF AMERICANS IN MEXICO BY FREDERICK

SHERWOOD

DUNN

ASSOCIATE MEMBER, THE WALTER HINES PAGE SCHOOL OF INTERNATIONAL RELATIONS CRESWELL LECTURER ON INTERNATIONAL LAW THE JOHNS HOPKINS UNIVERSITY

NEW YORK COLUMBIA UNIVERSITY 1933

PRESS

Coi^fRIGHT

Ì933

COLUMBIA UNIVERSITY PRESS Published 1933

PRINTED Dt THE UNITED STATES OF AMERICA BY THE PLDCPTON PRESS ' NORWOOD ' MASS.

PREFACE THIS volume presents a fresh approach to a subject on which many volumes have been written. There are scholarly treatises on the legal, economic, and historical aspects of the problem of diplomatic protection of the lives and property of citizens abroad. T h e present contribution, however, has a certain novelty in both content and purpose. The factual data contained in the book have been drawn largely from the vast store of materials preserved in the records of relations between the United States and Mexico during the course of a century and more. Most of these materials have not been printed, but are to be found in the manuscript archives of the Department of State at Washington. In utilizing these sources, Mr. Dunn has not sought to prove the existence of hard and fast legal rules for the solution of controversies concerning diplomatic protection, but has examined the diplomatic correspondence and the decisions of claims commissions with a view to ascertaining the role which the subject of diplomatic protection has played in the relations between the two nations. The relations between Mexico and the United States are by no means unique. T h e y exhibit, of course, significant peculiarities; but in certain other respects they are typical of the relations between the United States and her other neighbors to the south. In general, they provide an instructive illustration of the functioning of the whole system of diplomatic protection. The materials reported in this volume show that rules of international law may be invoked as weapons of both defense and offense. It is interesting to note how frequently a clash of economic interest or territorial ambition is cloaked in a veil of legal dialectic. Consistency is a jewel which is not always firmly set in the diplomatic crown. Legal arguments abandoned today are advanced again tomorrow by a new set of officials. Decisions of international tribunals dispose of the pecuniary claims of A, B, and C V

vi

PREFACE

but contribute little to the permanent settlement of the issues from which those claims arose. A distinctive feature of this book is its approach to the subject of international law in the light of that school of modern jurisprudential thought which is characterized by a healthy iconoclasm and skepticism. Single diplomatic statements or arbitral awards may suggest the existence of an orderly, purely logical system. Viewed collectively, however, over the course of a century, they seem to indicate that one cannot divorce the reign of law from the reign of men. The most perfect logician might well be the most inept Secretary of State. These conclusions may be drawn without imputing to government officials either insincerity or base motives; although on the other hand there is no attempt to conceal the truth revealed, for example, in the frank despatches of some of the early ministers of the United States in Mexico City. The book is not an attempt to prove the dominance of imperialism or of legalism. The facts presented dispassionately are allowed to speak for themselves. The present volume is one of a series of studies on " Mexico in International Finance and Diplomacy," representing the product of researches conducted under the auspices of the Columbia University Council for Research in the Social Sciences and made possible through the grant of funds to that body by the Laura Spelman Rockefeller Memorial. The project was planned and directed by a committee of the Columbia faculty, namely, Professors James W. Angell, Joseph P. Chamberlain, Edward M . Earle, Carlton J . H. Hayes, Philip C. Jessup (secretary), William R . Shepherd, and Parker Thomas Moon (chairman). Work was begun in 192 5. The investigation of legal and diplomatic aspects of Mexican foreign loans was confided to M r . Edgar Turlington, whose experience in the State Department in matters of pecuniary claims proved to be peculiarly useful in affording a perspective for the inquiry. The analysis of the diplomatic policies and legal questions relative to the protection of American lives and property in Mexico was entrusted to Mr. Frederick S. Dunn who is similarly qualified by his previous experience as Assistant Solicitor of the Department of State and member of the American

vii

PREFACE

Agencies in the American and British Claims Arbitration and the United States-Mexican Claims Commissions. Mr. Herbert Feis has assumed responsibility for the third volume, which is to deal with the foreign financing of railroads in Mexico. Grateful acknowledgment is made to Miss Marjorie Whiteman and to Mr. Lionel Summers for their assistance in the examination of archives in the Department of State and to the officials of the Department whose courteous assistance greatly facilitated the research. The committee owes gratitude to the Laura Spelman Rockefeller Memorial, which made this enterprise possible; to the Columbia Council for Research in the Social Sciences, which sponsored it; to Mr. Dunn, who has so competently carried the project to fruition; and to Mr. Frederick Coykendall and the other Trustees of Columbia University, thanks to whose kindness this series is published by the Columbia University Press. PARKER THOMAS M O O N

CONTENTS PREFACE BY PARKER THOMAS MOON

V

I . INTRODUCTION I I . DIPLOMATIC

I

PROTECTION

I I I . T H E ISTHMIAN

AND TERRITORIAL

AMBITIONS

R O U T E AND F U R T H E R TERRITORIAL

AM-

BITIONS

55

I V . PRELUDE TO T H E D I A Z E R A

91

V . FORCED L O A N S AND SPECIAL T A X E S VI.

117

REVOLUTIONARY DAMAGES

152

V I I . LEGISLATIVE L I M I T A T I O N S ON D I P L O M A T I C VIII.

PROTECTION

D E N I A L OF J U S T I C E AND E X H A U S T I O N OF L O C A L

X. XI.

199

P O L I C E PROTECTION SOCIAL R E V O L U T I O N AND N A T I O N A L I S M

274 .

.

.

.

OIL

X I I I . N A T I O N A L I S M AND THE R E N U N C I A T I O N

XV. INDEX

THE

306 332

X I I . AGRARIAN R E F O R M

XIV.

166

REME-

DIES IX.

IO

C L A I M S COMMISSIONS OF 1 9 2 3

SOME C O N C L U S I O N S

367 OF PROTECTION .

.

.

.

382 401 422 431

CHAPTER I INTRODUCTION

IN the frequently troubled course of diplomatic relations between the United States and Mexico, no subject has been a more persistent source of controversy than that of the protection of American lives and property in Mexican territory. For a hundred years this subject has been almost continuously in the foreground of diplomatic discussions and has occupied more space in the official correspondence between Washington and Mexico City than any other. It has been intimately associated with all the major crises in the relations of the two nations and has led to sharp demands and threats of forceful action on a number of occasions. It played an important role in the events leading up to the War of 1846, and at other times has brought the two countries perilously close to hostilities. It remains today perhaps the most serious threat to the continuance of harmonious relations between them. The practice of interposition through diplomatic channels on behalf of citizens and their property interests abroad is, of course, not peculiar to the government of the United States nor is it confined to Americans in Latin-American countries. It is in fact a common institution of international relations, possessing a welldeveloped jurisprudence and accounting for a large part of the routine work of all foreign offices. It happens, however, that this practice has, for various reasons, loomed exceedingly large in the relations of the United States with its neighbor immediately to the south. The reasons for this are partly political and partly economic. Mexico began its existence as an independent state with an advanced form of representative government, which proved in many directions ill-adapted to the capacities and interests of its native Indian population. There resulted long periods of political dis1

2

INTRODUCTION

order, revolutions, inefficiency and corruption in governmental agencies, and constant financial difficulties, all of which made it extremely difficult, if not impossible, to provide the degree of security for life and property normally found in civilized states. At the same time, Mexico was becoming of constantly increasing importance in the economic and social life of other countries, and especially of the United States. Its territory was rich in precious metals and other natural resources needed in the industrial development of the world at large. Its equitable climate and vast undeveloped lands proved strong attractions to settlers from the north. Lacking commercial and industrial development of its own, it offered important potential markets for the surplus products and capital of more highly industrialized countries. In addition, the extensive common boundary between the United States and Mexico was prolific in the production of difficulties and clashes of interest. Territorial expansion of the United States to the west and south had been accomplished largely at the expense of Mexico, and the pervasive doctrine of " manifest destiny " seemed to visualize eventual absorption of the whole of Mexico by the United States. The opening up of the Far West created insistent demands for easy means of transit and communication from the East, and the most available routes happened to lie in Mexican territory. The combination of these economic and political factors has been extremely fertile in the creation of situations giving rise to the exercise of diplomatic protection by the United States over its citizens and their property interests in Mexico. From a technical standpoint, the subject of diplomatic protection of citizens abroad embraces generally all cases of official representation by one government on behalf of its citizens or their property interests within the jurisdiction of another, either for the purpose of obtaining redress for injuries inflicted upon them in violation of some alleged legal obligation, or to prevent such injuries from occurring. The practice of watching over the welfare of citizens abroad is as old as the practice of diplomacy itself. Grotius asserted that war might rightfully be undertaken on behalf of a subject unjustly injured in a foreign country, citing Cicero

INTRODUCTION

3

and the Holy Scriptures in support of his view. 1 At a later date Vattel supplied a plausible theoretical basis for the practice in his thesis that an injury to a subject was an injury to his state. It was not until the nineteenth century, however, that the practice of diplomatic protection of citizens abroad became of major importance in the routine work of foreign offices. T h e tremendous growth of commerce and industry in that century and the vast improvement in the means of transportation and communication enormously stimulated international trade and intercourse between nations and increased correspondingly the number of situations in which questions of protection might arise. There gradually grew up a large body of custom governing the field of protection, and this body of custom became recognized as a part of the corpus of international law. T h e practice is now well established of regarding questions of diplomatic protection as legal matters, i.e., as claims of legal right, governed by a recognized body of legal rules and principles. In the case of the United States, for example, such questions are invariably regarded as within the province of the law officers of the Department of State. T h e custom of referring cases not settled by diplomatic negotiation to arbitration has likewise aided materially in the development of diplomatic protection as a legal institution, and there now exists a larger body of judicial precedents in this field than in any other branch of international law. So far 1

Grotius, De jure belli ac pacts, B o o k I I , C h a p . X X V , i.

ternational L a w

T h e Classics of I n -

(Carnegie E n d o w m e n t f o r I n t e r n a t i o n a l Peace, 1 9 2 5 ) , p . 578:

" 1. I n the earliest part of this w o r k , w h e n w e dealt w i t h those w h o w a g e w a r , w e asserted and s h o w e d that b y the l a w of nature each individual w a s justified in enforcing not merely his o w n right b u t also t h a t of another.

T h e causes, therefore,

w h i c h are just in relation to the person w h o s e interest is at stake are just also in relation to those w h o g i v e assistance to others. " 2. N o w

the first and particularly necessary concern is f o r subjects, either

those w h o are subject to a u t h o r i t y in a f a m i l y , or those w h o are s u b j e c t to a political a u t h o r i t y . the same connexion.

T h e y are, in f a c t , as it w e r e a part of the ruler, as w e said in F o r this reason, under the leadership of Joshua, the Jewish

people took arms on behalf of the Gibeonites, w h o h a d submitted to t h e m .

' Our

ancestors,' said Cicero, addressing the R o m a n s , ' often w a g e d w a r s because

their

traders and sailors had been w r o n g f u l l y treated.'

I n another speech he said: ' H o w

m a n y w a r s did o u r ancestors . . . w a g e , because it w a s said t h a t R o m a n citizens h a d been w r o n g e d , sailors detained, and traders r o b b e d ! ' "

4

INTRODUCTION

has this development gone that the subject of international responsibility for injuries to foreigners was deemed sufficiently advanced to be included among the three subjects submitted to the First Conference for the Progressive Codification of International Law, held at The Hague in 1930 under the auspices of the League of Nations. Juridical theory recognizes the existence of this body of customary law of diplomatic protection as a limitation upon territorial sovereignty. According to this theory, the freedom of every sovereign state to exercise jurisdiction over foreigners within its borders as well as over nationals is unrestricted so long as the state complies with an internationally recognized minimum standard of justice in its treatment of individuals. All civilized governments, it is said, recognize in their constitutional laws that the individual is entitled to certain fundamental rights of security in his person and property, and it is these universally recognized rights that make up the content of the minimum standard of justice. If a nation falls below this standard in its treatment of foreigners, it becomes internationally responsible to make redress. In the absence of a superior authority to enforce this standard, international law recognizes the right of each state to interpose diplomatically on behalf of its citizens abroad, and to take such other measures as may be necessary to safeguard their fundamental rights, even to the extent of the use of force. Juridical theory further asserts that the obligation to maintain this minimum standard in the treatment of foreigners is a corollary of the right of territorial independence, and is assumed by each state when it seeks recognition as a sovereign member of the family of nations. Equality of treatment between alien and national is regarded as a complete discharge of this obligation only when such treatment accords with the minimum international standard. When it falls below this standard, a state cannot escape international responsibility on the plea that it treats its own nationals in the same manner. As between the individual and his own government, it is said that the duty of protection springs out of the relationship of citizenship, which is a personal one and goes with the individual wherever he may go. The right to protect,

INTRODUCTION

5

however, being a right granted by international law, pertains to the state only and not to the individual. 2 So much for the theory on which the practice of diplomatic protection is sought to be justified by statesmen and text-writers. If one examines the kinds of cases which governments are in the habit of espousing, they will be found to involve, as a rule, some failure to fulfill a customary governmental function in accordance with normal expectations or in a manner deemed necessary to the continuance of international trade and intercourse. Thus a large number arise out of alleged failure to provide the usual amount of police protection for life and property (lack of diligence in preventing crimes against aliens or in apprehending and punishing criminals, false arrest or imprisonment of aliens, etc.). Another large class arises out of failure to provide an adequate judicial system (denial of justice or delay in judicial proceedings in the local courts, etc.). Others arise out of the failure of executive or administrative officials to perform their functions in an expected manner (customs cases, forfeitures of concessions, contract and bond cases, etc.). Still others relate to the failure of the lawmaking branch of the government to provide an adequate system of laws for safeguarding personal and property rights in the manner normally expected of civilized states (confiscatory legislation, burdensome fiscal measures, etc.). In all of these cases there are presumed to exist certain generally accepted standards of conduct, ascertainable by reference to past practice and applicable to new cases by logical processes. In other words, for every case arising within the scope of the institution of diplomatic protection, international law dictates what is lawful and what is not, and does this presumably without reference to practical consequences or the material interests of the parties to the case. This being the traditional conception of the institution of diplomatic protection, it is not difficult to understand why the officials of the government of the United States should resent the charge frequently leveled at them that, in resorting to the practice, they - T i e standard works on the subject are Professor Edwin M . Borchard's Diplomatic Protection of Citizens Abroad (New York, 1916), and Professor Clyde Eagleon's Responsibility of States in International Law (New Y o r k , 1928).

6

INTRODUCTION

are guilty of some form of imperialism or of an improper interference in the affairs of weaker nations. In their view, the extension of diplomatic protection to American citizens who have sustained mistreatment at the hands of a foreign government is merely the performance of a proper and unavoidable duty which is an essential part of their official functions. The maintenance of international standards of conduct in the treatment of foreigners is regarded as not only necessary in the interest of justice but also vital for the development of international trade and intercourse. On the other hand, the nations south of the Rio Grande, while not denying the obligation to deal justly with foreigners, have come to look upon the institution of diplomatic protection as an unwarranted and oppressive burden. The constant stream of complaints against the actions of governmental agencies, the frequent demands for large indemnities for alleged mistreatment of foreigners, the veiled threats of forceful intervention to establish order and security, the coupling of protection with moves toward the acquisition of territory or commercial advantages, all these things have created among Latin-American nations a strong distaste for the institution and have led them to resort to every possible means of restricting its use. In the century of relations between Washington and Mexico City, the setting in which the institution of diplomatic protection has operated has undergone some extensive changes. When it opened, the industrial revolution was still around the corner. The United States and Mexico were primarily agricultural communities, with extensive areas of undeveloped territory and large indigenous Indian populations. Economic and social life in each country was localized and the means of communication between them were crude and difficult. In extent of territory, in population, and in military power, the two countries were not far apart. 3 3

In fact, during the first half of the century the question frequently was raised as to which of the t w o nations w a s destined to become the leading power on the continent. It w a s widely believed in Mexico that the early policy of the United States was motivated chiefly by a jealousy of the growing importance of its southern neighbor and a fear that the latter would soon outstrip it in trade and industrial development. See, for example, the resolution adopted by the legislature of the State of Mexico demanding Poinsett's recall, enclosure, Poinsett to

INTRODUCTION

7

T h e intervening years have witnessed drastic changes in the relative positions of the two countries and in the nature of their intercourse. T h e question of material preeminence has been decisively settled. The United States has become industrialized, drawing heavily upon the resources of the whole world for the essentials of its economic life, while its southern neighbor has largely retained its character as an agricultural community, making relatively little use in its internal economy of the natural resources with which its territory is so richly endowed. One nation has disposed of its Indian problem by conquest and segregation, while in the other, Indians and mestizos make up today over 90 per cent of the population. 4 T h e United States has more than doubled its territory, largely at the expense of Mexico, and its population is now nearly nine times as great. Finally, the institutions of republican government with which both countries started have had radically different histories. In the one, their effectiveness in maintaining a large measure of security of life and property has induced the inhabitants of that country to look upon conditions favorable to private enterprise as the normal order of events. In the other, the continued failure of those institutions to bring about political stability and order has led in the past to a widespread lack of confidence in the capacity of the Mexican people to establish effective organs of representative government. It will be observed in the following pages that the changing character of the social and economic relations between the two countries has had an important effect upon the manner of dealing with the subject of diplomatic protection. During the early decades of their relations, the dominant subjects of interest for Americans in relation to Mexico were the acquisition of territory and the development of American trade. Opposition in Mexico to American ambitions along these lines coincided with frequent and bitter controversies over the subject of diplomatic protection. As C l a y , August 7, 1829, United States D e p a r t m e n t of State, M a n u s c r i p t Despatches, Mexico (hereinafter cited as M S . Desp. M e x . ) , V o l . 4. 4

See Ernest Gruening, Mexico

and its Heritage

(New York,

1928), p. 69.

Gruening expresses the belief that out of the present estimated population of millions, the pure w h i t e s d o not exceed half a million.

fifteen

INTRODUCTION

8

a matter of fact, there has been at times a striking parallel between the upward and downward curve of American territorial and economic ambitions toward Mexico on the one hand, and the concern with which American officials seemed to regard reported injuries to Americans in Mexico on the other. The same events which, in times of mounting ambitions, took on an aspect of extreme gravity, were at other times treated as minor misfortunes that might happen in any country. During the Diaz régime, American interest in Mexico became centered in the exploitation of Mexican natural resources and the development of her industries. Diaz was sympathetic with that development and succeeded in establishing local conditions favorable to its growth. While these conditions prevailed, the exercise of diplomatic protection ceased to be a matter of controversy between the two governments. However, the social and economic system fostered by Diaz proved to be ill-adapted to the needs of the native population, and this fact led eventually to the revolution of 1 9 1 0 . The following years were marked by the efforts of various factions in Mexico to work out a political and economic order more nearly suited to the actual or assumed needs of the native Mexican. In this struggle, little attention was paid to the maintenance of conditions favorable to international trade and intercourse. As a result, diplomatic protection again became a subject of bitter controversy between the two governments. The following account of the diplomatic protection of American lives and property in Mexico is based on an examination of all of the diplomatic correspondence between the two governments that has been made available for inspection, as well as the decisions, opinions and documentary records of the claims commissions established by the two governments. 5 While the general arrangement of the material is chronological, a topical treatment has been followed wherever the general course of diplomatic discussions has made that possible. During the first half century of relations between the two countries, the law governing diplomatic 5

The author gratefully acknowledges his indebtedness to the officers and employees of the Archives Division of the Department of State f o r the extremely helpful assistance they have given him in this investigation.

INTRODUCTION

9

protection was still in a crude state of development, and hence this period is less amenable to topical treatment than the later period. In the selection and arrangement of material, no effort has been made to show that" the law " on a particular subject is this or that, or to prove that the officials of the two governments have or have not acted " legally " in disposing of questions of diplomatic protection. The primary purpose has been to present a picture of how the institution of diplomatic protection has operated in the relations of the two countries. Some selection of cases has of course been necessary, since a consideration of all of the recorded disputes on the subject would fill many volumes. This selection has been made with a view to indicating the general course of action and the attitudes of the officials of the two governments on controversial issues, and without any effort to establish a unity of action or policy that has not in fact existed. For the layman at least, the detailed recording of successive arguments in protracted legal debates must make at times rather tedious reading. Such statements are, however, about the only available evidence we have of official policy, and are of importance precisely to the extent that governmental action is affected or explained by them. For the lawyer and jurist, they are of importance primarily as evidence of past practice or of existing rules of law. For the student of political institutions, their significance lies in the picture which they give of the operation of the institution of international law in daily practice. The reader approaching the subject from this latter angle would do well to keep in mind the traditional notion of law as a body of fixed rules and principles of conduct capable of being applied to specific situations by logical processes, and to observe how this notion compares with what actually takes place in the resolving of conflicts of interest.

C H A P T E R II DIPLOMATIC PROTECTION TERRITORIAL

AND

AMBITIONS

WHEN the United States sent its first diplomatic representative (Joel Poinsett) to Mexico in 1825, the practice of diplomatic protection of citizens abroad was still in a very early stage of development. People had not yet begun to move about freely across national boundaries and to acquire extensive property interests in foreign countries. International trade and intercourse were confined largely to water-borne commerce. There did not exist any readily available body of established precedents to which appeal might be made in cases of reported mistreatment of foreigners. In short, the conditions that were to bring about the development of a complex body of law governing diplomatic protection as a separate branch of international jurisprudence had not yet arisen. T h e relations between the two nations started off amicably enough. Shortly after his arrival in Mexico, Poinsett took occasion to acknowledge to the Mexican government " the uniform kindness and hospitality " manifested by the people of Mexico toward American citizens, and the protection which the Mexican government had always extended to them. T o be sure, a few causes of complaint had arisen, 1 but they were only such as might occur in any country in spite of the utmost vigilance of the authorities. All that could be expected in such cases, said Poinsett, was that the government should, upon complaint being made, seek out and deliver the offenders to the punishment of the local laws. He had no doubt of the disposition of the Mexican government to perform this duty, and he believed such occurrences to be extremely rare in Mexico. 2 1

See C l a y to Poinsett, N o . i , M a r c h 26, 1825, United States D e p a r t m e n t of

State, M a n u s c r i p t

Instructions,

Mexico

(hereinafter cited

as M S .

Inst.

Mex.),

V o l . 10. 2

Poinsett to A l a m â n , July 27, 1825, enclosure w i t h Poinsett t o C l a y , N o . 1 1 ,

A u g u s t 3, 1825.

M S . D e s p . Mex., V o l . 1. 10

PROTECTION AND AMBITIONS

il

But this confidence in the security of American interests in Mexico did not last long, for it soon became evident that the favorable conditions of trade which American merchants had visualized as the logical outcome of Mexican independence were not to be realized in anything like the degree expected. Under Spanish control, the rich Mexican territory had been virtually closed to foreign commerce, and not a little of the enthusiastic support given to the cause of Mexican independence in the United States had been inspired, consciously or unconsciously, by the pleasing prospect of the termination of that monopoly. Owing to the proximity of the two countries and their common bond of republican institutions, it had been confidently assumed that the lion's share of the profitable trade with Mexico would fall to the merchants of the United States. This expectation was not, however, borne out by the course of events. In theory the officials of the new. republic were not opposed to the idea of open and unrestricted trade with foreign countries, but in practice they had been too long accustomed to seeing foreign commerce used as the special prerogative of the sovereign. T h e y were fully aware of its great bargaining value in political dealings with other countries and of its immense fertility as a source of government revenues. It was perhaps not surprising, therefore, that they should have begun almost immediately to impose various burdens on that trade in the interest of the federal government. These burdens mainly took the form of high tariff rates and expensive and complicated customs regulations. 3 3

T h e d i f f i c u l t i e s a r i s i n g o u t of t h e s e r e g u l a t i o n s a r e f u l l y d i s c u s s e d b y

n i n g in C h a p . V I I I of his Early Mexico

(Baltimore, 1918).

Diplomatic

Relations

between

the United.

Man-

States

and

T h e m o s t i r r i t a t i n g of t h e s e r e g u l a t i o n s w a s t h e r e q u i r e -

m e n t t h a t e v e r y i n v o i c e of g o o d s s h i p p e d f r o m t h e U n i t e d S t a t e s t o M e x i c o

should

h a v e a separate consular certificate f r o m a M e x i c a n consul in the U n i t e d

States.

A s the f e e f o r e a c h c e r t i f i c a t e w a s t w o

carried

l a r g e n u m b e r s of

dollars, a n d as vessels h a b i t u a l l y

s e p a r a t e s h i p m e n t s , t h e f u l f i l l i n g of

h e a v y b u r d e n on A m e r i c a n t r a d e w i t h M e x i c o . for noncompliance C l a y , w h o asserted

placed

T h e s e i z u r e of a n A m e r i c a n

w i t h this regulation brought that

this requirement

a strong

respect for the authorities

of

protest f r o m

the M e x i c a n

a l o n e f o r b a d e his c h a r a c t e r i z i n g the s e i z u r e b y t h e e p i t h e t it d e s e r v e d .

Secretary

government H e instructed

P o i n s e t t t o a s k f o r a p r o m p t r e s t o r a t i o n of t h e v e s s e l a n d c a r g o a n d i n d e m n i t y its seizure a n d d e t e n t i o n .

(Clay

to

Poinsett,

March

20,

1826,

a

vessel

MS.

Inst.

for

Mex.,

12

PROTECTION AND AMBITIONS

When it was learned in the United States that not only was American commerce with Mexico to be burdened with irritating customs regulations but that these were actually to be enforced, there was great consternation among American shippers. Poinsett insisted that the regulations were contrary to international law, and he demanded indemnities for all losses to Americans arising from their enforcement. There were certain rules, he said, which governed nations in their commercial intercourse with each other and to which Mexico had become bound by the mere act of declaring herself independent. One of these rules required that " all regulations which are intended to be obligatory upon the inhabitants of a foreign country shall be published in a certain form and addressed to them." Poinsett cited no authority in support of this statement, nor did he state what the required form was. He merely asserted that the form had not been followed by the Mexican officials in issuing their regulation requiring separate consular certificates for every invoice, and therefore this regulation was not binding upon the merchants of the United States importing goods into Mexico. He concluded that the seizure of cargoes and vessels for violations of this regulation was contrary to international law and rendered the Mexican government liable for the payment of indemnities.4 It does not appear that the Mexican government attempted to refute this argument on legal grounds. That government did, however, assume a general defense against these claims that was destined to become its main reliance against similar demands throughout the succeeding century. Such matters as claims for indemnity for the wrongful action of Mexican officials, said the Mexican government, belonged exclusively within the jurisdiction Vol. I I . )

Poinsett asserted in connection with these seizures that " a more fla-

grant and unjustifiable violation of the property of our citizens never occurred in any country." (Poinsett to Clay, No. 64, December 23, 1826, M S . Desp. Mcx., Vol. 2.) 4 Poinsett to Esteva, September 29, 1826, enclosure with Poinsett to C l a y , No. 60, October 21, 1826, M S . Desp. Mex., Vol. 2. It is to be noted that although the order subsequently repealing this regulation was in the same f o r m as the one objected to by Poinsett, he did not see in this order any violation of international law.

PROTECTION AND

AMBITIONS

of the local Mexican courts, and any person believing himself to have been injured by an official should bring an action against him as provided by Mexican law. T h e Mexican government could not itself be held responsible for the payment of such indemnities. 5 In transmitting this reply to the Department of State, Poinsett remarked that to sue Mexican officials, who were worth nothing, in the courts of Mexico, " where litigation is so very expensive and subject to no fixed rules," was a measure he could not advise American owners of vessels to adopt. Nevertheless, until they had complied with this form he did not know on what ground he could prosecute their claims against the Mexican government. 6 A t the same time, the Mexican government began to complain sharply to the government of the United States about the attitude of American merchants toward Mexican commercial and tariff regulations. Apparently these complaints were not without basis in fact. American traders, having assumed that Mexican independence from Spain would bring free and unrestricted trade, had been inclined to ignore or evade the commercial regulations and tariff burdens established by the Republic. Under the Spanish monopoly, smuggling from the United States into Mexico had been developed to a high art, and during the fight for independence the practice had been encouraged by local Mexican officials. It was but natural that the renewal of restrictions on trade and commerce should bring about a revival of the practice. 7 This in turn incited the Mexican government to more rigorous measures in the enforcement of its customs laws, especially as against American traders. On a number of occasions the Mexican government protested officially to the American government over the failure of American traders to observe Mexican laws and requested that steps be taken to compel them to obey those laws while in Mexican jurisdiction. 8 Besides these difficulties over commercial regulations, the 5 Espinosa to Poinsett, June 13, 1827, enclosure with Poinsett to Clay, N o . 106, November 9, 1827, MS. Desp. Mex., Vol. 3.

Poinsett to Clay, No. 106, November 9, 1827, MS. Desp. Mex., Vol. 3. Poinsett admitted the existence of this widespread smuggling in a note to the Mexican government, April 27, 1826, enclosure with Poinsett to Clay, No. 30, April 30, 1826, MS. Desp. Mex., Vol. 1. 8 7

8

See Manning, op. cit., pp. 267-269.

PROTECTION AND

AMBITIONS

Mexican Treasury officials irritated American merchants by occasionally altering without notice the valuation of goods for tariff purposes and applying the increased duties to goods that had left for Mexico without notice of such increase. Poinsett informed the Mexican government that these sudden changes in tariff schedules were contrary to international law and gave rise to wellfounded claims for indemnity. 9 As a matter of fact, he was successful in certain cases in effecting a refund of increased duties so collected. 10 Poinsett's efforts throughout his term of office were devoted to a removal of these obstacles to American maritime trade with Mexico and to the negotiation of a commercial treaty on a basis favorable to American commerce. He did succeed in causing the repeal or modification of some of the more troublesome commercial regulations, but he experienced great difficulty in negotiating a favorable commercial treaty. Negotiations had been begun soon after his arrival in Mexico in 1825 and a treaty had finally been signed on J u l y 10, 1826, but this treaty had been rejected by both the United States Senate and the Mexican Congress. Another treaty was negotiated and signed in February, 1828, and received the prompt approval of the United States Senate. The Mexican Congress, however, after a long delay, refused to consent to its ratification. Besides these difficulties over commercial relations, other conditions soon arose that were to form the basis of suspicion and distrust between the two governments for the better part of a century. Establishment of independence from Spain had only momentarily brought about political stability in Mexico. Soon there began a violent factional struggle for the control of the governmental machinery that was to continue almost without interruption down to the Diaz régime. Already the expansionist movement in the United States had started its irresistible course toward the west and south; and the occupation of Texas by American settlers had begun to be looked upon with profound suspicion by large 9

Poinsett to Mexican Secretary of State, December 28, 1826, enclosure with Poinsett to Clay, N o . 66, December 27, 1826, M S . Desp. Mex., Vol. 2. 10 Poinsett to Clay, N o . 70, J a n u a r y 25, 1827, M S . Desp. Mex., Vol. 2.

PROTECTION AND AMBITIONS

15

sections of the Mexican public. In the disturbed political situation at Mexico City, Poinsett did not hesitate to throw his influence toward that faction which seemed most disposed toward the establishment of conditions favorable to American interests. B u t his activities soon aroused formidable opposition in Mexico and eventually led to a demand for his recall. 11 When Butler succeeded Poinsett as minister in 1829, the relations between the two countries were far from satisfactory. T h e imposition of heavy tariff burdens on American trade, the extreme measures taken to enforce the anti-smuggling laws, and the failure of the Mexican Congress to consent to the ratification of the commercial treaty had disappointed and irritated the government at Washington. In his general instructions to Butler, Secretary of State Van Buren stressed the necessity of an entire change of attitude on the part of the Mexican government toward the United States. He described the grievances of the United States in part as follows: T h e G o v e r n m e n t of M e x i c o received the first and open a d v a n c e s of the United States towards the establishment of a c o m m e r c i a l intercourse m u t u ally advantageous t o both countries w i t h a degree of indifference and suspicion as extraordinary as it w a s to be regretted.

I t had been e x p e c t e d that

M e x i c o , whose political institutions h a d been m o d e l e d upon those o f

the

United States, would gladly e m b r a c e the first o p p o r t u n i t y of also c o o p e r a t ing with them in the establishment of the principles w h i c h f o r m the basis of our commercial code, to the superior excellence of w h i c h the principal commercial nations of the world h a d given their u n e q u i v o c a l assent. furnished m a t t e r of surprise and regret to find the

first

It therefore

a t t e m p t s of

our

adventurous citizens burthened b y the imposition of e x o r b i t a n t duties upon their importations

into

the

Mexican

into mortification, when our proposals

ports. to

This

enter

surprise

was

into negotiation

changed for

conclusion of a treaty of c o m m e r c e w e r e m e t , at the threshold, b y

the

mani-

festations of indifference indicative of a n y t h i n g b u t a reciprocation of the spirit in which they were m a d e , and w h e n our offers of the liberal principles of perfect reciprocity and m u t u a l abolition of all discriminating duties w e r e answered b y

propositions

of

countervailing

restrictions

and

of

exclusive

privileges to other A m e r i c a n States, w h o s e sole title to t h e m w a s a munity of language. . . . S u c h c o n d u c t , on the part of

com-

M e x i c o . . . was

calculated deeply to wound the sensibility of our citizens, w h o felt that their liberal deportment towards their neighbors g a v e 11

them a claim, i f n o t

See Manning, op. cit., Chap. X .

to

16

PROTECTION AND

AMBITIONS

their gratitude, at least to an equal participation in the advantages to be derived f r o m a mutual commerce.

It would, said Van Buren, give to the President of the United States sincere pleasure if he could call to mind a single act of the Mexican government that would serve to relieve the unfriendly aspect of its whole conduct, but he was unable to do so. T h e government of Mexico could do much to redress the past and to remove well-founded discontent in the United States by its speedy ratification of the commercial treaty negotiated by Poinsett, and by removing the existing obstacles to American trade with Mexico. Van Buren's irritation over the general condition of trade with Mexico was reflected in his instructions to Butler to be vigilant in the protection of Americans and their interests. On this subject he wrote as follows: Among the standing and most important duties of your mission, will be that of protecting by all the means which your official station m a y afford, the interests of our citizens, trading, or in any w a y resorting to the Mexican States, and to secure their persons and property against all undue exactions or illegal exercise of power, on the part of the local authorities of Mexico. D u r i n g the continuance of the present contest between the Mexicans and their invaders, it is not improbable that y o u m a y h a v e frequent occasions to interpose your influence through the regular channel of diplomatic correspondence, between the defenceless citizen of the United States, and the unjust exercise of authority too often growing out of a state of war.

I f such

cases should present themselves for your official interference, you will forthwith make the proper representations to the Mexican G o v e r n m e n t , and demand instant reparation of every act of injustice, or the proper measure of indemnity wherever loss of property shall have been actually incurred. 1 2

T h e choice of Butler as a medium for restoring friendly sentiments between the two governments was scarcely a happy one. His chief interest in his mission appears to have rested in the possibility of acquiring Texas for the United States, and he saw in the political disturbances in Mexico and the bankruptcy of the party in power a golden opportunity to realize this ambition. 13 Shortly after his arrival at Mexico City he wrote that the new President Van Buren to Butler, No. 2, October 16, 1829, M S . Inst. Mex., Vol. 14. Butler to Van Buren, November 3, 1829, MS. Desp. Mex., Vol. 5. This despatch was written by Butler before he had reached his post. 12

13

PROTECTION AND AMBITIONS

17

(Bustamente) and his cabinet were " all of the party considered as devoted to British interests and our political enemies." T h e Secretary of State (Alaman) was, he said, a British agent and received a large salary from a British mining company. This last was an appeal to " t h e master passion of a Mexican — his cupidity," and Butler foresaw the necessity of discovering and addressing himself to " some other passion of nearly equal power, and keeping it awake by judicious applications." 1 4 D u r i n g Butler's term of office the Mexican political situation was in a state of turmoil, the control of the governmental machinery passing rapidly from one faction to another. T h e growing hatred and suspicion of the neighbor to the north, resulting in part from political activities engaged in by Poinsett during his term of office and in part from the process of Americanization that was taking place in Texas, was beginning to be an extremely useful weapon for each successive party in power to rally public support to its cause. T h e outlook became very dark for Butler's scheme of purchasing Texas. So keen was he, however, to bring this about that he had come to associate it in his mind with the idea of simple justice to the United States, and to conceive of all opposition to it as based on unreasoning hatred and motivated by British gold. With this attitude of mind, it was easy for him to see in every act of the Mexican government a fixed policy of hostility toward the United States in general. Coincident with the growing political disorder in Mexico, the number of complaints of mistreatment of American citizens at the hands of Mexican officials had been steadily increasing. So long as Butler had any hopes of accomplishing his chief ambition of purchasing Texas, he showed little concern over these claims. 15 But as his hopes in the matter of Texas began to fade, his attitude 14

Butler t o V a n B u r e n , J a n u a r y s, 1830, M S . Desp. M e x . , V o l . 5.

15

V a n Buren complained in 1832 of Butler's failure to report on the subject

of American claims.

H e assumed that Butler's inaction on the matter w a s due t o

the existing political disorders a n d the state of Mexican finances, and he admitted that it might be prudent not to m a k e representations that w o u l d be w i t h o u t effect " and thus accustom t h e m to meet our demands by refusals."

Nevertheless, he ad-

monished B u t l e r to remind the M e x i c a n government at proper intervals t h a t the United States did not lose sight of the interests of its citizens, and that it only re-

18

PROTECTION AND AMBITIONS

on the complaints of mistreatment of American citizens became firmer. In a note to the Mexican government in September, 1 8 3 2 , Butler complained in strong terms of " the many cases of oppression and of severe and unmerited persecution to which citizens of the United States of America have been subjected in the course of a few months past " and asserted that only the unfortunate civil dissensions in Mexico had caused him to abstain from pressing these cases on the Mexican government. 18 A few months later, in an interview with the Mexican Minister of Foreign Affairs, he again complained bitterly of the treatment of Americans and their property by Mexican officials, and stated frankly his determination to leave Mexico unless satisfaction were given. 17 He did not, in fact, carry out this threat, but shortly afterwards he wrote to Secretary McLane that, in view of the unsettled condition of Mexico, outrages upon the property and persons of foreigners were to be expected. He accordingly recommended the sending of a sloop of war to the Mexican coast. Advantage had been derived from the policy in the past, he said, and he earnestly urged its renewal. 18 In reporting to McLane his efforts to effect a settlement of American claims, Butler asserted that nothing was intended in that direction by the Mexican government but evasion and delay, and that bribery and corruption were " the sole means by which to bring any affair to a successful termination with the General Government at the present moment." 19 The nature of the claims was described by him as follows: M a n y of the claims against them are f o r monies a d v a n c e d to aid in their revolutionary contest — others f o r services rendered and munitions of

war

frained from pressing their claims because of a " delicate and friendly feeling " for Mexico in a time of embarrassment and disorder. Van Burcn to Butler, No. 25, February 27, 1832, M S . Inst. Mex., Vol. 14. 16 Butler to Fagoaga, September 13, 1832, enclosure with Butler to Livingston, No. 37, September 19, 1832, M S . Desp. Mex., Vol. 6. The year 1832 was marked by a series of revolts, culminating in the acquisition of control by Santa Anna. 17 Butler to Livingston, No. 42, December 12, 1832, M S . Desp. Mex., Vol. 6. 18 Butler to McLane, No. 49, J u l y 26, 1833, M S . Desp. Mex., Vol. 6. 19 Butler to McLane, No. 63, March 2, 1834, M S . Desp. Mex., Vol 6.

PROTECTION AND AMBITIONS

19

supplied — others again f o r exactions irregularly and illegally made b y Custom H o u s e officers, whilst m a n y m o r e are f o u n d e d on the seizure and application of the p r o p e r t y of our citizens either to the purposes of the G o v e r n ment itself or t o some of its officers, f o r cases of the latter kind exist. notwithstanding the great v a r i e t y of claims and the dissimilarity

Yet

between

them, all are postponed a s if all depended on the application of a single principle or the exhibition of the same testimony upon which to decide their merits.

C a n a n y one f a i l to p e r c e i v e the evident design of such a de-

termination?

20

Butler's growing irritation over the failure of the Mexican government to make redress for injuries to Americans merely reflected the attitude held from the beginning by the Jackson administration at Washington. In June, 1834, Secretary McLane instructed Butler that the President, dissatisfied with the continued delays in adjusting the difficulties arising out of injuries to American citizens in Mexico, directed that the points at issue be brought again before the Mexican government, and that, if a prompt and favorable answer should not be given, Butler should return home. 21 The tension was momentarily relieved by a change in the political situation in Mexico and the appointment as Minister of Foreign Affairs of Don José de Estrada, a man with whom Butler was on terms of intimacy, and from whom he expected help in furthering his plans to acquire Texas for the United States. 22 While this prospect was in view, the subject of claims was set aside. But Butler soon found that he could make no progress in the purchase of Texas with the party in power, and he thereupon turned his support to the opposition forces. His activities along this line eventually led the Mexican government to ask his recall, and in December, 1835, Powhatan Ellis was appointed in his place. 23 In his general instructions to Ellis, Secretary Forsyth laid special stress on the subject of American claims, saying in part as follows: 20 21

Butler to McLane, No. 56, October 23, 1833, M S . Desp. Mex., Vol. 6.

McLane to Butler, No. 75, J u n e 24, 1834, M S . Inst. Mex., Vol. 15. 22 Butler to Forsyth, J a n u a r y 25, 1835, M S . Desp. Mex., Vol. 6. - 3 Forsyth to Butler, N'o. 104, December 10, 1835, M S . Inst. Mex., Vol. 15. One constructive accomplishment during Butler's term of office was the ratification of the Treaty of Amity, Commerce, and Navigation and the Treaty of Limits, the exchange of ratifications taking place on April 5, 1832.

PROTECTION

AND

AMBITIONS

The claims of citizens of the United States on the Mexican Government f o r injuries to their persons or property by the authorities or citizens of that Republic are numerous and of considerable amount, and though many of them of long standing, provision f o r their payment is pertinaciously withheld and the justice of most of them has not been acknowledged. T h e papers in the archives of the Legation will make you acquainted with the nature of these claims, with the arguments for their recognition and satisfaction which have been urged by your predecessors and with the excuses, evasions and reasons f o r declining their investigation that have from time to time been offered by the Mexican Government. Though the President is willing to look with indulgent consideration upon the almost incessant commotions in Mexico which, by weakening the authority of the Federal Government, m a y have encouraged the perpetration of the acts complained of and b y exhausting its resources have perhaps made it impossible to grant immediate relief to the injured, he thinks that they afford no sufficient apology f o r refusing or declining thus long to examine the claims. Y o u will embrace the first suitable opportunity to impart these sentiments to the Minister of Foreign Affairs. 2 * B u t E l l i s f o u n d no g r e a t e r disposition on t h e p a r t of the M e x i c a n g o v e r n m e n t t o m e e t t h e s e issues t h a n h a d h i s p r e d e c e s s o r .

A

f e w m o n t h s a f t e r he a s s u m e d his p o s t , h e w r o t e to S e c r e t a r y F o r s y t h t h a t a c t s of i n j u s t i c e a n d of oppression w e r e d a i l y p e r p e t r a t e d on citizens of the U n i t e d S t a t e s , a n d e v e r y s u c c e e d i n g a p p l i c a t i o n f o r r e d r e s s w a s m e t " w i t h cold n e g l e c t a n d n o d o u b t w i t h a s e c r e t d e t e r m i n a t i o n to c o m m i t s i m i l a r offenses, seeing t h a t t h e y h e r e t o f o r e d o n e so w i t h entire i m p u n i t y . "

25

have

A n d a g a i n on A u g u s t

2 6 , 1 8 3 6 , in a p e r s o n a l letter to P r e s i d e n t J a c k s o n , E l l i s

wrote

t h a t h e s a w no p r o s p e c t of a j u s t s e t t l e m e n t of A m e r i c a n c l a i m s u n t i l a m o r e d e c i d e d c o u r s e should b e a d o p t e d b y t h e A m e r i c a n government. Our flag is insulted and fired upon — our citizens in the pursuit of a l a w f u l and peaceful trade, seized and imprisoned upon the most frivolous pretext — their property condemned and confiscated in violation of existing treaties and the acknowledged L a w of Nations, and from these evils, past experience has conclusively demonstrated there is no escape, but a change of policy towards these people. Under these circumstances it will be for you 24

Forsyth to Ellis, No. 3, January 29, 1836, MS. Inst. Mex., Vol. 15. Ellis to Forsyth, No. 5, June 23, 1836, MS. Desp. Mex., Vol. 7. See also Ellis to Forsyth, May 28, 1836, MS. Desp Mex., Vol. 7. 25

PROTECTION AND AMBITIONS

21

to adopt such measures as wisdom, justice and policy m a y dictate in vindication of the rights of the American people. 2 6

T h e administration at Washington had already decided upon more determined action in the matter of claims. On July 20,1836, Secretary Forsyth, in a letter of instructions to Ellis, reviewed the outstanding cases for which no satisfaction had been given and stated that further delay in the acknowledgment and redress of the injuries complained of could not be acquiesced in compatibly with the dignity, rights, and interests of the United States. Y o u will, therefore, immediately address a strong but respectful representation to the Mexican Government on the subject of these various injuries, y o u will also remind it of the numerous other complaints which have been made from time to time and which still remain unredressed; y o u will likewise set forth the great forbearance which the Government of the United States has practised towards M e x i c o and the friendly and benevolent motives which have led to i t ; and y o u will state, that the President, finding that this moderation and forbearance, so far from being appreciated by Mexico, seem only to be met by new injuries, is constrained, b y a high sense of d u t y , to ask of the Mexican Government such reparation as these accumulated wrongs m a y , on examination, be found to require. I f , contrary to the President's hopes, no satisfactory answer shall be given to this just and reasonable demand within three weeks, you will i n f o r m the Mexican Government that unless redress is afforded without unnecessary delay, your further residence in Mexico will be useless.

If this state of

things continue longer, y o u will give formal notice to the Mexican G o v e r n ment that unless a satisfactory answer shall be given within a fortnight, y o u are instructed to ask for y o u r passports, and, at the end of that time, if y o u do not receive such answer, it is the President's direction that you demand y o u r passports and return to the United States, bringing with you the archives of the Legation. 2 7

Following out these instructions, Ellis outlined at length in a note to the Mexican government the outstanding causes of complaint of illtreatment of American citizens, and demanded full and prompt reparation. A month later he wrote that unless redress were afforded without unnecessary delay, his longer residence in Mexico would be useless. 28 20 27 28

Ellis to Jackson, August 26, 1836, MS. Desp. Méx., Vol. 7. Forsyth to Ellis, No. 16, July 20, 1836, MS. Inst. Méx., Vol. 15. Ellis to Monasterio, October 11, 1836, enclosure with Ellis to Forsyth, No.

PROTECTION AND

AMBITIONS

T o this note the Mexican Minister of Foreign Affairs replied with considerable feeling, detailing the action taken by the Mexican government in each of the cases complained of, and asserting that his government had at all times fulfilled its obligations under the law of nations and the treaties concluded by the Republic. He 25, October n , 1836, MS. Desp. Méx., Vol. 7; and October 21, 1836, enclosure with Ellis to Forsyth, No. 32, October 25, 1836, MS. Desp. Méx., Vol. 7. The complaints he enumerated were as follows: Schooner " Northampton " — Seizure of cargo removed from stranded vessel and assault of crew by Mexican customs officials. John Baldwin — Persecution and imprisonment of an American citizen by a local Mexican magistrate. Schooner " T o p a z " — Seizure of an American vessel employed by the Mexican Government to carry troops; murder of the master and mate and imprisonment of the crew. Schooner " Brazona " — Seizure of vessel by Mexican military authorities for use against insurgents. Aaron Leggett — Seizure and detention of three vessels belonging to Leggett by Mexican officers for their own use. Schooner " Industry " — Captain imprisoned and fined without cause and compelled to abandon his vessel and cargo. Brig " Paragon " — Fired upon by a Mexican armed vessel. Brig " Ophir " — Seizure and confiscation by Mexican customs officials without adequate cause. Schooner " M a r t h a " — Seizure for alleged revenue laws. Schooner

" Hannah

Elizabeth " — Vessel

non-compliance

fired

upon

and

with

formalities of

pillaged by

Mexican

troops while stranded in a Mexican port; crew and passengers detained. Hallet and Hull — T w o American citizens arrested and maltreated by Mexican soldiers in Matamoros on suspicion of being about to proceed to Texas; American Consulate at that place entered by the same soldiers. Schooner " Eclipse" — Unwarranted seizure of vessel by Mexican customs officials and imprisonment of captain. Brig " Jane " and Schooner " Compeer " and other vessels — Forcible detention at Matamoros. American Consul at Tabasco — Illtreated and threatened by local magistrate. The above complaints were summed up by Ellis in the following words: " The flag of the United States has been repeatedly insulted and fired upon by the public armed vessels of this Government; her Consuls in almost every port of the Republic have been maltreated and insulted by the public authorities; her citizens while in the pursuit of a lawful and peaceful trade have been murdered on the high seas by a licentious and unrestrained soldiery. Others have been arrested and scourged in the

PROTECTION AND AMBITIONS again advanced the customary defense that the proper place for injured foreigners to bring their complaints was in the local tribunals, and cited Article 14 of the Treaty of 1831 in support of this contention.29 He also referred to the exaggeration employed by the claimants in presenting their demands, " endeavoring thereby to reap advantages which they could never otherwise obtain and to escape punishment for misdemeanors which they commit in contempt of the laws of the country where they prosecute their speculations." He flatly denied the charge that Mexican officials had been guilty of illegal, arbitrary, or violent acts against American citizens, and strongly resented the suggestion that the United States had shown indulgence toward Mexico in these cases, " a feeling which in such cases is degrading to the party in whose favor it is exercised." 30 streets b y the M i l i t a r y , like c o m m o n m a l e f a c t o r s ; tbey h a v e been seized and i m prisoned under the most frivolous pretext; their property has been c o n d e m n e d a n d confiscated in violation of existing treaties and the acknowledged l a w s of n a t i o n s ; and large sums of money h a v e been exacted of them contrary to all l a w .

These

acts of outrage and oppression with the numerous other complaints w h i c h

have

been made f r o m time to time and which still remain unredressed, h a v e p a i n f u l l y impressed u p o n the mind of the President of the United States that the great m o d eration and forbearance which he has on all occasions practiced t o w a r d s M e x i c o and the friendly and benevolent motives which h a v e led to it, h a v e n o t been properly appreciated, and he n o w feels himself constrained b y a high sense of d u t y t o ask of the M e x i c a n G o v e r n m e n t such reparation as these accumulated w r o n g s m a y enquiry be f o u n d to require."

on

Ellis to Monasterio, September 26, 1836, enclosure

with Ellis to F o r s y t h , N o . 25, October 11, 1836, M S . Desp. M e x . , V o l . 7. 29

T h e text of this article w a s as follows:

" B o t h the contracting parties promise and engage to give their special protection t o the persons and property of the citizens of each other, of all occupations, w h o m a y be in their territories, subject to the jurisdiction of the one or of the other, transient or dwelling therein; leaving open and free to them the tribunals of justice for their judicial recourse, on the same terms which are usual a n d cust o m a r y w i t h the natives or citizens of the country in w h i c h they m a y

be;

for

which they m a y employ, in defence of their rights, such advocates, solicitors, n o t a ries, agents, and factors, as they m a y judge proper, in all their trials at l a w ; and the citizens of either p a r t y , or their agents, shall e n j o y , in every respect, t h e same rights and privileges, either in prosecuting or defending their rights of person or of property, as the citizens of the c o u n t r y where the cause m a y be tried." Treaties,

Conventions,

etc., between

the United

States

and Other

Powers,

Malloy, Vol. I,

p. ic8g. 30

Monasterio to Ellis, N o v e m b e r 15, 1836, enclosure w i t h Ellis t o

N o . 43, December 22, 1836, M S . Desp. M e x . , V o l . 8.

Forsyth,

PROTECTION AND

AMBITIONS

Ellis countered with a lengthy note in an effort to refute the allegations and arguments of the Mexican answer. He insisted that Article 14 of the Treaty of 1831 did not preclude the resort to other remedies beside those afforded by the local courts. In support of the right of intervention before local remedies had been exhausted, he asserted that it was " the peculiar attribute of sovereign power to ask for redress from an offending nation where there may be just cause of complaint and to pursue such measures as the Law of Nations may allow in the vindication of its rights." In the case of unlawful seizures of American vessels by Mexican officials he found that the injury was twofold: First, in relation to the individual i n j u r y sustained b y all interested in the vessel and cargo, and, secondly, in relation to the right w h i c h the G o v e r n m e n t of the injured p a r t y has to m a k e such seizure the s u b j e c t of diplomatic inquiry and reclamation, if it shall be found that the proceedings had in the case, are in contradistinction

to the well established

principles

of

inter-

national law.

From this he concluded that the decisions of the local courts could not be held as final, " inasmuch as the United States would thereby be precluded from the exercise of an unquestioned right of sovereignty to make investigation into all cases where complaints are made, to the end that she may extend her protection to those entitled to receive it." In conclusion, he stated that he entertained no hope of a satisfactory adjustment of the claims at issue, that he had patiently waited for some evidence of a more favorable disposition on the part of the Mexican government to render justice to his injured country but had waited in vain, and that he felt it his duty, in compliance with his instructions, to request the necessary passports to leave Mexico. 31 The gravity with which Ellis and the administration at Washington regarded the outstanding claims at that time will be better understood when it is recalled that the above correspondence was coincident with the events leading up to the declaration of independence of Texas from Mexico, and reflected in large measure the passions and suspicions aroused by those events. 3 1 Ellis to Monasterio, December 7, 1836, enclosure with Ellis to Forsyth, No. 43, December 26, 1836, MS. Desp. Méx., Vol. 8.

PROTECTION AND AMBITIONS

25

T h e population of Texas had become by that time predominantly American in character. Its economic life was more closely bound up with the United States than with Mexico, and its local government was chiefly in the hands of native Americans. While retaining its membership in the Mexican confederation, it was administered to a large extent as an independent unit. T h e Mexican anti-slavery laws could not be enforced in Texas, nor could the Mexican tariff laws be applied to trade between that state and the United States. These facts, coupled with the widespread agitation in the United States for the annexation of Texas and the frequent moves made by the American government to purchase the territory, convinced the Mexican people that Texas was all but lost to them, and aroused the government to desperate efforts to save it. But the steps taken b y the Mexican government to regain control caused great bitterness in Texas, and in 1835 its population revolted and set up an independent republic. It is needless to say that official and unofficial support given by the United States to the revolt caused great bitterness in Mexico and made diplomatic relations at that time extremely difficult. All of this was clearly reflected in the attitudes of the two governments on the subject of diplomatic claims. Upon learning of Ellis' failure to obtain any satisfaction for outstanding American claims, President Jackson laid the whole subject before Congress in a special message. He asserted that the situation " would justify in the eyes of all nations immediate war." He proposed, however, to give Mexico one more opportunity to atone for the past before the United States should take redress into its own hands. He accordingly recommended that an act be passed authorizing the use of the naval forces of the United States against Mexico to obtain satisfaction of outstanding claims, in the event that the Mexican government refused to make an amicable settlement after another demand had been made from on board an American vessel of war. 32 This recommendation was referred to the Committee on Foreign Relations of the Senate. On February 9, 1837, that Commit3 2 Message of February 6, 1837; Richardson, Messages Presidents, Vol. I l l , p. 278.

and Papers of

the

26

PROTECTION AND

AMBITIONS

tee made a report concurring generally in the position of the President in regard to the wrongs committed on American citizens, but recommending that another demand for redress be made upon Mexico and the result submitted to Congress for their decision before actual hostilities should be authorized. Should prompt justice be refused by the Mexican government, said the report, the United States could then appeal to all nations " not only for the equity and moderation with which we have acted towards a sister republic but for the necessity which will then compel us to seek redress for our wrongs by actual war or by reprisals." In this event, the Committee did not doubt that such measures would be immediately adopted as might be necessary " to vindicate the honor of the country and ensure ample reparation to our injured fellow-citizens." 33 In pursuance of the views expressed in the Senate, President Jackson made a final demand on Mexico in accordance with the form required by Article 34 of the Treaty of 1 8 3 1 . " In reply to this demand, the Mexican government proposed submission of the outstanding claims to arbitration, and this proposal was accepted by the United States. A convention to that effect was signed April 11, 1839, and subsequently ratified by the two nations. 35 This agreement to submit the claims to arbitration offered an admirable way out of the impasse for both sides. So far as Mexico was concerned, the public treasury was quite unable at that mo33

R e p o r t quoted in B u c h a n a n to Slidell, N o . i , N o v e m b e r 10, 1845, M S . Inst.

M é x . , V o l . 16.

Congress a d j o u r n e d w i t h o u t the report being

finally

a c t e d upon,

b u t President J a c k s o n accepted it as an indication of the general t r e n d of sentim e n t of that b o d y . 84

T h e text of this Article w a s as follows:

" T h i r d l y : If ( w h a t indeed cannot be expected) a n y of the articles contained in the present treaty shall be violated or infracted in a n y manner w h a t e v e r , it is stipulated that neither of the contracting parties will order or a u t h o r i z e a n y acts of reprisal, nor declare w a r against the other, on complaints of i n j u r i e s or d a m ages, until the said p a r t y considering itself offended shall first h a v e presented t o the o t h e r a statement of such injuries or damages, verified b y c o m p e t e n t p r o o f s , and d e m a n d e d justice and satisfaction, and the same shall h a v e been either refused or unreasonably d e l a y e d . " 85

M a l l o y , op. cit., V o l . I, p. 1096.

A previous convention had been signed September 10, 1838, a n d ratified

b y the U n i t e d S t a t e s b u t not b y M e x i c o .

PROTECTION AND AMBITIONS

27

ment to pay anything on the outstanding claims of American citizens, even if the government had been disposed to do so. Mexico was, at the same time, in no position from a military standpoint to withstand a demand for payment backed by the armed forces of the United States. B y referring the whole matter to arbitration, all liability to make payment could be postponed for several years at least, and there was an excellent chance that the total amount claimed would be appreciably reduced in the course of the proceedings. T h e United States gained also by the agreement, since it provided a far more certain and less expensive method of obtaining payment than the resort to forceful measures. A t the same time, the proceedings would convert what was merely a collection of asserted claims of undetermined amount into a liquidated international obligation. There was also present considerable doubt that the outstanding claims themselves, when considered apart from the Texas situation, were of sufficient gravity to warrant a resort to armed hostilities. T h e convention of arbitration as finally agreed upon provided for the establishment of a board (or junta, in the Spanish text) of four commissioners, two to be named by the President of each country. T h e claims to be submitted to this Board were those arising from injuries to the persons and property of citizens of the United States by Mexican authorities which had been presented by the claimants to the Department of State or to the diplomatic agent of the United States at Mexico prior to the date of the signature of the convention. 36 The Commissioners were to be " sworn 36

Article I, Claims C o n v e n t i o n 1839, M a l l o y , op. cit., V o l . I, p. 1101.

Noth-

ing w a s said in the convention a b o u t a n y claims of M e x i c a n citizens against the U n i t e d States, and presumably none existed at that time.

H o w e v e r , the M e x i c a n

g o v e r n m e n t felt that it had a just grievance against the United States arising f r o m the revolt of T e x a s , and, in the negotiation of the convention, the Mexican Minister h a d proposed that " all complaints, claims, and differences " between the t w o g o v ernments be submitted to the K i n g of Prussia for decision.

This proposal

was

p r o m p t l y declined by Secretary F o r s y t h , h o w e v e r , on the ground that there were certain causes of complaint

w h i c h directly affected the national character

therefore did not admit of compromise. International

Arbitrations

to Which

See M o o r e , History

the United

ington, 1898, hereinafter cited as International

States

and Digest

Has Been

Arbitrations),

course w h a t F o r s y t h had in mind w a s the T e x a s situation.

a Party

of

and the

(Wash-

V o l . I I , p. 1217.

Of

28

PROTECTION AND

AMBITIONS

impartially to examine and decide upon the said claims " according to such evidence as should be laid before them by the two governments. T h e Board was to meet in Washington and was allowed eighteen months to finish its work (Article I I I ) . All documents in possession of the Department of State in relation to the claims were to be delivered to the Board, and the Mexican government was to furnish such documents in its possession as might be necessary " for the adjustment of the said claims according to the principles of justice, the law of nations, and the stipulations of the treaty of amity and commerce between the United States and M e x i c o " of 1831 (Article I V ) . The Commissioners were to " decide upon the justice " of the claims and the amount of compensation, if any, due from the Mexican government (Article V ) . If they differed, they were to draw up a report stating their differences, and this was to be referred, together with the evidence, to the decision of the King of Prussia. But inasmuch as the documents would be too voluminous for His Majesty to examine himself, he was authorized to appoint a person to act as arbiter in his behalf (Article V I I ) . T h e decision of the Umpire was to be considered as final (Article X ) . Upon the establishment of the Board, an immediate difference of opinion arose over the question whether its functions were " judicial " or " diplomatic." The divergence of views on this point represented a real difference in the interests of the two governments in the proceedings. 37 On the one hand, it was very much in the interest of the United States to have the decisions take the form of legal judgments. T h e claims to be decided were not in fact (nor even in theory at that time) the claims of the government as such, but of private individuals, which the government was presenting in a representative capacity. If it obtained whatever was due on the claims in law, it had fulfilled its duty toward its 37

John Bassett M o o r e expresses the v i e w that the c o n t r o v e r s y w a s

unim-

p o r t a n t and related more to the privileges and immunities of the M e x i c a n

Com-

missioners while in the United States than t o the manner in w h i c h t h e y

should

p e r f o r m their duties.

(International Arbitrations,

V o l . I I , p. 1226.)

A s a matter

of f a c t , the t w o v i e w p o i n t s were reflected in the opposing a t t i t u d e s of t h e C o m missioners throughout the proceedings, although the actual discussion of t h e issue w a s abandoned as fruitless.

PROTECTION AND AMBITIONS

29

citizens. If, on the other hand, it dealt with them in a bargaining spirit, it ran the risk of criticism that it had forfeited the legal rights of the claimants. T h e United States had insisted throughout that it was only asking for its citizens what they were entitled to under international law. 38 It was in the interest of Mexico, on the other hand, to restrict the scope of the arbitration to the pecuniary satisfaction of the actual claims which the United States had espoused and not to have its general liability adjudged as a legal matter on similar claims that might arise in the future. T h e Mexican government was well aware that it had to make some settlement of the actual claims outstanding, but it had no desire to see the decisions on these cases expanded into general rules of international responsibility. In pursuance of its view, the United States government chose as its commissioners two men who had had judicial experience. T h e Mexican government, on the other hand, selected two officials of the executive branch of the government and appointed them as plenipotentiaries in addition to their character as commissioners. In the draft rules of procedure proposed by the American Commissioners, it was provided that the members of the Board should consider each case " in a judicial and not in a forensic or diplomatic s p i r i t " and should interchange their views informally and verbally. T h e Mexican Commissioners, however, rejected the idea that the Board should act as a court of law, and insisted that such a conception was contrary both to the letter and the spirit of the convention. T h e word used in the Spanish text was junta, 39

Daniel W e b s t e r made the f o l l o w i n g statement regarding the judicial nature

of the tribunal: " T h e mixed commission been considered b y

under

the convention

this g o v e r n m e n t

essentially

w i t h that

republic has

a judicial tribunal, w i t h

pendent attributes and p o w e r s in regard t o its peculiar functions.

always inde-

I t s right and

d u t y , therefore, like those of other judicial bodies, are to determine upon the nature and extent of its o w n jurisdiction, as well as to consider and decide upon the merits of the claims which might be laid before it. " On this statement the personal claims in question were held by the b o a r d to be within its jurisdiction, and w e r e duly examined." tions, Vol. I I , p. 1242.

M o o r e , International

Arbitra-

PROTECTION AND

AMBITIONS

which meant, they said, not a tribunal but merely " an assemblage of persons."

Sovereign states could submit their interests to the

decision of an umpire, but not a tribunal.

T h e convention said

nothing about " judging " but only spoke of " adjusting and settling."

T h e decisions of the Commissioners should not be edicts

of a court but agreements of the two nations on the best solution of the disputed cases.

T h e Mexican Commissioners, in other

words, regarded themselves as representatives of the Mexican government in the proceeding and not as neutral commissioners. T h e Americans, on the other hand, stated that whether the Commission was called a board or a tribunal made little difference, since the Commissioners were bound to decide the claims " according to the principles of justice, the law of nations, and the stipulations of the treaty " of 1 8 3 1 .

T h e y were to examine and decide

upon a designated class of claims asserted by American citizens against Mexico.

T h e dispute was " between the individual claim-

ants and Mexico," and the duties of the Board were not executive or legislative but judicial. 39 A s a matter of fact, the Commissioners appear to have acted both as judges and as representatives of their respective countries at different times in the course of the proceedings.

It is difficult to

see how this could have been avoided, especially in view of the fact that the governments were not represented by agents before the Board.

T h e consciousness of national interests is clearly re-

flected in the decisions made by the Commissioners.

Of the

seventy-two cases finally disposed of under the convention of 1 8 3 9 , the American and Mexican Commissioners agreed only in making awards in eleven cases and in rejecting four cases without reference to the Umpire.

The total amount of the eleven awards

was $ 4 3 9 , 3 9 3 . 8 2 on an aggregate amount claimed of $ 5 9 5 , 4 6 2 . 7 5 . In the fifty-seven cases referred by the Board to the Umpire on a difference of opinion, the American Commissioners allowed $ 2 , 4 7 8 , 3 1 1 . 8 7 , whereas the Mexican Commissioners allowed only 39

See arguments of the American and Mexican Commissioners on the proposed rules of procedure, Misc. Papers, convention of April n , 1839. T h e arguments of the Mexican Commissioners are erroneously filed in the Department of State with the records of the Commission of 1848.

PROTECTION AND AMBITIONS $191,012.94.

31

Of these claims the Umpire made an award in fifty-

three cases for a total sum of $ 1 , 5 8 6 , 7 4 5 . 8 6 , and rejected four claims on their merits. 40 M u c h dissatisfaction was expressed with the working of the Board.

T h e r e was considerable time lost in agreeing upon the

rules of procedure, and even after this was done there seems to have been great uncertainty among the claimants as to how they should proceed.

The Board was not able to complete its consid-

eration of the cases submitted to it within the eighteen months' time limit, and a large number of claims coming within the terms of the convention remained over for disposition by subsequent action. 41 T h e main classes of claims decided by the Board arose out of alleged violations of contracts with the Mexican

government,

services rendered to the Republic in its struggle for independence, wrongful imprisonment, illegal exactions of customs duties and penalties, and wrongful interference with colonization projects. In general, there was little discussion of principles of law, the arguments before the Board being confined very largely to questions of fact. T h e arbitration of 1 8 3 9 served to remove the outstanding American claims as an immediate threat to the peaceful relations of the two countries, but it did not alter the underlying conditions that were largely responsible for the accumulation of such claims. Hostility and suspicion toward Americans in Mexico continued unabated, and were encouraged by the increasing border troubles between the two countries.

Political disorder and lack of control

over local authorities by the central government in Mexico provided a fruitful situation for the appearance of many new complaints of mistreatment of American citizens. Although the new Republic of Texas had been recognized by the United States and Great Britain, the Mexican government steadfastly declined to do so, and for a number of years continued 10

See Moore, International Arbitrations, Vol. I I , p. 1232. Sixteen of these cases had been passed on by the national commissioners but had been referred by them to the Umpire too late for him to consider them before the expiration date. 41

32

PROTECTION AND AMBITIONS

sporadic efforts to regain control over the territory. While this condition continued, the diplomatic relations between the United States and Mexico were marked with great asperity. In direct notes to the American government and in circulars to the diplomatic corps in Mexico, the Mexican government openly accused the United States of complicity in the usurpation of Mexican territory. In a circular to the diplomatic corps replying to the charges of the Mexican government, Waddy Thompson (who had succeeded Ellis as American Minister to Mexico) flatly denied all of the Mexican charges and asserted that " to no government in Christendom has the conduct of the United States been so uniformly kind and forbearing." In return for this kindness he was pained to say that " the open violation of the rights of American citizens by the Authorities of Mexico has been greater for the last fifteen years than those of all of the governments of Christendom united." Yet the United States, said Thompson, had left the redress of all of these wrongs to friendly negotiation, " without having even intimated a disposition to resort to force." 42 In its reply to this circular, the Mexican government did not fail to point out that the claims advanced by the United States " without examination or proofs " had served as a basis for President Jackson's request to Congress in 1837 for authority to make war on Mexico. 43 In transmitting this reply to Webster, Thompson stated that " the Mexicans hate us with the hatred of a Spaniard, bitter and unchangeable. The rights of American citizens of every grade and character are subject to constant outrage." The great difficulty in obtaining redress, he said, lay in the circumstance that the facts of the cases at issue could not be ascertained, for the Mexican authorities could prove anything. 44 The Board of Commissioners established under the convention of April 1 1 , 1839, having concluded its labors, Fletcher Webster (Acting Secretary of State) instructed Thompson on Oc42 Thompson to Diplomatic Corps in Mexico, June 6, 1842, enclosure with Thompson to Webster, No. 2, June 6, 1842, M S . Desp. Mex., Vol. 1 1 . 43 Bocanegra to Diplomatic Corps, July 6, 1842, enclosure with Thompson to Webster, No. 4, J u l y 30, 1842, MS. Desp. Mex., Vol. 1 1 . 44 Thompson to Webster, No. 4, July 30, 1842, MS. Desp. Mex., Vol. 1 1 .

PROTECTION AND AMBITIONS

33

tober 13, 1842, to make overtures to the Mexican government for the adjustment of all claims not disposed of by the Board. The terms of this overture were left to Thompson's discretion, but he was " not to propose or assent to any proposition for another mixed commission " such as the last one. It would be much to his credit if he could procure a settlement in money " or such other satisfactory provision as may be of importance to the United States and the claimants and satisfy all the demands of our citizens upon Mexico " (presumably territory). Thompson was reminded that he was dealing with a government not wanting in the arts of diplomacy, and that many complaints had been made against the Mexican government of evasion and procrastination in the fulfillment of its engagements.45 Aside from the existence of many claims not passed upon by the Board of 1839, the situation was further complicated by the inability of the Mexican government to pay the awards of that Board in accordance with the terms of the convention. The condition of the Mexican Treasury at that time was deplorable. The long period of political disorder and revolution, the sending of repeated expeditions to Texas in a vain effort to regain that territory for the Republic, the prevalence of mismanagement and corruption in public office had combined to saddle the country with a huge public debt and to jeopardize Mexican credit in the money markets of the world.48 Thompson had realized that payment of either interest or principal on the awards as scheduled was out of the question, and he had accordingly (before receiving Webster's instruction mentioned above) negotiated a new convention with Mexico postponing the payment of the awards. According to this agreement, which was signed on January 30, 1843, Mexico was to pay the arrears of interest on the awards in April of that year and to remit the principal with subsequent interest in quarterly installments during the next five years. By the sixth article of this agreement, the parties bound them4 5 Fletcher Webster to Thompson, No. 20, October 13, 1842, M S . Inst. Mex., Vol. 15. 4 6 See Edgar Turlington, Mexico and Her Foreign Creditors (New Y o r k , 1930), pp. 84-87.

PROTECTION AND

34

AMBITIONS

selves to negotiate a new convention for the settlement of all claims of the government and citizens of the United States against Mexico not adjudicated by the 1839 Board, and also of all claims of the government and citizens of Mexico against the United States. 47 In defense of this stipulation, Thompson stated to Webster that a cash settlement of outstanding claims by Mexico was out of the question, and that the only alternative to further postponement would have been coercion by war or blockade, which, in his opinion, would not be justified by the nature of the claims, nor would it secure payment in money. A resort to war, wrote Thompson: would doubtless have injured the Mexicans greatly, but it would have been a long time — two years at least — before they would have been brought to terms, if even then, which I doubt. For, having within their Republic all the climates inhabited by civilized man, they have everything within themselves which is necessary to his support; and a war, or quasi-war with Mexico, would by no means be free from its inconveniences to us. The whole coast is subject to malignant diseases, and the mortality and suffering of any blockading squadron would be immense. The expense of such a measure would be, by no means, trifling, and the injurious effects upon our commerce would be very great, not directly, but indirectly. . . . And more than all — a war for money is at all times to be avoided, if indeed such a war is ever justifiable; and it has occurred to me that it would be with somewhat of bad grace that we should war upon any country because it could not pay its debts when so many of our own states are in the same situation. 48

Thompson was of the opinion that the outstanding claims were not of such character as to justify menace. H e had investigated them with great care and was constrained to say that if they were submitted to him as a judge he could not allow them, nor could he with a clear conscience assert them. H e could not see how the United States would be justified in refusing to submit them to the adjudication of an impartial tribunal. It was certain, he said, 47

T h e text of this article w a s as follows: " A new c o n v e n t i o n shall be entered

i n t o for

the settlement

of

all

claims of

the G o v e r n m e n t

and

U n i t e d States against the Republic of M e x i c o , which were not

citizens of

finally

the

decided b y

the late commission which met in the city of W a s h i n g t o n , and of all claims of the G o v e r n m e n t and citizens of Mexico against the U n i t e d States."

M a l l o y , op.

cil.,

V o l . I, p. 1106. 48

T h o m p s o n to Webster, N o . 7, N o v e m b e r 8, 1842, M S . D e s p . M e x . , V o l . 1 1 .

PROTECTION AND AMBITIONS

35

that the Mexican government would never admit the claims and that they could be collected only by force. He summarized the outstanding claims as follows: 1 . Claims rejected by the Board of 1839 on jurisdictional grounds —

$9,2/8. 2. Claims rejected b y the grounds — $86,080.

Umpire

of

that

Board

on

jurisdictional

3. Claims undecided by the Umpire f o r lack of time, on which the American Commissioners had allowed the sum of $928,000. 4. Claims not considered by the Board of 1839.

Regarding the first three classes of claims, Thompson observed that no fault could be imputed to the Mexican government for the failure of the Board of 1839 to settle them. The fourth class consisted of two small claims amounting to approximately $85,000 and four larger claims for which he gave no amount. Of these last four claims, three were land claims on which he had no data other than the assertions of the parties themselves and the arguments of their counsel. He begged Webster to examine these claims again and, if the latter determined to press them, to furnish him with some arguments in support of them, as he himself was ifnable to find any. As for the fourth claim, it might be just to some extent, but he could not forbear to say that it was " exaggerated to a disgusting degree." He cited figures to show this exaggeration and asked: N o w am I with a drawn sword to demand the payment of this claim? I doubt not that the same process of exaggeration has been applied to all the other items. I have felt it to be my duty to speak thus freely, and to call your attention particularly to these cases as M r . Cox writes to me that the President regards them as so f a r settled as not to be discussed. I am quite sure that he is either mistaken in this, or that the President has not received a correct statement of the cases. Y o u may rest assured that these claims will not be admitted by the Mexican Government, and that if we assume the ground indicated, we shall have to resort to force. And it is for this reason that I have taken the responsibility (fully aware of its extent) of exposing their true character. 4 9

The convention which Thompson had signed on January 30, 1843, was subsequently approved and ratified by both countries. 49

Thompson to Webster, November 30, 1842, MS. Desp. Mex., Vol. 1 1 .

36

PROTECTION AND AMBITIONS

T h e y thereupon became bound to enter into a new convention for the settlement of the claims, not only of the citizens of each country against the other government, but also of the two governments against each other. But when it came time to negotiate the convention, considerable uneasiness was displayed at Washington over this latter feature, since it was foreseen that the Texas controversy and the incidents arising out of it might find their way before the proposed commission. I n his instructions to Thompson regarding the negotiation of the new convention, Secretary Upshur stated t h a t he was not aware of any claims resting in pecuniary compensation which the government of the United States (as distinguished from its citizens) had upon the Mexican government, nor of any well-founded claim of the Mexican government upon the United States. H e feared that the blending of claims of this character with those of individuals would lead to much embarrassment. H e observed that, so far as the proposed commission should be called upon to decide claims of individuals against either government, its functions were " judicial," while in regard to claims of one government against the other its functions would be " strictly diplomatic." These two functions must necessarily be exercised separately, he said; and if the claims of individuals were to be postponed until those of the governments against each other should be decided, the former might just as well be abandoned altogether, since the latter type could easily be protracted at will. Mexico, he said, would have the strongest motive for delay, if the payment of her heavy debt to American citizens could be made to await the results of negotiations for the redress of supposed wrongs done to her by the United States government. Hence, it should be provided that the claims of individuals should come first, and that those of the governments upon each other should be confined to such wrongs only as admitted of compensation in money. In fact, he regretted that " a subject so strictly diplomatic " had been referred at all to a tribunal " wholly judicial in its character," and suggested t h a t government claims be made the subject of a separate agreement. T h e United States, he said, could never consent to refer to the judgment of a n y individual or any other government a question involving its " na-

PROTECTION AND AMBITIONS

37

tional honor " or its " rights as an independent nation." It must know the precise character of every claim which Mexico intended to urge against it, before it could consent to submit itself to any other arbitrament than its own sense of right and honor. In conclusion, Upshur admonished Thompson that, in bringing the subject before the Mexican government, it was necessary for him to use a strong and decided tone: Atonement flagrant

should have been made, long ago, for the numerous and

wrongs done by that power to citizens of this country.

Unnecessary

delays must not be submitted to nor will slight excuses be received.

The

honor of this government is pledged to our own people for the diligent and proper prosecution of these claims.

M e x i c o can no longer, consistently with

her own honor or the rights of our citizens, or what is due to this government, seek to delay the execution of what justice so plainly requires at her hands. Y o u will therefore address yourself to her government in language cautious and respectful, yet firm and decided.

Asking nothing unreasonable on our

part, she must be made to understand that we shall expect f r o m her a due attention to our just demands.

T h e readiness with which she entered into

the Convention of January last is received by us as a pledge of her disposition to do full justice to our people.

But the value of that pledge will be

lost if, as we cannot anticipate, she should fail to carry this purpose into execution in good faith and without unnecessary delay. 5 0

T h e Mexican government naturally did not concur in Upshur's views regarding the proposed disposition of government claims, and the negotiation of the new convention proceeded slowly. Secretary Upshur became irritated at the delay and instructed Thompson to present his project of a convention and ask for that of the Mexican government. If there appeared any prospect of an agreement, a reasonable time might be given to discussion, but if it appeared that an agreement was improbable, or that the discussion was prolonged for the sake of delay, Thompson was to present his plan in detail, as an ultimatum, and to require a direct answer whether the Mexican government would or would not accept it. The result was to be communicated to Washington by special courier. 51 Before this instruction was received, Thompson had already 60 51

Upshur to Thompson, No. 42, July 25, 1843, MS. Inst. Mex., Vol. 15. Upshur to Thompson, No. 53, November 18, 1843, MS. Inst. Mex., Vol. 15.

3»

PROTECTION AND

AMBITIONS

concluded with the Mexican plenipotentiaries and signed, on November 20, 1843, a new convention for the arbitration of claims not decided by the 1839 Board. In this convention he obtained all the points which Secretary Upshur had regarded as most material, including: ( 1 ) a provision for the reference to the new Umpire of all claims submitted to the Umpire of the 1839 Board but not decided by him; (2) a provision that the powers of the Commission should be regarded as judicial and not diplomatic; (3) better provisions regarding the production of evidence; and (4) a separate treatment of government and individual claims." While these negotiations were proceeding, the Texas situation was becoming constantly more acute. A Mexican decree issued in 1843, providing that persons fighting under the standard of Texas should be treated as outlaws if captured by Mexico, brought a lengthy protest from Secretary of State Upshur, who predicted that if the decree were carried out, the continent would " present a spectacle of useless slaughter degrading to the char5 2 Thompson to Upshur, November 20, 1843, MS. Desp. Mex., Vol. 11. Regarding government claims, it was stipulated that if the commissioners should unanimously or by a majority vote render a decision on such a claim, the decision should be submitted to both governments for their acceptance or rejection, and that if the governments could not agree, or if the board should not reach a decision, the whole case should be referred to the Umpire.

Concerning the question of the judicial or diplomatic nature of the proposed commission, the following extract from a note from Thompson to the Mexican plenipotentiaries is of interest: " The second point, to which I would advert is that, in the project sent me, it is indicated that the commissioners to be appointed are to possess diplomatic, and not judicial, functions. As those commissioners will act under the solemn sanction of an oath, to decide impartially the cases to be submitted to them, in addition to the high obligation, which the trust imposes, to do justice in every case, I have not been able to see the real importance of the title, which may be given to them. But as much importance was attached to it in the discussions of the former commission, and my Government seems still to think it important, I beg leave to call the attention of Y o u r Excellencies to it. Their functions are essentially judicial, and not diplomatic. The terms of the oath to be prescribed are " to decide impartially," the peculiar province of a judge. Nor can I see any reason for creating so anomalous a body as a Diplomatic Commission. Both the countries are already represented by their diplomatic Representatives; and it is only the manifest impossibility of coming to any practicable result by diplomatic negotiation that renders this convention necessary." Thompson to Bocanegra and Trigueres, Oct. 17, 1843, enclosure with above despatch.

PROTECTION AND AMBITIONS

39

acter of free government, shocking to humanity, disgusting to the moral sense of the civilized world, and worthy only of the most barbarous a g e . " 5 3

Another order of the Mexican President, pub-

lished September 24, 1 8 4 3 , prohibiting foreigners, after the expiration of six months, from engaging in retail business of any kind, was vigorously combatted by Thompson on the ground that it was directly contrary to Article 3 of the T r e a t y of 1 8 3 1 , and would amount to the confiscation of American property. 5 4

To

Secretary Upshur he wrote t h a t " this measure will cause a greater sacrifice of American interests than all the previous outrages of Mexico upon our citizens united."

He had reason to believe, he

said, that it was a part of a general policy of the existing government to cut off all foreign commerce, and he suggested that " very strong language should be used by our Executive backed by the action of Congress."

55

In reply to Thompson's protest, the Mexican Minister of F o r eign Affairs denied that the decree was contrary to the T r e a t y of 1 8 3 1 , since that treaty specifically provided that Americans were subject to Mexican laws while in Mexico.

H e maintained that, in

adopting the measure, the government was merely making use of a right inherent in its sovereignty. 68 Disregarding the protests of Thompson on the previous decrees, the Mexican President, on J u l y 1 4 , 1 8 4 3 , issued a decree ordering all native American citizens out of the border states of the Californias, Sonora, Sinaloa and Chihuahua, and prohibiting the future settlement of any Americans in those states.

Upon

learning of this order, Thompson informed the Minister of Foreign Affairs that unless it were immediately revoked, he would have no alternative left him " but to announce the cessation of his diplomatic relations " with the Mexican government." 53

N o reply

Upshur to Thompson, No. 43, J u l y 27, 1843, M S . Inst. Mex., Vol. 1 5 . Thompson to Bocanegra, September 24, 1843, enclosure with Thompson to Upshur, September 28, 1843, M S . Desp. Mex., Vol. 1 1 . 55 Thompson to Upshur, October 14, 1S43, M S . Desp. Mex., Vol. 1 1 . 56 Bocanegra to Thompson, October 9, 1843, enclosure with Thompson to Upshur, October 14, 1843, M S . Desp. Mex., Vol. 1 1 . 57 Thompson to Bocanegra, December 29, 1843, enclosure with Thompson to Upshur, No. 38, J a n u a r y 4, 1844, M S . Desp. Mex., Vol. 1 1 . 54

40

PROTECTION AND

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having been received to his notes on the subject, Thompson, on December 30, 1 8 4 3 , wrote to Bocanegra announcing " the termination of his official relations " and requesting his passports immediately.

This action brought about an immediate modification

of the order by the Mexican government, making it applicable only to " those who from their bad conduct should be considered as prejudicial to public order."

Thompson declared this modifi-

cation satisfactory and continued his relations with the Mexican government. 58 T h e claims convention negotiated by Thompson was ratified by the United States Senate, but with two important amendments. T h e first of these provided that the Commission should sit in Washington, instead of Mexico City as specified in the convention, and the second one struck out entirely the provision relating to the claims of the two governments upon each other. Secretary Upshur was placed in a somewhat difficult position in defending the second amendment, since the convention of 1 8 4 3 had specifically provided for the inclusion of government claims, and the Mexican government had yielded to the desires of the American government as to the manner of dealing with them.

He

now proceeded to argue that such a provision should never have been included at all.

I f , by the terms of the article, said Upshur,

nothing but a direct indebtedness from one country to another was contemplated, the article was unnecessary, since no such debt existed; and, even if it did, it would involve directly national honor and good faith.

N o nation, he said, would be willing to

admit the possibility of its refusing to p a y a just debt, and no nation that respected itself would be willing to refer to any other power the question whether it had incurred any such obligation or not.

But, waiving this objection, a difficulty no less great

would present itself in ascertaining what was and what was not " a claim of a pecuniary character."

A case would have to be

made up and each fact examined and settled before it could be determined whether a pecuniary claim existed.

Again, a demand

for pecuniary compensation implied that a wrong had been done, 58

Bocanegra to Thompson, January 4, 1844, enclosure with Thompson to Upshur, No. 38, January 4, 1844, MS. Desp. Mex., Vol. 1 1 .

PROTECTION AND AMBITIONS and it was precisely in this way that " questions arise which affect most closely the national dignity and honor." Such a question, said Upshur, could not be referred to an umpire but must be settled between the parties themselves according to their own views as to their rights and obligations. And supposing that a wrong had been done, who but the injured nation should decide whether it did or did not present a fit case for compensation in money? Even assuming that a case had been made out and reparation demanded, who should determine the just amount of reparation? " Could it possibly have been the intention of the parties to refer this question to the Umpire? " He thought not, for the simple reason that " it would put it in the power of the Umpire to exhaust the Treasury of the wrong-doing nation and cripple its industry for ages." A discretion so unlimited, upon a point so vital, could not be safely entrusted to any other than the nation itself on which the demand was made. For these and other reasons, Secretary Upshur found the article either wholly nugatory or highly objectionable. But he insisted that, in rejecting the article, the United States did not seek any advantage whatever. " The question involves no point of national honor or courtesy, but is simply a movement to correct an error into which both governments have fallen." As wise nations they had only to retrace their steps and place themselves where they stood before, on the basis of their own honor and good faith. It does not become the friendly relations subsisting between the United States and Mexico to admit, even by implication, that they are unable to settle, without the intervention of a third power, so small a matter as a claim of a pecuniary character by the one on the other; nor does it consist with their high honor and self-respect to submit to the arbitrament of a third party, questions which so directly involve their national integrity and good faith.

Finally, argued Upshur: national controversies are rarely adjusted by a third power, in a manner satisfactory to the parties. The decision of the Umpire is apt to be received as a rebuke by the unsuccessful party and of course it neither convinces the judgment nor reconciles the feelings of that party. On the other hand, con-

PROTECTION AND

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cessions v o l u n t a r i l y made by the parties themselves, f o r the sake of harmony and peace, occasion no regret, but on the contrary, bring with them the high s a t i s f a c t i o n w h i c h a l w a y s springs f r o m the consciousness of a generous m o t i v e and the p e r f o r m a n c e of a generous action. 5 9

Upshur failed, however, to mention the only real reason for the amendment, which was simply to prevent the actions of the American government in regard to Texas from being submitted to an impartial umpire. In spite of the eloquent arguments of Secretary Upshur, the Mexican government declined to accept the two amendments and rejected the treaty in its new form. Thompson was greatly disappointed at this undoing of his work, particularly as he felt that the amendments were unnecessary and unjustified. He thought that the provision for the submission of pecuniary claims of the governments against each other was " in every point of view just and proper," and he could see no reason why, if the American government submitted claims of its citizens to arbitration, it should not also submit to the same tribunal its own claims and claims against it, " the more especially being a strong government dealing with a weak one." If one government demanded reparation for alleged injuries and the other refused it, what other mode was there of settling it, he asked, but by reference to an umpire? 60 Thompson left Mexico City shortly afterwards, and the efforts to induce the Mexican government to ratify the amended convention were taken up by Benjamin E. Green, Chargé d'Affairs ad interim, but with no hope of success. The fact was, said Green, that, as a result of maladministration and corruption, Mexico was completely exhausted, and any proposition to pay money at all, and particularly to foreign claimants, was extremely unpopular. Under the existing state of political disorder, Santa Anna's party could not risk losing its popularity by any such action. Furthermore, it was the general opinion that Santa Anna was seeking to involve his country in a foreign war with a view to the resumption of dictatorial power and possibly even " to place upon his brow the imperial diadem." Payment of the next installment due on 59 60

Upshur to Thompson, No. 55, February 9, 1844, M S . Inst. Mex., Vol. 15. Thompson to Secretary of State, March 25, 1844, M S . Desp. Mex., Vol. 11.

PROTECTION AND AMBITIONS

43

the awards of the 1839 Commission was, in Green's opinion, extremely doubtful. There was scarcely a dollar in the treasury. Mexico had much to lose by not paying, but the United States had nothing to gain by quarreling with her " unless indeed we should end by gaining possession of California, and thereby secure a harbor for our shipping on the Pacific, and one of the finest countries on the globe." 81 As predicted by Green, the installment due on April 30, 1844, w a s n o t paid, in spite of definite promises made by the Mexican Minister of Foreign Affairs. The fact was, said Green, that the Mexican government simply did not have the money.82 In the meantime, negotiations for the annexation of Texas by the United States had been carried on by Secretary of State Calhoun, and a treaty of annexation was signed on April 12, 1844. This act brought renewed protests from the Mexican government, which had already given public notice that annexation meant war between the two countries. For domestic political reasons the treaty was not ratified by the United States Senate, but this did not discourage the administration in its efforts to effect annexation. Renewed attempts by the government of Santa Anna looking toward the subjugation of Texas brought a firm notice from Secretary Calhoun that the President of the United States would not permit the project of annexation to be defeated by any hostile measures of Mexico. 03 The day after this notice was served, Calhoun sent a strong instruction to Shannon (who had succeeded Green) regarding the failure of the Mexican government to meet the installments due on the awards of the 1839 Board. It could not be expected, said Calhoun, " that the Government of the United States should longer look with indifference on the virtual denial of justice to their citizens." 04 The exhausted state of the Mexican Treasury had induced the United States to refrain from pressing the subject as much as the rights of the claimants warranted, but this 61 62 63 84

Green to Secretary of State, April 8, 1844, M S . Desp. Mex., Vol. 1 2 . Green to Calhoun, No. 5, M a y 30, 1844, M S . Desp. Mex., Vol. 12. Calhoun to Shannon, No. 6, September 10, 1844, M S . Inst. Mex., Vol. 1 5 . The unpaid installments had fallen due on April 30 and J u l y 30 of that year.

44

PROTECTION AND AMBITIONS

forbearance apparently had no other effect than " to encourage that disregard of her engagements which has uniformly marked her conduct towards this country for some years past." Shannon was accordingly instructed to urge in the most decided manner a strict compliance with the terms of the agreement and to protest in the most positive manner against the past neglect of the Mexican government to discharge punctually its treaty engagements. In conclusion, Calhoun asserted that Mexico's whole conduct for some time past had been characterized by " outrage and insult," and he instructed Shannon that, in his correspondence with Mexican officials, he should adopt " a tone and manner which shall indicate, unequivocably, the fixed determination of the United States to maintain, at all hazards, their just rights and dignity." 8 5 Shannon endeavored to reopen the question of the ratification of the amended claims convention by the Mexican government, but was not able to induce the Mexican government to do anything beyond making promises to take up the matter. This led Shannon to express the belief to Calhoun that it was the settled purpose of the Mexican government to decline all action upon the subject of claims so long as that could be done without incurring the risk of a war with the United States. The very fact of baffling all efforts on our part to procure an adjustment of those claims will be made the grounds by the party in power f o r further demands on the confidence and support of the Mexican people. I t would seem to me that when Mexico has refused even to talk upon this subject, it is time for Congress to begin to act, and vindicate the honor of the Country as well as the just rights of our plundered citizens. Until Congress takes hold of this subject, and gives this Government distinctly to understand that the claims of our citizens must be adjusted in a fair and just manner, I do not believe anything can or will be done. T h e whole tendency of things in this country is downward, and there is great danger, if these claims are postponed a few years longer, that they will be entirely lost to our citizens. e e

It will be recalled that the question of the annexation of Texas was one of the main issues of the presidential election in the United States in 1844, and played a large part in the election of Polk over Clay, who had hedged on the issue during the cam65 88

Calhoun to Shannon, No. 7, September 1 1 , 1844, MS. Inst. Mex., Vol. 15. Shannon to Calhoun, No. 4, November 12, 1844, MS. Desp. Mex., Vol. 12.

P R O T E C T I O N AND A M B I T I O N S

45

paign. Immediately after the results were known, Tyler, without waiting for the inauguration of his successor, proposed that Texas be annexed by joint resolution. Such a resolution was adopted March i, 1845. Promptly upon the passage thereof, the Mexican Minister at Washington filed a formal protest and requested his passports. In Mexico, Shannon was no longer officially received by the Mexican government, and after a few months returned to Washington. Polk, after his inauguration, decided to make an effort to reestablish relations with Mexico and, upon obtaining assurances from the Mexican government that a commissioner from the United States would be received, sent John Slidell to Mexico with full powers to adjust all questions in dispute between the two countries. At the same time, the American naval fleet that had been stationed off Vera Cruz was withdrawn. In his instructions to Slidell, Secretary Buchanan stated that the first subject for attention was the claims of American citizens against Mexico. The history of no civilized nation, said Buchanan, presented in so short a period of time so many wanton attacks upon the rights of persons and property as had been endured by citizens of the United States from the Mexican authorities. These never would have been tolerated from any nation on the face of the earth except a neighboring and sister republic. 67 He reviewed the efforts made by the United States to obtain a settlement of these claims and the failure of the Mexican government to meet its obligations or to ratify the proposed arbitration convention as amended by the United States Senate. He instructed Slidell to impress the Mexican government with a sense of its great injustice toward the United States, as well as of the patient forbearance of the latter, which could not be expected to endure much longer. The outstanding claims, he said, must be speedily adjusted in a satisfactory manner. 87

It should be recalled that the claims referred to were those described by Thompson in his despatches of November 30, 1842, and November 20, 1843, quoted supra, pages 35, 38, plus a few additional complaints that had arisen in the meantime. In Thompson's opinion, these claims were not of such a character as to justify menace, and he seems to have been very doubtful of the merits of most of them.

46

PROTECTION AND

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But it was well known to the world, said Buchanan, that the Mexican government was not in a condition to satisfy these claims by a payment of money. Unless the debt should be assumed b y the United States the claimants could not receive what was justly their due. Fortunately, a way was open whereby the United States could assume the burden of satisfying the claims " in perfect consistency with the interests as well as with the honor of both republics." B y the joint resolution of Congress for the annexation of Texas, the executive was authorized to adjust all questions of boundary between the two governments. This boundary could be adjusted in such a manner as to cast the burden of the debt due to American claimants upon their own government Slidell was accordingly authorized to assume the payment of all claims of American citizens against Mexico, and, in addition, to pay five million dollars to Mexico in exchange for a boundary that would give to the United States the territory of T e x a s and New Mexico. If, however, Mexico was unwilling to give up any territory west of the Rio Grande, Slidell was authorized to assume the payment of American claims in return for establishing as a boundary the line claimed by the Texas Congress. In other words, the United States was willing to pay the amount of American claims then outstanding in order to quiet Mexico's claim to Texas, although the government of the United States had repeatedly denied that it had given to Mexico any possible basis of complaint on that score. In addition, Slidell was authorized to offer twenty-five million dollars, plus the assumption of American claims, for a line that included California in the United States, or twenty million dollars for a line that gave the United States a part of California, including the harbor of San Francisco. 68 Unfortunately the existing Mexican government was not in a position to accept this easy way out of its difficulties, even if it had been disposed to do so. The one certain method of arousing opposition to any party in power in Mexico was to propose the cession of any territory to the United States, regardless of the terms of the transaction. Neither the Herrara régime nor the " 8 Buchanan to Slidell, No. i, November 10, 1845, M S . Inst. Mex., Vol. 16.

PROTECTION AND AMBITIONS

47

Paredes régime which overthrew it, was willing even to discuss such a proposal, and Slidell was accordingly not received. When this was made known to Buchanan, he instructed Slidell to conduct himself in such a manner " as to throw the whole odium of the failure of the negotiation upon the Mexican government." H e was to point out in the most temperate manner " the inevitable consequences of so unheard of a violation of all the usages which govern the intercourse between civilized nations." He was to act with such wisdom and firmness in the crisis " that the voice of the American people shall be unanimous in favor of redressing the wrongs of our much injured and long-suffering claimants." In the meantime, anticipating a refusal to receive Slidell, President Polk had ordered the army of Texas to advance to the left bank of the Rio Grande, and had directed the assembly of a strong fleet in the Gulf of Mexico. He would thus be prepared, said Buchanan, to act with vigor and promptitude the moment that Congress should give him the necessary authority. 69 In a further instruction, Buchanan stated to Slidell that, should the Mexican government refuse to receive him, " the cup Nothing of forbearance " would then have been exhausted. could remain but " to take the redress of the injuries of our citizens and the insults to our government into our own hands." Slidell was to act " with such prudence and firmness that it may appear manifest to the people of the United States and to the world that a rupture could not be honorably avoided." If the Mexican government should finally refuse to receive him, he was to demand his passports and return to the United States. " It will then become the duty of the President to submit the whole case to Congress and call upon the nation to assert its just rights and avenge its injured honor " 70 T h e great financial embarrassment of the government in Mexico was the fact relied upon by Buchanan to bring that government to terms. It was reported by Slidell that the Paredes régime was tottering for want of money. It would be easy, wrote Buchanan, for Slidell to make known to Paredes that the United States 69 70

Buchanan to Slidell, No. s, January 20, 1846, MS. Inst. Mex., Vol. 16. Buchanan to Slidell, No. 6, January 28, 1846, MS. Inst. Mex., Vol. 16.

48

PROTECTION AND

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was " both able and willing to relieve his administration from pecuniary embarrassment, if he would do us justice and settle the question of boundary between the two Republics." A treaty for this purpose, if ratified by Mexico and transmitted to the United States, could be returned in a brief space with the ratification of the President and Senate. In the meantime, Paredes could command funds immediately on such assurance. 71 But even this tempting proposal was not sufficient to overcome the opposition of the Mexican government to territorial cession, and Slidell was not received. It is well known how, upon the failure of Slidell's mission, Polk and his cabinet decided to send a message to Congress recommending that " measures be adopted to take redress into our own hands for the aggravated wrongs done to our citizens in their persons and property by Mexico," 72 but that before this was done, a more immediate cause for the commencement of hostilities was furnished by Mexican troops firing upon a detachment of American soldiers that had been sent to the Rio Grande. It is, of course, impossible to determine the precise part played by the outstanding American claims, the annexation of Texas, the slavery question, the fear of British influence in Texas, or the desire to acquire California in bringing on the War of 1846. That war, like all wars, was the product of the total situation, and not of any single issue. While the Polk administration was prepared to use the outstanding claims as a cause of war, it is incredible that these claims by themselves would ever have been considered as of sufficient gravity to justify hostile action. 78 T h e fact that the Mexican government had apparently failed to remove the conditions giving rise to claims undoubtedly had more influence on the attitude of the officials of the United States on the subject than did the character and amount of the specific Buchanan to Slidell, No. 7, March 12, 1846, MS. Inst. Mex., Vol. 16. Rippy, The United States and Mexico (New Y o r k , 1926), p. 11. 7 3 No specific list of these claims is found in the diplomatic correspondence, and it is probable that neither government had a very exact idea of their extent or nature. The Board of Claims established by the United States in pursuance of the treaty of peace of 1848 made awards in a total sum of $3,208,314.96, but this included a large number of claims that arose after the war broke out. 71

72

P R O T E C T I O N AND A M B I T I O N S claims outstanding. Nevertheless, the impression is unavoidable that the gravity with which these claims were regarded had its origin primarily in the Texas situation and the desire of the United States to acquire additional territory held by Mexico. B y the Treaty of Guadalupe Hidalgo, signed February 2, 1848, the United States acquired New Mexico and California, and in consideration therefor agreed to pay Mexico fifteen million dollars, to assume the liquidated claims under the 1839 Convention which Mexico had failed to meet, and to discharge the Mexican government from all other American claims up to the time of the signing of the convention. For these latter claims the United States agreed to make satisfaction up to an amount not exceeding three and one-quarter millions of dollars.74 The claims assumed by the United States were those which had arisen prior to the date of the signing of the treaty, February 2, 1848. In the original American project for a treaty of peace, the limit for the assumption of claims had been fixed as the date of the commencement of hostilities, leaving Mexico liable for any claims arising subsequently, although Trist (American Commissioner for the negotiation of the treaty) was authorized to accept the date of the signing of the treaty as an alternative, if necessary. The Mexican Commissioners, on the other hand, strenuously contended for fixing the date as of the ratification of the treaty. In defending this date, the Mexican Commissioners referred with considerable feeling to the tendency of foreigners to file unjust and unfounded claims against Mexico. Trist quotes one of them (a former Minister of Justice in Mexico) as making the following statement: It is impossible f o r any one who has not occupied the post which I have held, to conceive to what extent we are harassed by the most unjust and unfounded complaints on the part of foreigners of all nations.

They are con-

stantly quarrelling and going to law among themselves (the French especially) and every such quarrel, no matter how perfectly clear the legality and justice of the decision m a y be, becomes the occasion for a complaint 74 Article X I V and X V . The United States had already by legislation passed in 1846 and 1848 paid to American claimants the unpaid installments due from the Mexican government under the Conventions of 1839 and 1843.

SO

PROTECTION AND

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against the authorities, and for a claim for indemnity.

A n d the s a m e is t h e

case w i t h respect t o a l m o s t e v e r y j u d i c i a l p r o c e e d i n g , in w h i c h a f o r e i g n e r is involved.

L e t its l e g a l i t y a n d j u s t i c e a n d e q u i t y b e e v e r so m a n i f e s t , still t h e

c o m p l a i n t a n d c l a i m f o r i n d e m n i t y is sure t o c o m e up.

It was upon this subject of claims, added Trist, that the Mexican people were " most sore and suspicious." Their feelings were " those of a covey of partridges with reference to the hawks that visit the region where they inhabit." Trist was apparently sympathetic with the position of the Mexican Commissioners on this point but held to the date of the signing of the treaty as the limit of assumption of claims in order to prevent the raising of a possible obstacle to the ratification of the treaty by the United States. Trist had no doubt that a large number of claims originating between the outbreak of the war and the signing of the treaty and based on alleged infractions of the twenty-sixth article of the Treaty of 1831 75 would be brought forward by American citizens, but he had " as little doubt that the amount of just claims of this description would be very inconsiderable indeed." He doubted, in fact, that there was a single one which the United States would be under an equitable justification to exact an indemnity for by continuing hostilities, or a single case " which an impartial tri75

T h e text of this article was as follows:

" For the greater security of the intercourse between the citizens of the United States of America and of the United Mexican States, it is agreed, n o w for then, that if there should be at any time hereafter an interruption of the friendly relations which now exist, or a w a r unhappily break out between the t w o contracting parties, there shall be allowed the term of six months to the merchants residing on the coast, and one year to those residing in the interior of the States and territories of each other respectively, to arrange their business, dispose of their effects, or transport them wheresoever they may please, giving them a safe-conduct to protect them to the port they m a y designate.

Those citizens who may be established

in the States and territories aforesaid, exercising any other occupation or trade, shall be permitted to remain in the uninterrupted enjoyment of their liberty and property, so long as they conduct themselves peaceably, and do not commit any offence against the l a w s ; and their goods and effects, of whatever class and condition they m a y be, shall not be subject to any embargo or sequestration whatever, nor to any charge nor tax other than may be established upon similar goods and effects belonging to the citizens of

the State in which

they

reside respectively;

nor

shall the debts between individuals, nor moneys in the public funds, or in public or private banks, nor shares in companies, be confiscated, embargoed, o r detained." M a l l o y , op. cit., Vol. I, p. 1093.

PROTECTION AND AMBITIONS

51

bunal, untrammeled by any rule save the obligation to obey the dictates of an enlightened equity, would make the ground for a decree of indemnity, at the expense of the community where those losses occurred." T r i s t had, in fact, very little sympathy for Americans who had remained in Mexico during the war and thereafter filed claims for damages sustained during that time. Article 26 of the T r e a t y of

1831

In his opinion, so far as referred to merchants, no

claim could be brought unless the claimant had shown due diligence in using the time allowed by that article for extricating himself " from the consequences naturally incident to a residence upon the theatre of hostilities."

In regard to persons other than

merchants, Trist thought that " nothing but a case of the very clearest and strongest kind that can be conceived — a case of deliberate wrong altogether "unprovoked, altogether uncalled for b y the exigencies of war, altogether unconnected with its casualties," could warrant the United States in pressing a claim on behalf of a person who, " having seen fit to seek in a foreign country, a more advantageous field for carrying on his trade than the one afforded by his native land, had found it advantageous to remain there after the two nations had become involved in w a r . " E v e n in such a case, the question would still be between " naked justice " to the millions who had stayed at home and " gratuitous favour " to " the few who had elected to go abroad and settle there, in order to be better off than those who remained at home."

76

Article 1 5 of the Treaty of 1 8 4 8 provided that, to ascertain the amount and validity of the claims from which Mexico was discharged by the treaty, the United States should establish a national Board of Commissioners.

The awards of this Board were

to be considered as final and conclusive, and their decisions were to be governed by the principles and rules prescribed by the first and fifth articles of the unratified claims convention of 76

1843.77

M e m o r a n d u m of T r i s t , J a n u a r y 22, 1 8 4 8 , e n c l o s u r e w i t h T r i s t t o B u c h a n a n ,

N o . 27, J a n u a r y 25, 1848, M S . Desp. M e x . , Vol. 14. 77

A r t i c l e I of t h e u n r a t i f i e d t r e a t y of 1 8 4 3 p r o v i d e d ( i n t e r alia)

that the c o m -

m i s s i o n e r s s h o u l d t a k e a n o a t h " to e x a m i n e a n d decide i m p a r t i a l l y t h e c l a i m s s u b -

PROTECTION AND

AMBITIONS

In pursuance of this stipulation, the Congress of the United States, on March 3, 1849, passed an act directing the President to appoint a board of three commissioners to examine and decide upon the claims of American citizens covered by the treaty. T h e act also made provision for the payment of the awards rendered by the Board. It is obvious that the Commission established by this act differed in important respects from the Commission of 1839 and the projected Commission of 1843. T h e direct interest of the Mexican government in the size and character of the awards was eliminated, and the United States government assumed the role of defendant rather than plaintiff. T h e Board being composed wholly of American citizens, the factors of diverse national policies, legal systems and cultures were likewise eliminated as elements affecting the decisions of the Commissioners. Furthermore, the opinions of the Board as to the legal responsibility of the Mexican government on the claims would be apt to carry less weight as international precedents than those of a mixed tribunal presided over by a neutral umpire. The time limit allowed the Commissioners to dispose of the claims was two years, and they completed their work within that period. Neither of the two governments was represented by an agent before the Board, the individual claimants being charged with the responsibility of presenting their own claims. T w o hundred and ninety-two memorials were received and forty of these were rejected as not setting forth facts sufficient to constitute valid claims. T h e Board actually made 198 awards, for a total amount of $3,208,314.96 (it will be recalled that the amount for mitted to them, and which m a y l a w f u l l y be considered, according t o t h e p r o o f s which shall be presented, the principles of right and justice, the l a w of nations, a n d the treaties between the t w o republics."

Article 5 p r o v i d e d that all claims which

had been considered b y the Commissioners of 1839 and referred to the U m p i r e and not decided b y him, should be referred to and decided b y

the U m p i r e to

appointed under the 1843 C o n v e n t i o n " on the points submitted to t h e

be

Umpire

under the late c o n v e n t i o n , " and his decision should be final and conclusive.

It

w a s also agreed that if the Commissioners should d e e m it expedient, t h e y might submit to the arbiter new arguments upon these claims. pp. 1120-1121.

Malloy,

op. cit., V o l . I ,

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AMBITIONS

53

which the United States had assumed liability under the Treaty of 1848 was $3,250,000). Seventy claims were rejected by the Board as not being sustained by the proofs offered in their support. 78 N o dissenting opinion was filed in any case, and it appears that the three Commissioners were in agreement on all of the awards rendered. T h e cases decided by the Board varied widely in subject matter. Those remaining undecided from the 1839 arbitration related chiefly to alleged illegal enforcement of Mexican customs regulations, and to disputes arising out of colonization schemes. New cases involved claims for acts of revolutionists, unneutral conduct, acts of authorities, requisition of property, forced loans, breaches of contract, expulsion of Americans on the outbreak of the Mexican W a r , wrongful imprisonment, confiscation of vessels and cargo, destruction of property by the Mexican Army which invaded T e x a s in 1836, and injuries to Americans and American property by Mexican military forces during the war. In comparison with the mixed commissions established by the two countries, the Board of 1849 seems to have been very liberal to the claimants, both in the kind of claims allowed and in the amounts granted. T h i s was particularly so during the first nineteen of the twenty-four months of their existence. Thereafter they began to tighten up somewhat, requiring better evidence of the claimants and stricter compliance with the rules of procedure. T h e y also began to stress rules of law regarding citizenship, exhaustion of local remedies, and unneutral conduct that had scarcely been mentioned during the first sessions. This change of attitude was perhaps not unrelated to the knowledge of the amount of money available. A s its labors drew to a close, the Board seems to have become more lenient again, and, at the close, its total awards fell short of the limit set by the treaty by only $41,685.04. The decisions of the Board were received with considerable dissatisfaction in certain quarters, and were subsequently made 78 Report of the Commissioners to the Secretary of State, Senate Ex. Doc. No- 34> 3 2 d Cong., ist Sess., quoted in Moore, International Arbitrations, Vol. II, pp. 1253-1255.

54

PROTECTION AND

AMBITIONS

the subject of investigation by the Congress of the United States. It was eventually disclosed that two claims (Gardiner and Mears) in which large awards had been rendered had been based on fraudulent evidence. On the whole, however, the Investigating Committee criticised the Board for certain irregularities in its proceedings " scarcely compatible with a judicial inquiry," but expressed the opinion that the Commissioners had, in general, " exhibited decided ability in the opinions prepared by them." 78 79

Senate

Arbitrations,

Report

182, 3 3 d C o n g . , 1st Sess., p. 3, q u o t e d in M o o r e ,

V o l . I I , p. 1 2 6 1 .

M o o r e discusses t h e

findings

International

of the C o m m i t t e e

d e t a i l a n d c o n c l u d e s t h a t the criticism of the B o a r d w a s h a r d l y j u s t i f i e d b y facts.

See ibid.,

pp. 1261-1266.

in the

CHAPTER THE ISTHMIAN

III

ROUTE AND

TERRITORIAL

FURTHER

AMBITIONS

AGITATION in the United States for further expansion to the south did not cease with the territorial settlements obtained by the T r e a t y of 1848. Filibustering expeditions from the southern states into Mexico again became frequent, and such measures as were taken b y the local authorities to suppress them were not effective. T h e chaotic political conditions that existed in Mexico after the close of the war gave new life to the doctrine of " manifest destiny " in the United States. This in turn increased the post-war hostility toward Americans in Mexico. Complaints of injuries to American citizens and of illtreatment at the hands of local Mexican officials again became frequent at the Department of State. 1 While the majority of the complaints received during this period arose out of alleged wrongful imprisonment or seizure of property, an increasing number were founded in contract. Prior to the war, the policy of the United States in regard to contract claims had not been uniform, but the Department of State had shown an increasing tendency to confine its support in such cases to the use of unofficial good offices. T h e number of complaints of this kind had been small, and the question had not, as a matter of fact, touched very closely the interests of either government. U p to that time, the activities of Americans in Mexico had been centered very largely upon the development of commerce between the two countries, and their appeals to the Department of State had arisen chiefly out of difficulties over the enforcement of Mexican customs regulations and the lack of security of American merchants and their property in Mexican territory. A small number 1 The most important of these claims arising between 1848 and 1853 are discussed by Rippy, op. cit., pp. 42-67.

SS

56

THE ISTHMIAN

ROUTE

of American companies and individuals had obtained colonization and mining concessions from the Mexican government, but these had not been the source of many disputes. Such complaints as had arisen had been made the basis of claims before the commissions of 1839 and 1849; an< 3 both of these commissions had ruled that they had the power to make awards in contract cases. 2 In the post-war period, however, an increasing interest was shown by American commercial firms in the development of the internal resources of Mexico and the construction of public works. In 1849, Clifford, who had been sent as American Minister to Mexico City after the resumption of diplomatic relations, suggested that the time had come for a change in the policy of the Department of State toward complaints based on contract. He thought that the United States would henceforth find it necessary to afford protection to its citizens in the enforcement of their contracts with foreign nations, " especially such countries as Mexico where the state of civilization, is at least half a century behind that of the United States." This change of policy was daily becoming more necessary, he said, and its propriety more obvious in consequence of the principle having been sanctioned and the practice adopted b y the great powers of Europe. While other governments presented such claims and it was known that the United States gave them no official protection, it was vain for American citizens to expect justice in Mexico, and " worse than useless for them to employ their time in attempts to obtain their just rights." He did not think it necessary to use coercive measures in such cases, but the moral force of official instructions was very great in dealing with the Mexican government. H e urged this course of action in connection with the pending claim of L. S. Hargous for various sums of money advanced to the Mexican government and supplies furnished to it under contract. 3 In reply to this despatch, Secretary of State Clayton admitted that the circumstances of the Hargous claim would seem to jus2 A discussion of the contract cases passed upon by these commissions is found in Moore, International Arbitrations, Vol. 4, pp. 3425-3458. 3 Clifford to Clayton, No. 43, June 13, 1849, MS. Desp. Mex., Vol. 13.

THE ISTHMIAN

ROUTE

57

tify interposition in the limited form suggested, but he feared that even this would be " inexpedient on public grounds," and might ultimately prove prejudicial to the claimant unless Clifford were reasonably confident that it would be successful. I t does not comport with the just dignity of a government and must a l w a y s w e a k e n its moral power to undertake the a d v o c a c y of claims which, if rejected, would not be enforced.

I need not say that there is scarcely

any probability that this government would ever be authorized to coerce payment of claims like those of Mr. Hargous.

I t is believed, however, that the

views of other governments in regard to such claims do not materially differ f r o m those of the United States.

If therefore, it be true, that through a cau-

tious and restricted interference they have obtained p a y m e n t f o r their subjects f r o m the monies received by the Mexican G o v e r n m e n t under the T r e a t y of Guadalupe, there would seem to be good reason to sanction a proceeding for the relief of M r . Hargous by the same means. 4

It is probable that the situation uppermost in Clifford's mind in suggesting a change of policy on contract claims was the question of the construction of an Isthmian railroad. A f t e r the acquisition of California by the United States in 1848, the question of communication between the Atlantic and Pacific coasts became of consuming interest to the people of the United States. As the R o c k y Mountains presented a substantial obstacle to a route wholly in American territory, public attention became centered on the possibility of a railroad or canal across the Isthmus of Tehuantepec in Mexico. A concession for the construction of such a route had actually been given b y President Santa Anna to a Mexican citizen named Garay in 1843, but little work had been done under it; and in 1848 the concession had been transferred to an English firm. It was generally believed in the United States that the Mexicans lacked the capacity to carry out such an extensive project themselves and that it could only be brought to a successful conclusion by American capital and American enterprise. Even before the war, the government of the United States had shown an interest in the project, and Trist had been authorized, in negotiating the treaty of peace, to pay thirty 4

Clayton to Clifford, No. 22, July 14, 1849, MS. Inst. Mex., Vol. 16.

THE ISTHMIAN

58

ROUTE

instead of fifteen million dollars for the Californias and New Mexico, provided he could also obtain the right of passage and transit over the Isthmus. 5 B u t the Mexican Commissioners had declined the offer on the ground that their government had already granted a concession for an Isthmian route to a private contractor, who had, with the consent of the Mexican government, transferred it to English subjects, " of whose rights Mexico cannot dispose." 9 In 1849, the English contractors transferred their concession to the Hargous Brothers of N e w Y o r k , one of whom was the Hargous whose claims for cash and goods furnished to the Mexican government had inspired Clifford's suggestion of a change of policy on contract claims. Shortly after the transfer had taken place, the new owners sought the assistance of the Department of State against the rumored intention of the Mexican government to annul the grant. Secretary Clayton thereupon instructed Clifford to inform the Mexican government that any infringement of the rights of the holders of the grant would be regarded with just dissatisfaction by the United States. 7 In reply to this declaration, Lacunza, the Mexican Minister of Foreign Affairs, pointed out that no ground of complaint in fact existed, since no positive act looking toward infringement had been alleged by the United States. T h e concession had not been annulled, he said, and even if it should be in the future, the United States could not complain unless the annulment should be based on the nationality of the contractors. If, on the other hand, it should take place because of any failure to comply with the conditions of the contract, nothing could legalize the intervention of the government of the United States in the matter. Since the concession was a privilege granted under Mexican law for a project situated entirely within Mexican territory, " there cannot be the slightest doubt, according to the principles of the law of nations, that all questions concerning its validity, the compliance with its conditions, its forfeiture, etc., are to be discussed, decided and determined, according to the laws, and by the constitutionally 5

Rippy, op. cit., p. 48.

6

Ibid.,

p. 49.

7

Ibid.,

p. 50.

THE ISTHMIAN

ROUTE

59

competent authorities of Mexico, to the exclusion of those of any other power." 8 As no steps had, in fact, been taken by the Mexican government to annul the concession, the Department of State apparently did not feel called upon to refute at that time the broad position assumed by the Mexican government against the right of diplomatic interposition in contract cases. That the United States did not accede to this position is evident from the fact that it did not hesitate to interpose in connection with the Garay grant or any other contract matter whenever it found a reason for doing so. Clifford was replaced in September, 1849, by Robert W. Walsh, who, in accordance with his instructions, took up at once with the Mexican government the growing number of outstanding complaints of illtreatment of American citizens. Lacunza, in reply, assured Walsh of the desire of the Mexican government to settle these cases speedily and satisfactorily, but Walsh was not impressed with these promises and wrote to Secretary Clayton that no reliance could be placed upon them. T h e w a y that Ministers come into office and the tenure by which they hold it, causes them to care only f o r bustling through their little hour without doing anything which m a y expose them to annoyance; and nothing is so likely to involve them in trouble a s the p a y m e n t of money, however strongly it m a y have been demanded b y j u s t i c e and honor.

T h e v e r y small amount

in their T r e a s u r y naturally makes them exceedingly loth to diminish it, and the argument must be a cogent one which secures the liquidation of even the most trifling debt. 9

The French Minister, asserted Walsh, had been able to obtain satisfaction for French claimants by threatening to withdraw the French Guard, to whom the protection of Mexico City was at that time entrusted. This had especially annoyed the British Chargé d'Affaires, who complained that he had been able to accomplish nothing in the settlement of pecuniary claims during the three years of his residence, while the French Minister had secured payments of a number of claims in the course of a few months. 8 Lacunza to Clifford, J u l y n , 1849, enclosure with Clifford to Clayton, No. 44, J u l y 13, 1849, M S . Desp. Mex., Vol. 1 3 . 9 Walsh to Clayton, No. 48, September 1 3 , 1849, M S . Desp. Mex., Vol. 13.

THE ISTHMIAN

6o

ROUTE

It would be a great advantage to our citizens

[wrote W a l s h ] if the im-

pression could be given to this G o v e r n m e n t that, should justice not be done to them, the installments due f r o m the United States [under the T r e a t y of Guadalupe H i d a l g o ]

will be held answerable

f o r their claims,

supposing,

of course, that there would be no violation of the treaty in so acting.

It

seems hard that creditors of other nations should be paid with our f u n d s to the exclusion of our own people, and that an iniquitous law passed last y e a r b y Congress forbidding the p a y m e n t of debts, should be cited by the G o v e r n ment as an insuperable obstacle to the s a t i s f a c t i o n of our demands, whilst no scruple is entertained about infringing it f o r the benefit of the French.

Such

a law would seem to authorize almost any retaliatory measure on the part of other Governments, particularly those of which M e x i c o may be a c r e d i t o r . 1 0

Walsh was replaced the following year by Robert Letcher, who was likewise instructed to endeavor to obtain a settlement of outstanding claims of American citizens. Like his predecessors, Letcher found the situation extremely discouraging. He reported that, to every application for redress, the Mexican government merely answered that the complainant should resort to the appropriate state tribunal, " thus referring them to the very party for redress, who inflicted the injuries and outrages upon their property." Letcher informed both the Mexican Minister of Foreign Affairs and the President that such a position was indefensible, " that it was just as bad as to tell the lamb in the wolf's mouth to appeal to the wolf for justice and mercy." His government would not stop to inquire whether the state officials or the federal government perpetrated aggressions upon American citizens. The United States would look to the executive branch of the federal government and to no other source for redress. An invitation to go to law was but an invitation to the aggrieved person to submit to " certain loss, delay, vexation, and ruin." The only method left, wrote Letcher, was to ascertain what was justly due to the claimants and to withhold this amount from the indemnity payable by the United States under the Treaty of Guadalupe Hidalgo. " The truth is," he concluded, " this Government is too feeble to do right, if they desired it; . . . they stand in awe both of the states and of Congress, and are afraid to act." 1 1 10 11

Walsh to Clayton, No. 48, September 1 3 , 1849, M S . Desp. Mex., Vol. 13. Letcher to Clayton, No. 7, March 15, 1850, M S . Desp. Mex., Vol. 14.

THE ISTHMIAN

ROUTE

61

Aside from the subject of American claims, Letcher's efforts were chiefly devoted to inducing the Mexican government to accept a treaty permitting the United States to intervene in the protection of the proposed Isthmian route and to guarantee its neutrality after completion. Conviction in the United States of the necessity of the route was coupled with an equal conviction that protection must be assured by the United States if the project was to be carried to a successful conclusion. The continued political disorder in Mexico, the constant complaints of foreigners and foreign interests, and the inability of the government to exercise control over the whole territory of Mexico furnished a basis for the belief that no responsible company would undertake the work without such a guarantee. On the other hand, the traditional Mexican suspicion of the ambitions of the United States, a suspicion which had been greatly increased by the loss of territory following the war, created an unfavorable atmosphere for the negotiation of any agreement looking toward the extension of American power in any portion of Mexican territory. Letcher succeeded in inducing the Mexican government to sign a convention for the protection of the route, but its terms were very unsatisfactory to Webster (who had just become Secretary of State for the second time) as well as to the Hargous interests. T h e chief objection centered on the provision (not in the original draft submitted by Secretary Clayton) that the United States was to furnish aid in protecting the route only in case Mexico required it, and then only in the manner and on the terms Mexico should designate. Webster proposed various modifications of the convention (including an express recognition that the Tehuantepec grant was held by American citizens), but these modifications were flatly refused by the Mexican government on the ground that they infringed upon " the sovereignty, and honor, the dignity, and the national pride of Mexico." The subsequent efforts of Letcher to conclude a convention satisfactory to the United States were marked by an increasing spirit of mutual hostility which very nearly culminated in a rupture of the relations between the two governments. 12 12

See Rippy, op. cit., pp. 54-55.

62

THE ISTHMIAN

ROUTE

In the meantime, the holders of the grant again took steps to carry it out, and, as a means of raising money, began to sell to American settlers the lands adjacent to the proposed route.

While

this step was in accord with the terms of the concession, the Mexican government professed to see in it merely a repetition of the events that had taken place in T e x a s and had led up to the annexation of that territory b y the United States.

Opposition to

the carrying out of the G a r a y grant grew rapidly, and in M a y , 1 8 5 1 , the Mexican government finally nullified it on the ground that the contractors had failed to comply with its terms within the time limit specified.

This time limit had been extended by a

decree of the Salas régime in 1 8 4 6 , but the Mexican Legislature held that the decree of extension was void for lack of power in the Provisional Government to issue it.

A t the same time, orders

were given b y the Mexican government to stop the work on the survey of the Isthmus and to expel the employees of the American company. Secretary Webster's instructions to Letcher on learning of these events were mild and conciliatory.

He pointed out that the

Salas régime had enacted other legislative measures of importance which were still regarded as law in Mexico; and that the very Congress that had repealed the Salas decree had refused to assent to another act on the ground of its interference with a law passed during the same régime.

It was understood, said Webster, that

opposition to the G a r a y grant was due partly to the fact that it had been conferred by Santa Anna (then out of power) and partly because of the alleged prodigality of the grant.

T o mitigate the

party feeling arising out of the origin of the grant, Letcher should point out that it was in the nature of a charter, and that in all civilized countries charters were held as sacred.

Mexico could

not expect her resources to be developed without the aid of foreign science, enterprise and capital, and these would never seek employment there without assurances of protection " from the mutability of its government and that hostility towards strangers which is a characteristic of the Spanish race."

13

Continued opposition in Mexico to the ratification of the con13

Webster to Letcher, N o . 71, August 18, 1 8 5 1 , M S . Inst. Mex., Vol. 16.

THE ISTHMIAN

ROUTE

63

vention of protection of the Isthmian route led Webster to assume a firmer tone on the subject. He intimated to Letcher that, even though the Mexican government did not voluntarily accept the agreement, the United States might be forced to extend protection anyway. T h e M e x i c a n g o v e r n m e n t will bear in m i n d [he w r o t e ] that, u p o n a certain m e m o r a b l e occasion, this g o v e r n m e n t i n t i m a t e d a desire t o acquire f o r itself the right of w a y across the I s t h m u s of T e h u a n t e p e c , and w a s answered that the privileges w i t h r e f e r e n c e to that I s t h m u s had some y e a r s previously been granted t o an individual w h o had s u b s e q u e n t l y c o n v e y e d t h e m to British subjects.

T h e present holders are the assignees of those British

H e n c e the v a l i d i t y of their title is c o n c e i v e d

to have derived a

subjects. peculiar

sanction, w h i c h the h o n o r of this g o v e r n m e n t d e m a n d s should be maintained unimpaired.

T h i s obligation, h o w e v e r , does not derive its main f o r c e f r o m

the circumstance that the volved.

rights

and interests of individuals alone, are in-

T h e A m e r i c a n public at large has a great and o b v i o u s interest in

the T e h u a n t e p e c passage.

W h e n t h e y shall understand that their

govern-

ment has been baffled in an honorable effort t o secure f o r t h e m the benefits of that passage, b y a reference to the p r e v i o u s grants, and that their c o u n t r y men, h a v i n g b e c o m e proprietors of the privileges e m b r a c e d b y those grants have, b y the acts or omissions of the M e x i c a n g o v e r n m e n t been t h w a r t e d or annoyed in their exercise, t h e y will expect that their own g o v e r n m e n t will take them under its p r o t e c t i o n , and this e x p e c t a t i o n will be fulfilled.

W e are

willing that the m e a n s and the measure of the protection due to t h e m b y both g o v e r n m e n t s shall be limited and defined b y solemn t r e a t y stipulations. I f M e x i c o should r e j e c t our o v e r t u r e s f o r this purpose w e will extend our protection to t h e m alone, a c c o r d i n g to our o w n sense of right and d u t y and as future e v e n t s m a y

require. 1 4

In conclusion, Webster suggested that, if Letcher were to hint, in connection with this subject, that the money due from the United States to Mexico under the T r e a t y of Guadalupe Hidalgo had not been paid in full, and that " contingencies might happen which would warrant this government in withholding it," an impression might be produced favorable to the results of Letcher's negotiation. The negotiations concerning the Garay grant having come to a standstill, the President of the United States wrote a personal letter to the President of Mexico, urging the latter to observe the 14

Webster to Letcher, No. 42, August 24, 1850, M S . Inst. Méx., Vol. 16.

THE ISTHMIAN

64

ROUTE

rights of the holders of the grant and thereby avoid the " too probable " consequences of an appeal by the holders to their own government for an enforcement of their rights. 15 But President Arista refused to yield. T h e American Congress thereupon adopted a resolution supporting the position of President Fillmore and asserting that the United States stood committed to the protection of the rights of its citizens, and, should Mexico within a reasonable time fail to reconsider her position concerning the grant, it would be necessary for the United States to take remedial action. 18 Up to this time, public support of the Garay grant in the United States had apparently rested largely on the assumption that, unless this particular enterprise were carried out, no Isthmian route would be constructed at all. A noticeable easing of the tension between the two countries followed the appearance on the scene of other American bidders for the concession. One of these, Sloo and Associates, actually succeeded (in 1852) in obtaining from the Mexican government a new contract for building the road. This concession omitted many of the features of the Garay grant that had been found objectionable, and, in addition, it provided for a cash payment of $600,000 to the Mexican government, a most welcome feature from the standpoint of the impoverished Mexican Treasury. Furthermore, it did not include the grant of any lands for colonization purposes, and it provided that, in case of disputes, the holders were forbidden to have any recourse other than to Mexican courts. 17 T h e Mexican government saw in this new contract a way of escape from the difficulties arising out of the Garay grant, and at the same time the American government showed signs of weakening in its insistence upon the rights of the holders of that grant. On the death of Webster and on the replacement of Letcher by Conkling at Mexico City, the support of the American government veered definitely to the holders of the Sloo concession. 15

R i p p y , op. cit., p. 62.

16

Ibid., p. 64.

17

Ibid., p. 65.

T h i s w a s an early form of the so-called " C a l v o clause " which

will be discussed in detail later.

Cf. infra, pp. 391-400, 406-418.

THE ISTHMIAN

ROUTE

65

In the meantime, other complaints of mistreatment of American citizens and their property interests in Mexico continued to be received at the Legation. On being informed of these complaints, Conrad (Acting Secretary of State) instructed Conkling that, strictly speaking, it was no part of his official duty to interfere in such " private matters " except on instructions from the Department of State. But cases sometimes occurred which did not admit of delay, said Conrad, " and the administration of justice in Mexico is so defective and it is feared, where our citizens are concerned, is so warped by prejudice that a strict adherence to this rule is not to be expected." There were some claims of American citizens, he said, which remained unadjusted, but it was more prudent to wait on this subject for overtures from the Mexican government. It was, in fact, advisable to connect the subject of outstanding claims against Mexico with that of the right of way over the Isthmus, as the settlement of the one might aid materially in that of the other. 18 As in the case of most of his predecessors, Conkling had not been at his post very long before he reached the conclusion that the Mexicans were incapable of governing themselves. He was even led to express this view in a conversation which he had with the French Minister at Mexico City in December, 1852, and which he reported in detail to Secretary of State Everett. Conkling observed to the French Minister that, considering the injuries, losses and embarrassments to which the people of other nations were subjected in attempting to prosecute commerce with Mexico, those nations might best consult their own interests by withdrawing from such intercourse altogether. But the natural resources of Mexico were so vast as to insure the continuance of this commerce. During his brief stay in Mexico he had seen enough to satisfy himself " that it was vain to expect any change for the better until the government of the country should be placed in other than Mexican hands." The French Minister having " promptly assented " to this view, Conkling added that it might not be amiss f o r the great commercial nations to consider whether it would not be both just and expedient for them, by compact between them18

Conrad to Conkling, No. 4, October 14, 1852, MS. Inst. Mex., Vol. 16.

THE ISTHMIAN

66

ROUTE

selves, to a s s u m e , so f a r at least as relates to c o m m e r c e , the g o v e r n m e n t o f a country

whose

pretensions

to

any

capacity

for

self

government

were

so

clearly preposterous, and whose rulers are either totally ignorant or w a n t o n l y regardless of the plainest principles of international ethics.

T h e French Minister, reported Conkling, at once expressed his concurrence " i n the abstract propriety of this suggestion," but was apprehensive that its adoption would be productive of discords among the foreign governments concerned, because of the diversity of their interests, especially as between England and Spain on the one hand and France and the United States on the other. Conkling replied that he had not overlooked these difficulties, but they did not appear insurmountable. 19 T h e question of claims became closely bound up at this time with the subject of Indian raids from the American side of the border into Mexico. B y Article n of the Treaty of Guadalupe Hidalgo, the United States had undertaken to restrain the Indians residing in the territory acquired by the treaty from making raids into Mexico, and to exact satisfaction for such raids as should occur. 20 But the forces sent by the American government to prevent these raids were inadequate to the task, and the Mexican government found cause to make frequent complaints of the failure of the United States to observe its obligations under the treaty. T h e Mexican government likewise lost no time in filing a 10

C o n k l i n g to E v e r e t t , N o . 7, December 24, 1852, M S . Desp. M e x . , V o l . 16.

I n the same dispatch, C o n k l i n g reported his v a i n efforts to obtain the release of some merchandise of an American named Speyers that had been seized by M e x i c a n authorities.

He regretted to say that in the course of the oral negotiations on this

case " a degree of insincerity and tergiversation has been manifested b y the M e x i c a n Ministers, perfectly revolting to every sentiment of truth and d e c e n c y . "

H e believed

t h a t the M e x i c a n authorities intended at some time to release the claimant's p r o p erty, b u t t h e y intended also " to extort f r o m M r . Speyers a large s u m of m o n e y as the consideration of this tardy act of unquestionable justice."

Conkling eventually

succeeded in obtaining a f a v o r a b l e decision in this case, b u t he reported t h a t it w a s the act of the President himself, " and creditable to his intelligence and love of justice, qualities by which, in comparison w i t h his most distinguished c o u n t r y men in general, I think he is preeminently distinguished." N o . 18, F e b r u a r y 6, 1853, M S . Desp. Mex., V o l . 16.)

(Conkling to Everett,

Speyers subsequently

pre-

sented this claim to the 1868 Claims Commission, but it w a s disallowed w h e n he failed to p r o v e his American citizenship. 20

T h i s subject is fully discussed by R i p p y , op. cit., C h a p . I V , p p . 68-84.

THE

ISTHMIAN

ROUTE

67

large number of claims against the United States for indemnity of losses of individual Mexican citizens as a result of the raids. T h e s e claims had, in 1 8 5 1 , reached a total of eight million dollars.

The United States government strenuously resisted the con-

tention that by Article 1 1 it had become liable for the payment of damages for any failure to prevent the raids, and sought to hold the Mexican government equally responsible on the ground that its border authorities had failed to cooperate with the American troops in their efforts to suppress the incursions. T h e difficulties arising out of the situation became so great that, while denying all pecuniary liability, the government at Washington soon became willing to pay a considerable sum of money to be released from the obligations of Article 1 1 .

Letcher

had been authorized by Webster in 1 8 5 1 to propose to the Mexican government a pecuniary payment for the suppression of this article, providing that a portion of the sum so paid should be applied to the American claims against Mexico then outstanding, but the offer was not accepted.

The amount was later

increased, and the United States in addition agreed to assume the payment of

American

claims, but

the Mexican

govern-

ment fixed a price for its concurrence so far above that authorized by Webster that the negotiations on the subject had been dropped. Conkling was authorized to renew the offer of a sum of money, but was not authorized to agree to the assumption by the United States of the payment of outstanding claims of.American citizens against Mexico.

T h e Mexican government, however, again de-

manded a much greater sum than Conkling was authorized to pay, and the negotiations were again broken off. The faction then in control of the Mexican government was in dire financial straits and was greatly embarrassed by the pressure being exerted upon it to pay outstanding claims.

In an effort

to relieve the situation, the Mexican Minister of Foreign Relations sought to restrict the presentation of claims through diplomatic channels to those arising out of a denial of justice in the Mexican courts.

In a circular note to the diplomatic corps at

Mexico City, he asserted the following principles:

68

THE ISTHMIAN

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A c c o r d i n g t o e x i s t i n g t r e a t i e s a n d the p r i n c i p l e s of i n t e r n a t i o n a l l a w , n o c l a i m s should be p r e f e r r e d in b e h a l f of p a r t i c u l a r f o r e i g n e r s e x c e p t in those c a s e s w h e r e j u s t i c e h a s b e e n o p e n l y denied, b y a r e f u s a l t o h e a r t h e m or b y t h e i r n o t b e i n g a l l o w e d a c c e s s t o the t r i b u n a l s , o r b y a n y f a i l u r e t o c a r r y o u t a s e n t e n c e l e g a l l y p a s s e d a n d d e l i v e r e d , or

finally,

in c o n s e q u e n c e

of

t r e a t y v i o l a t i o n s , t h r o u g h a c t s w h i c h o u g h t n o t t o be s u b m i t t e d t o the decision of any judicial authority.

W i t h the e x c e p t i o n of these c a s e s , w h e r e

c l a i m s m a y be a d d r e s s e d a n d p r e f e r r e d b y D i p l o m a t i c R e p r e s e n t a t i v e s .

His

E x c e l l e n c y h o p e s t h a t a c c o r d i n g t o the m o s t c o m m o n p r a c t i c e a n d rules of t h e l a w .of nations, none of those c l a i m s w i l l b e p r e s e n t e d w h i c h c o m e u n d e r the p r o p e r a n d special j u r i s d i c t i o n of the t r i b u n a l s of t h e n a t i o n . 2 1

In transmitting this circular to the Department of State, Conkling pointed out that a very large proportion of the injuries complained of by American citizens consisted in alleged wanton acts of injustice and oppression by the Mexican judicial tribunals. He expressed the view that the foreign ministers at Mexico City would desire to hold a joint consultation with respect to the tenor of the answer, if any, to be returned to this note. Contrary to his expectation, however, the other foreign ministers did not deem it necessary to consult on the matter, and several of them (including the British Minister) sent a formal acknowledgment of the receipt of the note; thus, in Conkling's opinion, " tacitly acquiescing in the principles it announced." Conkling considered it his duty to express his dissent from these principles and accordingly wrote to the Mexican Minister of Foreign Relations as follows: T h e u n d e r s i g n e d is v e r y f a r f r o m being d i s p o s e d to q u e s t i o n the s u f f i c i e n c y o f those r e m e d i e s a f f o r d e d b y w e l l c o n s t i t u t e d p r o c e d u r e are s i m p l e a n d e a s i l y

understood;

c o u r t s , w h e r e t h e f o r m s of

w h e r e j u s t i c e is s p e e d i l y

ad-

m i n i s t e r e d ; a n d w h e r e , a b o v e all, its m i n i s t e r s , of e v e r y g r a d e , a r e m e n of intelligence, l e a r n i n g a n d u n q u e s t i o n a b l e i n t e g r i t y .

B u t the u n d e r s i g n e d

c o n s t r a i n e d to r e m i n d H i s E x c e l l e n c y t h a t it is the d u t y o f e v e r y n a t i o n t o p r o v i d e s u c h t r i b u n a l s b e f o r e it c a n r i g h t f u l l y c o m p e l t o l o o k t o its j u d i c i a r y f o r redress.

is

civilized foreigners

N o r does the undersigned feel himself

a t l i b e r t y to o v e r l o o k or disguise the f a c t t h a t a v e r y l a r g e p r o p o r t i o n

of

t h e e x i s t i n g c l a i m s in behalf of A m e r i c a n c i t i z e n s a g a i n s t M e x i c o h a d t h e i r sole origin in alleged a c t s of w a n t o n i n j u s t i c e a n d o p p r e s s i o n n o t e n u m e r a t e d 21

Bonilla to Conkling, July

i s , 1853, enclosure with Conkling

N o . 55, July 16, 1853, M S . Desp. Mex., Vol. 17.

to

Marcy,

THE ISTHMIAN

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69

i n H i s E x c e l l e n c y ' s n o t e , p e r p e t r a t e d , it is t r u e , u n d e r t h e f o r m s of l a w , b u t in u t t e r judicial

disregard

and

violation

of

the

plainest

principles

of

justice,

by

officers.22

In reply, the Mexican Minister of Foreign Affairs took a strong exception to Conkling's intimation that the Mexican judicial system was not up to the standard found in civilized states. He also asserted that the rules he had laid down in his previous note, limiting the cases in which diplomatic interposition could be permitted, were merely the rules which were consecrated by international law, the practice of nations and the stipulations of existing treaties. 23 Conkling countered with a recital of some instances of alleged oppression of Americans by judicial authorities in Mexico, and asked whether it was reasonable to expect from an American citizen a favorable estimate of a judicial system " productive of results so extraordinary and deplorable — a system, which, instead of affording protection to the rights of person and property, becomes, in practice, an engine of oppression and cruelty, destructive of both." He dissented from the implication that a foreigner was bound to venerate the institutions of other nations and to submit without complaint to the decisions of their tribunals " merely because it is the pleasure of such nations to sanction or tolerate them." He found such a pretension " w h o l l y inadmissable on the part of a nation which, while it claims equal rank with the most enlightened nations, voluntarily closes its eyes against the lights of the age, and blindly adheres to vicious systems and usages inconsistent with the rights of man, and injurious to the people of other nations as well as its own." Instead of feeling displeasure at criticism and remonstrance, the Mexican nation " ought rather to look the evils complained of in the face, and arouse itself, without delay, to the task of reform." 24 Shortly after sending this reply, Conkling was replaced by Gads22

Conkling to Bonilla, J u l y 1 8 , 1 8 5 3 , enclosure with C o n k l i n g to M a r c y , N o . 56,

J u l y 18, 1853, M S . Desp. M e x . , V o l . 17. 23

Bonilla to Conkling, J u l y

N o . 57, J u l y 30, 1853, loc. 24

Italics in original.

23, 1853, enclosure with

Conkling

to

Marcy,

26, 1853, enclosure w i t h Conkling t o

Marcy,

tit.

Conkling to Bonilla, J u l y

N o . 57, July 30, 1853, M S . Desp. M e x . , V o l . 17.

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den as Minister to Mexico, and the discussion of the general principles regarding diplomatic protection was not continued. In addition to the questions of outstanding claims and of the losses resulting from Indian depredations, a serious boundary dispute developed at this period between the two countries. 25 One of the objectives in the boundary settlement of the Treaty of Guadalupe Hidalgo had been to fix the boundary in such a manner as to permit the construction of a southern transcontinental railway wholly in American territory. But the line adopted by the boundary commissioners appointed under the Treaty threatened to deprive the United States of the territory that was considered as most suitable for the building of such a route. This led to renewed agitation in the United States for the acquisition of more territory from Mexico. The Pierce administration, then in power, was favorably disposed toward the idea of acquiring further territory from Mexico providing this could be done by purchase rather than by conquest, and the desperate financial condition of the Santa Anna régime seemed to provide an admirable opportunity to effect this object, as well as to settle the other outstanding issues between the two countries. President Pierce accordingly sent Gadsden as Minister to Mexico with instructions to negotiate a general settlement. As Gadsden's primary interest lay in the acquisition of further territory, he appears at first to have resented strongly the necessity of dealing with the claims and complaints of private American citizens against Mexico. In his second despatch to M a r c y he wrote as follows: I h a v e f o u n d the d u t i e s of this M i s s i o n f o r the b r i e f p e r i o d t h e y

have

d e v o l v e d on m e v e r y o n e r o u s ; a n d g r e a t l y c o m p l i c a t e d b y the m u l t i p l i c i t y o f p r i v a t e c l a i m s w h i c h h a d e n g a g e d the a t t e n t i o n o f m y P r e d e c e s s o r s ;

and

of m a n y o t h e r s : of w h i c h I h a v e h a d the i n t i m a t i o n a r e s o o n t o be p r e s e n t e d f o r examination and a d v o c a c y .

T h e practice which seems to have

attained

a t this M i s s i o n — w h e t h e r f r o m personal s y m p a t h i e s t o w a r d s s u p p o s e d

ag-

g r i e v e d f e l l o w - c o u n t r y m e n or f r o m an e r r o n e o u s sense of official o b l i g a t i o n t o r e c e i v e , a n d a d v o c a t e p r i v a t e c l a i m s , b e f o r e t h e y h a v e p a s s e d the e x a m i n a t i o n ; o r r e c e i v e d the c o n f i r m a t i o n ; or c o n d e m n a t i o n o f a T r i b u n a l of 25

T h i s b o u n d a r y d i s p u t e is discussed in detail b y

pp. 106-125.

R i p p y , op.

cit.,

first

Chap.

6,

THE ISTHMIAN

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resort, has t r a n s f o r m e d the M i n i s t e r into a mere

7i

counsellor and

attorney

at l a w . I t has exercised, in m y j u d g m e n t and therefore it is that I h a v e b r o u g h t the s u b j e c t to y o u r n o t i c e : a v e r y injurious

and suspicious

influence on the

higher relations b e t w e e n the R e p r e s e n t a t i v e of one G o v e r n m e n t and those w h o are charged w i t h the responsibilities of the other, where he is a c c r e d i t e d . I t h a s a l r e a d y gathered a r o u n d this Mission a s w a r m of importunate

and

c o m p l a i n i n g sufferers a n d w h o seem to be increasing in a G e o m e t r i c a l ratio, as f o r t u n a t e Predecessors h a v e been recognized and relieved in the

ratio

a r i t h m e t i c a l l y — On the present occasion there are indications exteriorally of a multiplication of these claims to a f e a r f u l e x t e n t ; under an expectation that the G o v e r n m e n t at W a s h i n g t o n is well advised of their existence, and

that

liberal provision will b e m a d e f o r their p a y m e n t in any new treaty of adj u s t m e n t , w h i c h the M i n i s t e r m a y h a v e the good fortune to conclude.

You

m a y thus recognize the e m b a r r a s s m e n t s w h i c h even A m e r i c a n citizens m a y thus t h r o w in the path of an early and s a t i s f a c t o r y a d j u s t m e n t of the pending issues with the G o v e r n m e n t of M e x i c o . T h e r e seems t h e r e f o r e a p r o p r i e t y and even necessity of a discrimination to b e m a d e between the p r i v a t e claims of Individuals, w h i c h should d e m a n d the interference of

Ministers, and those to be a d j u d i c a t e d b y

T r i b u n a l s , and w h a t class of even

these

authorized

so disposed of involves the respon-

sibility of Ministerial interposition I should be pleased to h a v e the v i e w s of the A t t o r n e y General of the United States on this subject, not as a m a t t e r of possible relief to m y s e l f , b u t as to the appropriate ministerial R e l a t i o n s t o be maintained w i t h the G o v e r n m e n t where accredited. 2 6

Gadsden ascribed the great majority of claims to the lack of intelligent American consuls in Mexico. " More than nine-tenths of the issues on private claims," he said, " originate either in palpable disrespect of the commercial code and port regulations: and ignorance (though not recognized in law) urged as the excuse." T h e Mexicans were " exceedingly rigid " in the enforcement of their code, and this fact encouraged contraband trade, which, in turn, made the Mexicans more uncompromising in exacting and enforcing penalties. All or most of these cases could have been avoided or satisfactorily settled, said Gadsden, through the interposition of intelligent consuls. 27 He resented the accumulation of these vexatious issues affecting seriously the friendly relations of Gadsden to Marcy, No. 2, August 31, 1853, MS. Desp. Mex., Vol. 18. Italics in original. 2 7 Gadsden to M a r c y , No. 5, September 17, 1853, MS. Desp. Mex., Vol. 18.

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the two governments, and " injurious to those higher claims for settlement" which imperiously demanded ministerial interposition. H e accordingly proposed to abstain from interposing in any cases except those involving tort. If his government did not agree with this view and desired him to continue the former practice, it would be necessary to attach a law officer to the Legation " to arrange and legalize the claims " before they were advocated. In conclusion, Gadsden again called attention to the advantage that the presence of " a respectable Squadron " would have for the increasing commerce and intercourse on the Pacific. 28 T h e various amounts which Gadsden was authorized to offer to the Mexican government for new territory were to cover the claims of the respective nations against each other, so far as these had not been provided for by the T r e a t y of Guadalupe Hidalgo. Mexico was not, however, to be released from any American claims arising since that date. T h e reason for this limitation was the unwillingness of the United States to assume liability for the payment of the claim of the assignees of the Garay grant. It was foreseen that this claim would be very large (probably as much as five million dollars), and it was felt certain that no equivalent allowance therefor could be obtained from Mexico. Such other claims as had arisen subsequently to the Treaty of Guadalupe Hidalgo were " not sufficiently known to make it a matter of prudence " for the United States to assume them, or to hazard the success of the negotiation by reserving a sum to cover them. 28 In spite of M a r c y ' s intention to exclude the claim of the holders of the Garay grant from the negotiations, it appears that the special agent (Christopher A . W a r d ) who was sent to Mexico with verbal instructions for Gadsden, urged the latter to include the claim; and Gadsden eventually complied. 30 Gadsden offered three million dollars for the right of w a y as ceded to Garay, but the Mexican Minister of Foreign Affairs stated flatly that he 28

G a d s d e n t o M a r c y , N o . n , O c t o b e r 3 1 , 1853, M S . Desp. M e x . , V o l . 18.

28

M a r c y to G a d s d e n , N o . 19, D e c e m b e r 22, 1853, M S . Inst. M e x . , V o l . 16.

30

See R i p p y , op. cit., p p . 1 4 0 - 1 4 1 .

THE ISTHMIAN

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73

would not recognize the grant for any amount of money. Gadsden thereupon offered five million dollars to be applied to the satisfaction of all outstanding claims of American citizens including the Garay claim, but the Mexican government insisted that the Garay claim was without merit and that the remaining claims arising subsequent to the date of the Treaty of Guadalupe Hidalgo could not amount to more than two millions of dollars. It was finally agreed that the United States should pay fifteen million dollars for all other considerations (i.e., the additional territory along the border for a railroad and the extinction of the obligation of the United States under Article n of the Treaty) and five million dollars for the satisfaction of private claims, both governments being freed of all obligations thereunder up to the date of the signature of the treaty. 31 The Gadsden Treaty underwent considerable modification in the United States Senate before it was finally ratified. The provision relating to the settlement of claims was stricken out altogether and the payment to Mexico for other considerations was reduced to ten million dollars. The territory to be acquired was reduced, and the article regarding the Tehuantepec right of way was changed to favor the Sloo contract rather than the Garay grant. These amendments were accepted by the Mexican government. Gadsden was greatly disappointed at the action of the Senate in eliminating from the treaty the provision regarding the settlement of claims, since he feared that the claimants thus cast aside would " seriously embarrass " the Legation and do all they could to continue the issues with Mexico. He again voiced his resentment of the tendency of American citizens to bother the Legation with their complaints, 32 and was particularly bitter over the exist31 Notes of diplomatic conferences, December 24, 1853, enclosure with Gadsden to Marcy, March 20, 1854, M S . Desp. Mex., Vol. 18. The notes set the exemption as applying " from the date of the signature of the T r e a t y . " This should obviously read " to the date of the signature of the T r e a t y . " 32

Gadsden to M a r c y , No. 32, J u n e 17, 1854, M S . Desp. Mex., Vol. 18. It is interesting to contrast this attitude with Gadsden's own loud complaint to his government when he lost some of his personal property after he had been recalled from Mexico. See records of 1868 Commission, Docket N o . 54.

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ing practice of recognizing American negroes in Mexico as entitled to the protection of the United States. However, Gadsden took an interest in American claims whenever he saw a possibility of linking them with the acquisition of further territory by the United States.

Mexico, he wrote, was a

bankrupt country whose only resource for meeting its pecuniary obligations was its lands.

T h e depleted state of the Mexican

Treasury had caused the government to resist the settlement of " the very just claims of citizens of the United States," and these claims could not be met except through their liquidation by the United States in connection with an extension of territory. 33 Widespread dissatisfaction in the United States with the territorial settlement of the Treaty of 1 8 5 4 induced Secretary M a r c y to suggest to Gadsden the desirability of a further adjustment of the boundary in connection with the liquidation of outstanding claims.

Gadsden welcomed the suggestion.

T h e Mexicans, he

said, had nothing to offer in settlement of claims but their worthless securities and their " wild domain."

T h e latter, however,

might have a value to the United States far greater than the amount of outstanding claims.

While the treaty he had negoti-

ated had provided for a possible responsibility on the United States of five million dollars for these claims, he believed that " no tribunal however constituted could be so misled as to legalize [them] beyond two millions."

I f , therefore, in the necessity

of readjusting the boundary which was evidently so defective and so calculated to stimulate new border issues, the mistake could be corrected in such a manner as to embrace, in the consideration to be paid, the liquidation of the claims of American citizens, he would do so.

These claims, said Gadsden, had become so irritat-

ing and absorbing that, until they were expunged from the docket, it would be vain to expect any progress in the commercial relations between the two governments. 34 Following this despatch to M a r c y , Gadsden sent a note to the Mexican government urging the early and equitable adjustment of the long-standing claims of Americans and the removal of the 33 34

Gadsden to Marcy, No. 52, J a n u a r y 5, 1855, M S . Desp. Mex., Vol. 19. Gadsden to Marcy, No. 53, J a n u a r y 17, 1855, M S . Desp. Mex., Vol. 19.

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75

existing causes of irritation on the frontier.35 Gadsden left it to the Mexican government to suggest the mode by which these disturbing issues might be settled. The latter, however, failed to 85

The

outstanding

claims mentioned

by

Gadsden included those

provided

f o r in the original d r a f t of the T r e a t y of December 30, 1853 (eliminated in the t r e a t y as ratified), and the following which had arisen since that date (as described by Gadsden): " First — T h e complaint of F. Bronner, an American merchant at Vera C r u z , w h o , a f t e r complying, in every respect, w i t h the R e v e n u e L a w s of Mexico, h a d a large invoice of goods condemned, to his serious i n j u r y , if not loss. " Second — T h e case of the Brig ' H . K i l l o c k , ' stranded at or near the mouth of the

Goatzoacoalcos,

in a gale

of w i n d , and inhospitably

condemned,

and

the

C a p t a i n imprisoned. " T h i r d — The

arrest

and

imprisonment

of

the

American

Consul

Rice

at

A c a p u l c o , whose person w a s sacred, and w h o was made to suffer seriously b y such an o u t r a g e ; and the Judicial proceedings, which are alleged in justification of the violence, withheld, if not denied to the complainant. " F o u r t h — T h e arrest and confinement of George W . M o r t o n , at serious loss of his crop, as a farmer at or near Saltillo, f o r h a v i n g t w o American newspapers t o his address in an American mail robbed f r o m the opposite side of the R i o B r a v o , the bags of which are reported t o have been seen in the Office of the Secretary of the G o v e r n o r of Coahuila. " F i f t h — Declining

to

investigate

the

charges

against

the

Authorities

of

C o a h u i l a for alleged cooperation in the mysterious disappearance of that mail, and to punish the offenders and indemnify the American Citizens by the loss of the mail charged with important letters to them. " Sixth — T h e forcible enlistment of C a r l o s Rios y

Martinez, an

American

Citizen, in the military service of Mexico, and declining either to investigate the matter or grant the redress due. " Seventh — T h e confinement w i t h o u t trial or condemnation, for u p w a r d of f o u r years, of three American Citizens, Shirley, R o d g e r s and Gaines, in the c o m mon jail at D u r a n g o ; and rude treatment while in confinement. " Eighth — T h e arrest and confinement, for more than t w e l v e months, of M r . Augustus Jonan, by a C o u r t of incompetent jurisdiction, dispossessing him at the same time of a large amount of property which m a y be jeoparded b y this exercisc of usurped power, with other losses, w h i c h he m a y sustain by a long absence f r o m pressing business in California, and where alone he can be tried legitimately on the issues made with him before the Mexican courts. " Ninth — T h e colonizing of a B a n d of hostile Indians from Florida with their sanguinary Chief W i l d - C a t , taking them into the service of Mexico, and in encouraging, as has been alleged, their savage f o r a y s on the D o m a i n of Texas. " Tenth — In the aiding of deserters f r o m the United States A r m y and fugitives from labor to escape pursuit by granting passports and free ingress to the interior, while legitimate citizens of the United States were denied the same facilities." ( G a d s d e n to Bonilla, J a n u a r y 29, 1855, enclosure with Gadsden t o M a r c y , N o . 57, F e b r u a r y 19, 1855, M S . Desp. M e x . , V o l . 19.)

THE

76

ISTHMIAN

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c o m e f o r w a r d with t h e e x p e c t e d offer of m o r e t e r r i t o r y in satisfaction of the claims.

I n s t e a d , the M e x i c a n Minister of F o r e i g n

Affairs flatly denied the liability of the M e x i c a n government on the usual ground t h a t the c a s e s w e r e within the jurisdiction of the M e x i c a n tribunals, with whose p r o c e d u r e the executive b r a n c h of the g o v e r n m e n t could not interfere. As the p r o s p e c t of obtaining m o r e t e r r i t o r y by negotiation grew smaller,

Gadsden's

protests

regarding

A m e r i c a n citizens in M e x i c o b e c a m e louder.

the

treatment

of

H i s early resent-

ment against t h e m for bothering him with their petty complaints and e m b a r r a s s i n g his negotiations on " m o r e interesting subjects " was supplanted b y a rising degree of indignation at the reported m i s t r e a t m e n t of his fellow c o u n t r y m e n .

T h e temper of his pro-

tests a t this period is illustrated b y the following e x t r a c t from a despatch t o S e c r e t a r y M a r c y : The Docket of wrongs and petty annoyances against Citizens of the United States had increased to a fearful extent since the usurpation of this oneman absolute, and the motive is not disguised, in the open and avowed desire to expel every member of the Anglo-American family from the Domain, and to deter successors from seeking enterprizes in Mexico, where the right to tyrannize, annoy and abuse Citizens of the North American Barbaric Republic is as inherent in the Absolutism, which rules with an iron rod its humbled and subdued subjects — The treason declared for presuming to question the Supreme faculties, and infallibility of will, which has transcended and superseded the highest law known to the Land; has been extended, without discrimination, to Foreigners as well as to submissive Loyalty — Even the sacred Provisions of Treaties, to which Foreigners look for protection and exemption from abuse, have been disregarded, with the same contempt as has the Constitution, on which Mexicans relied for a liberal administration of justice and their rights, by one in whom they confided, and by whom again betrayed — All, all have been made to give way to the will paramount, of one man absolute, and even Citizens of the United States and its accredited Envoy are to be impeached, and made amenable for the heresy of repudiating infallibility, and for endeavoring to shield Citizens under his protection, from the violent and tyrannical abuse of it. I have shrunk from no responsibility, in the fulfilment of this imposing obligation. Arguments, remonstrances, vetos, and in language however rude to the ears of assumed supremacy, are the only weapons of the American Minister. In the fulfilment of his mission, he cannot relax in their application; and he feels gratified at the angry complaints of the Mexican Minister of Relations as

THE ISTHMIAN the strongest evidence of the

fidelity

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77

and resolution, with which this L e g a -

tion has fulfilled its obligations to its C o u n t r y , in vindication of its integrity and its institutions, and in shielding its Citizens without discrimination f r o m the " rude hand of P o w e r and T y r a n n i c a l Passion " — I t s powers

failing,

the higher responsibility of the stronger argument, d e v o l v e s on the Governm e n t at Washington. 3 6

Gadsden grew so annoyed with the existing conditions that he strongly advocated the establishment by the United States of a protectorate over the whole of Mexico. He was prepared, he said, to suspend negotiations with the Santa Anna government and " to fulfill the once encouraged expectations of this mission [i.e., the cession of further territory] by revived negotiations with a government more legitimate and civilized." 37 While the administration at Washington did not display the passionate feeling of Gadsden on the matter of protecting American citizens, it was nevertheless growing restless under the failure of the Mexican government to take any action on the complaints of mistreatment of American citizens and their property by Mexican officials. In July, 1855, Secretary Marcy wrote to Gadsden as follows: T h e consequence of this neglect to r e f o r m and redress abuses m a y be most deplorable.

M a t t e r s of grave importance, affecting not only the rights of in-

dividuals, but the dignity of this G o v e r n m e n t , are held for months, almost for years, in abeyance, by M e x i c o , and a promise to investigate is the only response to earnest remonstrance.

T h e United States view with s y m p a t h y

and regret the civil dissensions of her Sister Republic, but this unfortunate condition cannot a l w a y s j u s t i f y or palliate the almost u n i f o r m indifference to, or neglect of, those earnest complaints so often addressed to the M e x i c a n Government. 3 8 Gadsden to Marcy, No. 61, April 17, 1855, MS. Desp. Mex., Vol. 19. Gadsden to Marcy, No. 63, May 18, 1855, MS. Desp. Mex., Vol. 19. The increasing asperity of Gadsden's notes to the Mexican Minister of Foreign Affairs regarding the treatment of American citizens greatly irritated that official and led him to protest against Gadsden's " discourteous and unbecoming language." (Bonilla to Gadsden, May 8, 1853, enclosure with Gadsden to Marcy, No. 63, May 18, 1855, ibid.) The Mexican Government in fact requested his recall at one time, but when Washington declined to comply, the matter was not pressed. (Marcy to Gadsden, December 19, 1854, M S . Inst. Mex., Vol. 17.) 30

37

33

Marcy to Gadsden, No. 52, July 6, 1855, MS. Inst. Mex., Vol. 17.

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Gadsden was replaced as Minister in 1 8 5 6 by John Forsyth, who at first adopted a much less belligerent attitude than his predecessor in interposing on behalf of American citizens.

With

this relaxation of pressure, the Mexican government at the same time took a firmer position in denying international responsibility for injuries sustained by foreigners at the hands of local officials, and in insisting that cases within the jurisdiction of the Mexican courts could not be made the subject of diplomatic interposition. 38 Following the overthrow of Santa Anna in 1 8 5 5 , the settlement of American claims again became involved in projects for the acquisition of additional Mexican territory by the United States.

Forsyth's ambitions along this line did not differ mate-

rially from those of his predecessors, and he likewise saw in the deplorable financial weakness of the Mexican government the obvious lever for effecting his purpose.

T h e Comonfort régime

that supplanted the dictatorship of Santa Anna was in financial difficulties from the beginning, and Lerdo, the Minister of F o r eign Affairs, sounded out Forsyth on the possibility of obtaining an immediate loan from the United States in return for a settlement of outstanding issues between the two

governments.

Forsyth received the suggestion with ill-concealed pleasure, and informed Marcy that the moment seemed propitious to take advantage of the financial straits in which Mexico found herself to close up all the business of the Legation and " to accomplish some objects of great interest to the United States."

40

In view of the

temper of the Mexican people, an immediate cession of territory in exchange for a loan and the settlement of outstanding claims was not feasible, but Forsyth believed that the same end could be obtained by a loan in the form of a floating mortgage on land which would eventually be foreclosed by the United States with Mexico's consent. Without instructions from the State Department, Forsyth concluded a series of agreements on the subject with Mexico in F e b 39 In one case the Mexican government even declined to receive a comparatively mild protest from Forsyth over the treatment of some American citizens by a Mexican general. See Forsyth to Marcy, No. i6, J a n u a r y i , 1857, and its enclosures, M S . Desp. Mex., Vol. 20. 40

Forsyth to Marcy, No. 14, December 19, 1856, M S . Desp. Mex., Vol. 20.

THE ISTHMIAN

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ruary, 1857. These included a claims convention, a treaty of reciprocity, a postal treaty, and a treaty of commerce and loans. T h e latter provided for a payment of fifteen million dollars by the United States to Mexico. Seven millions of this amount were to be applied to the payment of the outstanding pecuniary claims of American citizens against Mexico, estimated at three million dollars, and to the liquidation of the English Convention Debt, amounting to four millions. T h e sum was to be repaid to the United States out of a percentage of the customs revenues of Mexico. T h e balance of eight million dollars was to be used by the Mexican government for its own purposes. It was not to be repaid, but was to form the basis for a reduction of 20 per cent in the import and export duties payable by American merchants and shippers in Mexican customs houses. In other words, this last amount was an outright payment to Mexico in exchange for commercial privileges to American merchants. 41 But this unprecedented proposal aroused the opposition of both President Pierce and his successor, President Buchanan, and they declined even to submit the treaties to the Senate for ratification. In the meantime, occasions for protest over the treatment of American citizens continued to arise, and to confirm Forsyth in his belief that some form of political control over Mexico by the United States was the only eventual solution. In September, 1857, he wrote to Cass that existing conditions would continue until " we bind them by Treaties and show a determined purpose to maintain their obligations, if need be, by force." The Mexicans only understood two arguments, he said, " money and power," and he had long been of the opinion that " both could be judiciously used for the benefit of our commerce and the protection of our people." 42 While President Buchanan was opposed to Forsyth's scheme to buy commercial privileges with government funds, he was nevertheless willing to take advantage of the financial stringency of the Mexican government in order to acquire more territory. Under his instructions, Forsyth endeavored to negotiate a pur41 42

See Turlington, op. cit., pp. 104-112. Forsyth to Cass, No. 50, September 26, 1857, MS. Desp. Mex., Vol. 21.

8o

THE ISTHMIAN

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chase of Lower California and other territory, together with a perpetual right of way over the Isthmus of Tehuantepec and a mutual settlement of claims. His proposal, however, was politely declined. 45 A t this juncture, the killing of four Americans in a house on the Sonora frontier aroused Forsyth to implore his government, " for the honor of the American name, and for the sake of an outraged humanity which cries for justice in American accents from so many dungeons on the Pacific Coast," not to let pass the occasion to dissipate the belief that the United States lacked either the will or the power " to protect her children and their flag abroad." He had come to the belief, he said, that a republican form of government for Mexico was a solecism, and that what Mexico sorely wanted was " a firm and good master to hold her destinies in his hands and save her from her worst enemy •—herself." Unhappily, the country did not seem equal to the production of such a man. " Conquer a handful of political adventurers who are the authors of revolution and pronunciamientos, and sweep the robbers from the highway, and the whole task of a ruler in assuring perfect order and tranquility would be done." If such a savior did not, before long, rise up at home, he must come from abroad, and he would be " welcome to the body of the nation to snatch them from the horrors of misrule and anarchy." Where should he come from? Forsyth warned that it was " high time that the United States were taking present means to provide for her future stake in the destinies of this country." 44 Like some of his predecessors, Forsyth became obsessed with the idea of the inevitability of American expansion to the south. In proposing to purchase additional territory from Mexico, he referred at length to those " great natural causes in steady operation and progress, which must, from year to year, diminish the 43

See R i p p y , op. cit.,

p. 214.

Forsyth

thereafter e n d e a v o r e d to effect an

immediate advance of m o n e y from the U n i t e d States to the C o m o n f o r t

regime,

which w a s in danger of collapse, but President B u c h a n a n instructed him that it w a s not the policy of the United States " to interfere w i t h the struggles of contending parties in other nations, in order to give either of them an a d v a n t a g e over the other, either of pecuniary aid or otherwise."

( C a s s to F o r s y t h , N o . 36, J a n u a r y

6, 1858, M S . Inst. M é x . , V o l . 17.) 44

F o r s y t h to Cass, N o . 51, September 26, 1857, M S . D e s p . M é x . , V o l . 21.

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81

Mexican value, and weaken the Mexican tenure of those regions, until, in the end, they may pass from her possession." He traced these causes to the " inevitable laws of population," and urged that it was the part of prudent statesmanship not to ignore them. If the United States government were to follow a purely selfish policy, he said, it might fold its arms and quietly await the operation of these causes. Instead, it was willing to anticipate them, and to acquire from Mexico by fair purchase those lands which it would get anyway. 4 5 B u t the party in power in Mexico, though sorely pressed for funds, flatly refused this golden opportunity to replenish its treasury. Forsyth admitted that the Mexican government was the competent judge to decide whether or not it would accept the generous offer of the United States. But, he pointed out, there remained the claims of American citizens for injuries to person and property, which he and his predecessors had fruitlessly urged upon the Mexican government. T h e United States had offered Mexico the means for the settlement of these claims, and had proposed, " for a sum not more than one-fifth of their nominal amount," to take upon itself the burden of their liquidation. H e presumed, from the rejection of this liberal offer, that the government of Mexico had other plans to propose for the settlement of these claims in full, and he accordingly asked what measures that government had to propose. 48 But the Mexican government, while disclaiming any intention of delay or bad faith in meeting its obligations, did not find itself in a position to make any proposal regarding the settlement of outstanding claims. T h e intimate connection in Forsyth's mind between the subject of diplomatic protection and the acquisition of further territory by the United States is indicated in the following extracts from a confidential despatch he wrote to Cass at this time: You

want

justify you

Sonora?

The

American

in seizing it. . . . Y o u

blood

want

spilled near its line

other territory?

would

Send me

p o w e r to m a k e an u l t i m a t e d e m a n d f o r the several millions M e x i c o

the owes

4 5 Forsyth to Cuevas, March 22, 1858, enclosure with Forsyth to Cass, No. 72, April 3, 1858, M S . Desp. Mex., Vol. 21. 4 6 Forsyth to Cuevas, April 8, 1858, enclosure with Forsyth to Cass, No. 73, April 16, 1858, MS. Desp. Mcx., Vol. 21.

THE ISTHMIAN

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o u r p e o p l e f o r s p o l i a t i o n s a n d p e r s o n a l w r o n g s . . . . Y o u w a n t the T e h u a n tepec t r a n s i t ?

Say

to M e x i c o , " N a t u r e h a s p l a c e d t h a t s h o r t e s t

highway

b e t w e e n the t w o o c e a n s , so n e c e s s a r y t o the c o m m e r c e of the w o r l d , in y o u r keeping.

Y o u will not o p e n it y o u r s e l f nor a l l o w o t h e r s t o open it to t h e

wants of mankind.

Y o u c a n n o t be p e r m i t t e d t o a c t the d o g in t h e

man-

ger. . . . G i v e us w h a t w e a s k f o r in r e t u r n f o r the m a n i f e s t b e n e f i t s w e p r o p o s e to c o n f e r u p o n y o u f o r it, o r w e will t a k e i t . "

47

Following the refusal of the Mexican government to consider any proposal of the cession of territory, Forsyth, in turn like Gadsden, showed increasing impatience over the complaints of mistreatment of American citizens at the hands of Mexican officials. When his demand for the release of an American imprisoned on a charge of conspiracy was denied by the Mexican government, Forsyth wrote Cass that no alternative was left but to send a part of the Pacific fleet to rescue the prisoner, either peaceably or forcibly as might be necessary. " The Department may be perfectly assured," he said, " that nothing but some such energetic measure will serve to put a period to these lawless and high handed acts of outrage on the part of the Mexican authorities. 48 Comonfort was driven from power in January, 1858, and General Zuloaga was placed in the presidency by the Conservative Party. The new régime was promptly recognized by the United States and by the other nations having diplomatic representatives at Mexico City. A t the same time, a revolt was started by the Liberals under the leadership of Juarez. Zuloaga found the public finances in a deplorable state and was forced to resort to a capital tax to raise funds to suppress the revolution. When Forsyth learned that this tax was to be levied on foreign property owners as well as on natives, he promptly protested against it as being contrary to international law and the Treaty of 1831. 49 He also advised American citizens not to comply with it. An American citizen who acted on this recommen47

Forsyth to Cass, Private, April 15, 1858, M S . Desp. Mex., Vol. 21.

Quoted

by R i p p y , op. cit., p. 216. 48

Forsyth to Cass, N o . 75, M a y 18, 1858, M S . Desp. Mex., Vol. 22.

49

This subject is discussed at length in the chapter on Forced L o a n s and

Special Taxes, infra, pp. 124-129.

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»3

dation was ordered by the Mexican government to be expelled from the country. T h i s brought a violent protest from Forsyth and a demand that the order of expulsion be rescinded. T h e Mexican government refused to comply with this demand, and Forsyth thereupon announced that he suspended the political relations of the Legation of the United States with the government of Mexico, until he could learn the pleasure of his own government in the matter. 50 Secretary of State Cass approved Forsyth's action and directed that the Legation should be withdrawn from Mexico. 5 1 In his annual message to Congress of December 6, 1858, President Buchanan discussed the Mexican situation at length. He asserted that the government of the United States had " never hitherto interfered, directly or indirectly," with the internal affairs of the Mexican Republic. He referred to the civil war then existing in Mexico and stated that " the most reprehensible means have been employed by both parties to extort money from foreigners, as well as natives, to carry on this ruinous contest." T h e t r u t h is t h a t t h i s

fine

country, blessed with a productive

soil a n d

benign climate, has b e e n reduced b y civil dissension to a condition of hopeless anarchy and imbecility. attempt

50

to enforce

payment

It would be

in m o n e y

F o r s y t h t o C u e v a s , J u n e 21,

the

vain for this G o v e r n m e n t claims

of

American

to

citizens,

1858, e n c l o s u r e w i t h F o r s y t h t o C a s s , N o . 80,

J u n e 25, 1858, M S . D e s p . M e x . , V o l . 22. very bitter against the French

of

a

almost

I n his c o v e r i n g d e s p a t c h , F o r s y t h

was

Minister at Mexico C i t y w h o had refused to

join

w i t h h i m in a p r o t e s t a g a i n s t t h e c a p i t a l t a x .

F o r s y t h s a i d in p a r t a s f o l l o w s : " I f

I had chosen t o a d o p t the p l a n of M . de G a b r i a c , the French Minister, it have been easy enough to keep the peace.

would

T h i s gentleman, f r o m the beginning of

t h e r e v o l u t i o n of T a c u b a y a , h a s b e e n t h e o p e n a n d a c t i v e p a r t i z a n of t h e

Zuloaga

party.

French,

H e spends a large portion

of his t i m e d a i l y in t h e P a l a c e .

The

I t a l i a n s , S p a n i a r d s , a n d G e r m a n s w h o a r e u n d e r his d i p l o m a t i c c h a r g e , a c c u s e h i m of sacrificing his d u t i e s t o t h e m , t o t h e c o n v e n i e n c e a n d b e n e f i t of t h e Government.

H e is a s c h e m e r ; v e r y a m b i t i o u s , a n d q u i t e u n s c r u p u l o u s . dreams of a

European

protectorate,

to

be f o l l o w e d

e m p i r e , a n d these senseless v i s i o n s a r e i n d u s t r i o u s l y

by

H i s h e a d is a

Mexican

e x c i t e d i n t h e b r a i n s of

fanatics and imbeciles w h o n o w constitute the G o v e r n m e n t . t o defend M e x i c o against the

H e is i n t e n s e l y

Yankees."

C a s s t o F o r s y t h , N o . 49, J u l y

French.

filled

with

kingdom

A m e r i c a n , a n d h a s b e e n h e a r d t o e x c l a i m w i t h g r e a t h e a t t h a t he w a s

51

Mexican

H e is d i s l i k e d b y a l l f o r e i g n e r s , a n d i n t e n s e l y h a t e d b y t h e

1 5 , 1858, M S . I n s t . M e x . , V o l . 1 7 .

or the

anti-

determined

84

THE ISTHMIAN

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now amounting to more than $10,000,000, against M e x i c o , because she is destitute of all pecuniary means to s a t i s f y these demands.

He described the events that had led up to the withdrawal of the American Legation from Mexico City, and asserted that " abundant cause now undoubtedly exists for a resort to hostilities against the Government still holding possession of the capital." Should that government succeed in subduing the revolutionary movement led by Juarez, Buchanan felt that " all reasonable hope will then have expired for a peaceful settlement of our difficulties." On the other hand, if the Juarez party prevailed, there was reason to hope that it would be " animated by a less unfriendly spirit " and would grant redress to American claimants so far as it possessed the means. But

f o r this expectation

I should at once

have

recommended

to

Con-

gress t o grant the necessary power to the President to take possession of a sufficient portion of the remote and unsettled territory of Mexico, to be held in pledge until our injuries shall be redressed and our just demands be satisfied. justice.

We

have already

exhausted

every

milder

means

of

obtaining

In such a case this remedy of reprisals is recognized b y the law of

nations, not only as just in itself, but as a means of preventing actual war.

Buchanan then referred to the conditions along the border and expressed apprehension that Indians and wandering Mexicans might break up the important stage and postal communications that ran close to the southern frontier. I

can

imagine no possible

remedy

for these evils and no mode

storing law and order on that remote and unsettled

of

re-

frontier but f o r the

G o v e r n m e n t of the United States to assume a temporary protectorate over the northern portions of Chihuahua and Sonora and to establish

military

posts within the same; and this I earnestly recommend to Congress. protection m a y be withdrawn as soon as local governments

This

shall be es-

tablished in these Mexican States capable of performing their duties to the United States, restraining the lawless, and preserving peace along the border. I do not doubt that this measure will be viewed in a friendly spirit by the governments and people of

Chihuahua and Sonora, as it will

prove

equally effectual for the protection of their citizens on that remote a n d lawless frontier as for citizens of the United States. 5 2 52

Richardson, op. cit., Vol. V, pp. 512-514.

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85

Congress did not, however, see fit to grant him the necessary power. In the meantime, the revolution started by the Liberal Party under Juarez had been making good progress, and in M a y , 1858, headquarters were established at Vera Cruz. Juarez was more friendly to the United States than the Conservative government at Mexico City, and was willing to go almost any length to gain the prestige of recognition. T h e main things desired by the Buchanan administration from Mexico were: 1) more territory; 2) a right of way over the Isthmus of Tehuantepec; and 3) the settlement of outstanding claims. Apparently none of these could be obtained from the government at Mexico City, but Juarez, for the sake of recognition and a suitable cash payment, was willing to go a long distance toward granting them all. 53 Accordingly, Robert McLane was appointed Minister to Mexico on March 7, 1859, and was instructed that, if he found a government in Mexico exercising general authority over the country and likely to maintain itself, he was to recognize it without reference to the " rightfulness of its existence." A t the same time, he was told that the sympathies of the United States were strongly with the party of Juarez, and the fact that that party was not in possession of the capital of the country should not be a conclusive consideration against i t . " A s a matter of fact, in the confused situation then existing, neither party could be said to be in control of the country. It was accordingly not difficult for McLane, upon his arrival in Mexico, to find in favor of the Juarez party and to extend to it the full force of recognition by the United States." 53

See P i p p y , op. cit., p. 219.

54

Cass to M c L a n e , N o . 2, M a r c h 7, 1859, M S . Inst. M e x . , V o l . 17.

55

In justification of his extension of recognition to the Juarez p a r t y , M c L a n e

w r o t e to Cass as follows: " In any other c o u n t r y than M e x i c o , I should h a v e had grave doubts in coming t o the conclusion at w h i c h I h a v e arrived, b u t a v i e w of the v e r y large interest, political and commercial, a l r e a d y i n v o l v e d in the right of w a y over the Isthmus of Tehuantepec, and with the k n o w l e d g e t h a t this transit was the subject of present legislation or decrees by

b o t h g o v e r n m e n t s , and that the S t a t e of Sonora

also,

w h i c h offered so desirable a route f r o m the Pacific Ocean to our T e r r i t o r y

of

Arizona, w a s n o w engaged in a contest w i t h the Central G o v e r n m e n t in relation t o its public domain in t h a t state, in w h i c h contest the rights and property

of

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This action brought a strong protest from the government at Mexico City, then under the presidency of General Miramon. That government charged that the action of the United States had been motivated solely by a desire to see established in Mexico a régime that would gratify the ambitions of the United States for further territory. The protest referred to the fact that, shortly after recognition by the United States of the Zuloaga government at Mexico City, the American Minister had, on express instructions from Washington, tried to induce that government to cede to the United States certain territory for a stipulated sum of money, and also to grant a transit route over the Isthmus of Tehuantepec. Upon the rejection of these proposals, continued the protest, the American Minister then changed his policy and commenced to place obstacles in the way of the Mexican government by provoking disagreeable questions, " wounding at every step the national pride, and pressing or sustaining claims, always exaggerated and for the most part destitute of foundation." Furthermore, the American Minister had counselled his fellow citizens to disobey the Mexican government for the express purpose of provoking that government to coercive measures which could be used as an excuse to sever diplomatic relations. In this, alleged the protest, he had been supported by his own government. Such action was " opposed to the law of nations and to the usages established and admitted by all nations," and had no other aim than " the material aggrandizement of the United States at the expense of the Mexican Republic." 56 In his annual message of December 19, 1859, President Buchanan again requested authority from Congress to employ military forces in Mexico. He referred to the recognition granted to the Juarez faction and to the fact that this faction had " unhappily " not been able to establish its power over the whole American citizens were deeply involved, I felt it to be my duty to act promptly in opening political relations with some power, if such could be found, consistent with those principles by which I had been instructed to govern myself." M c L a n e to Cass, No. 1, April 7, 1859, M S . Desp. Mex., Vol. 23. 5a Circular issued by Mexican Department of State and Foreign Affairs, April 1 4 , 1859, trans, enclosed with McLane to Cass, N o . 10, M S . Desp. Mex., Vol. 23.

T H E ISTHMIAN

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Republic. He set forth at length the outrages reported to have been committed on Americans and American property in Mexico, and asserted that the American diplomatic representatives in Mexico had been wholly powerless to make their demands for redress effective. He endorsed Forsyth's opinion that forceful intervention by the United States was necessary in order to protect American citizens and their property in Mexico. T h e case presented, however, is not merely a case of individual claims, although our just claims against Mexico have reached a very large amount; nor is it merely the case of protection to the lives and property of the few Americans who may still remain in Mexico, although the life and property of every American citizen ought to be sacredly protected in every quarter of the world; but it is a question which relates to the future as well as to the present and the past, and which involves, indirectly at least, the whole subject of our duty to Mexico as a neighboring State. The exercise of the power of the United States in that country to redress the wrongs and protect the rights of our own citizens is none the less to be desired because efficient and necessary aid may thus be rendered at the same time to restore peace and order to Mexico itself. In the accomplishment of this result the people of the United States must necessarily feel a deep and earnest interest. Mexico ought to be a rich and prosperous and powerful Republic. She possesses an extensive territory, a fertile soil, and an incalculable store of mineral wealth. She occupies an important position between the Gulf and the ocean for transit routes and for commerce. Is it possible that such a country as this can be given up to anarchy and ruin without an effort from any quarter for its rescue and its safety? Can the United States especially, which ought to share most largely in its commercial intercourse, allow their immediate neighbor thus to destroy itself and injure them? Y e t without support from some quarter it is impossible to perceive how Mexico can resume her position among nations and enter upon a career which promises any good results. T h e aid which she requires, and which the interests of all commercial countries require that she should have, it belongs to this Government to render, not only by virtue of our neighborhood to Mexico, along whose territory we have a continuous frontier of nearly a thousand miles, but by virtue also of our established policy, which is inconsistent with the intervention of any European power in the domestic concerns of that Republic.

The wrongs which the United States had suffered from Mexico, said Buchanan, were " before the world and must deeply impress every American citizen." A government which was either unable

88

T H E ISTHMIAN ROUTE

or unwilling to redress such wrongs was derelict to its highest duties. The difficulty, however, consisted in selecting and enforcing the remedy. The constitutional government at Vera Cruz, although well disposed to do justice to the United States, did not control the capital and the surrounding states. It was necessary to penetrate into the interior of Mexico before the offenders could be reached, and this could only be done by passing through the territory in the occupation of the constitutional government. The most acceptable and least difficult mode of accomplishing the object will be to act in concert with that Government. Their consent and their aid might, I believe, be obtained; but if not, our obligation to protect our own citizens in their just rights secured by treaty would not be the less imperative.

For these reasons Buchanan recommended the passage of a law authorizing him to employ a sufficient military force to enter Mexico " for the purpose of obtaining indemnity for the past and security for the future." Such an accession to the forces of the Juarez government would enable it soon to reach the City of Mexico and extend its power over the whole Republic. In that event there was no reason to doubt that " the just claims of our citizens would be satisfied and adequate redress obtained for the injuries inflicted upon them." While this course of action might be considered, at least indirectly, to be inconsistent with the settled policy of the United States not to interfere in the domestic concerns of foreign nations, he thought that the Mexican situation constituted an exception to the general rule. That country was " in a state of anarchy and confusion from which she has proved wholly unable to extricate herself." In her fate and in her fortune, in her power to establish and maintain a settled government, the United States had a far deeper interest, socially, commercially, and politically, than any other nation. Mexico was " now a wreck upon the ocean," drifting about as she was impelled by different factions. " As a good neighbor, shall we extend to her a helping hand to save her? If we do not, it would not be surprising should some other nation undertake the task,

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89

and thus force us to interfere at last under circumstances of increased difficulty for the maintenance of our established poli c y . " 5 7 But the slavery question in the United States occupied Congress at that time to the exclusion of everything else, and no action was taken on Buchanan's recommendation regarding forceful intervention in Mexico. In the meantime, M c L a n e , on instructions from Buchanan, had negotiated with the Juarez government a treaty granting to the United States perpetual rights of way across Tehuantepec and at two other places in Mexican territory, together with the right, under certain circumstances, of using military forces to protect persons and goods passing over these routes. T h e treaty also stipulated for certain commercial privileges, freedom of religious worship, and exemption from forced loans. In return for these concessions, the United States was to pay four million dollars, one-half of which was to be retained to pay claims of American citizens against Mexico. A t the same time, there was signed a convention " to enforce treaty stipulations," which in effect gave the United States the right to support the Juarez régime b y military measures in carrying out the terms of the other agreement. In transmitting this convention to Washington, M c L a n e stated that, while he had kept in mind the policy of the United States to avoid all intervention with the domestic administration of Mexico, he had " steadily insisted that it was the recognized duty of the government of the United States to intervene and interfere whenever its own security, or what was due to itself in the abstract or in virtue of treaty stipulations, required such intervention, as also to protect and defend the lives and property of citizens of the United States within the territory of Mexico." It had been difficult, he said, to induce the Juarez government to accept such an understanding, and he had only been able to do so by representing that the United States would sooner or later act without reference to any government in Mexico " in defence of its treaty rights and to protect its citizens." 58 " 08

Richardson, op. cit., Vol. V , pp. 564-568. McLane to Cass, No. 57, December 14, 1859, MS. Desp. Mex., Vol. 24.

90

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T h e above agreements were submitted by President Buchanan to the United States Senate, but, after a long debate, that body finally failed to ratify them. 58 T h i s was a great disappointment to M c L a n e , who thereupon handed in his resignation and advised the closing of the Legation at Vera Cruz. President Buchanan felt, however, that it would be inexpedient to withdraw the Legation at that time and thus leave American citizens without at least the protection of a diplomatic agent. Nor was he willing " to see with indifference that magnificent region become the prey of foreign ambition." 6 0 T h e intervention of foreign powers which began in 1861 and culminated in the establishment of Maximilian as emperor in 1864, and his defeat and death in 1867, need not be discussed here. T h e official purpose of the intervention was to obtain a settlement of outstanding claims of nationals of the intervening powers and to aid in the establishment of an orderly and peaceable government in Mexico. A s the intervention progressed, however, it became evident that the leaders of the French forces had other and larger ends in view, and this led to the withdrawal of the British and Spanish forces. While the government of the United States was strongly opposed to the intervention and to the establishment of the Maximilian régime in Mexico, it was too engrossed with its own Civil W a r to play much part in the events going on in that country. 6 9 The debates in the Senate on the agreements have never been made public, but, according to Rippy, the sectional issue in the United States was apparently the deciding factor, more than the right of the United States to intervene in Mexico. See Rippy, op. cit., p. 226. «0 Cass to McLane, No. 39, September, 20, i860, MS. Inst. Mex., Vol. 17.

C H A P T E R IV PRELUDE

TO

THE

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THE events of the years 1861 to 1867 had a distinctly beneficial effect upon the general tone of the diplomatic relations between the two countries. External controversies and ambitions had been largely forgotten in the bitter internal struggles that had occupied each nation during that period. At the close of these exhausting struggles, both governments were well disposed toward peace and reconstruction. The steady support given by the Union government in the United States to the Juarez government in Mexico throughout the years of the French intervention had increased the friendly feelings already existing between them. The territorial ambitions of the United States, which had led to so much fear and distrust in Mexico, had been centered chiefly in the southern slave-holding states, and had been closely associated with the slavery question itself. It was, therefore, natural for the Juarez government to regard the Union cause with sympathy and to see in the triumph of the northern states a good augury for the future independence of Mexico. When Edward Lee Plumb assumed his duties as Chargé d'Affaires in 1867, the outlook was perhaps more favorable for the friendly solution of outstanding difficulties than it had been at any time since the beginning of the relations of the two countries. 1 1 The general attitude of the Department of State at this time in regard to interposition by the United States on behalf of American citizens is indicated in the following extract from an instruction from Secretary Seward to the American Consul at Mexico C i t y :

" In the present unsettled condition of the Government of Mexico it is not deemed compatible with the interests of this government, nor conducive to the establishment of a friendly understanding with the Republic of Mexico, to press with importunity the pecuniary claims of citizens of the United States. The subject will, at a proper time, receive due consideration on the part of this government. It is the desire of the United States not to hinder but to favor the consolidation of republican institutions in Mexico. Importunity in presenting claims must tend to embarrass her efforts in that direction.

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T h e most important outstanding issue between the two countries was the settlement of the claims that had been accumulating in the twenty years of almost uninterrupted disorder in Mexico since the Treaty of 1848. In the existing atmosphere of friendly feelings, it was not difficult for the two governments to agree upon the submission of these claims to arbitration. This was the more easily effected because the government of the United States did not, in this instance, seek to tie up the settlement with the acquisition of further territory from Mexico. It was also aided by the fact that Mexico had a large number of claims to present against the United States for injuries alleged to have been suffered by Mexican citizens as a result of Indian depredations, filibustering expeditions from the United States, pillaging by American troops and various acts during the American Civil War. On July 4, 1868, the two governments concluded a convention for the adjustment of all claims of the citizens of either country against the government of the other. 2 This convention was drafted at Washington and followed more or less closely the claims convention of 1853 between the United States and Great Britain. It provided that " all claims on the part of corporations, companies, or private individuals, citizens of either country, upon the government of the other, arising from injuries to their persons or property by authorities of the respective countries," which had been presented to either government for its interposition with the other since the signature of the Treaty of Guadalupe Hidalgo and which remained unsettled, together with such other claims as might be presented within the time specified in the convention, should be referred to two commissioners, one to be appointed by each country. These Commissioners were to meet at Washington, and were to make a declaration that they would " impartially and carefully examine and decide, to the best of Y o u will likewise be careful not to t a k e part in a n y of the m a n y p r o j e c t s and speculations, n o w said to be maturing in M e x i c o ; n o r will y o u present nor urge these speculations upon the government, in a n y case, unless directly and especially instructed by this D e p a r t m e n t . "

( S e w a r d to O t t e r b u r g , N o . 10, A u g u s t i 8 , 1867,

M S . Inst. Mex., V o l . 17. 2

See M o o r e , International

Arbitrations,

of the proceedings of this commission.

V o l . II, pp. 1292-1358, f o r a n account

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93

their j u d g m e n t , and a c c o r d i n g to public law, justice, and e q u i t y , without fear, f a v o r or affection to their own c o u n t r y , " upon the claims laid b e f o r e them on the part of the t w o governments.

They

were to name a third person to act as an umpire in a n y case on w h i c h they differed in opinion. 3

T h e y were to act upon such

evidence or information as should be furnished b y or on behalf of their respective governments.

E a c h government was to be

permitted to appoint an agent to present and support the claims on its behalf.

N o claim arising out of a transaction of a date

prior to F e b r u a r y

2, 1848

(the date of the signature of

T r e a t y of G u a d a l u p e H i d a l g o ) , should be admissible 2).

E v e r y claim had to be presented to the

the

(Article

Commissioners

within eight months ( w i t h certain exceptions) and the Commissioners were bound to examine and decide every claim within two y e a r s and six months ( A r t i c l e 3 ) .

T h e two nations agreed

to consider the result of the proceedings as a full, perfect, and final settlement of e v e r y claim upon either government arising out of any transaction of a date prior to the exchange of ratifications of the convention, whether or not such claims had been presented to the C o m m i s s i o n (Article 5 ) . T h e claims filed with this Commission far exceeded, both in number and amount, those filed before the two previous commissions.

T h e number of A m e r i c a n claims filed against M e x i c o

was 1,017 and of M e x i c a n claims against the United States 998, making a total of 2,015 claims received b y the Commission.

The

great m a j o r i t y of these claims were first brought forward b y the claimants after the claims convention had been signed.

Prior to

that date the number of claims on file in the Department of State was only 330.

N o figures are available as to the proportion of the

Mexican claims that had been filed with the M e x i c a n government prior to the negotiation of the convention, but the

American

Agent, in the course of the proceedings, asserted that not one o u t of a hundred of these claims had been made the subject of diplomatic representation b y the M e x i c a n government. 4 3

Article I, Claims C o n v e n t i o n , 1868, M a l l o y , op. cit., V o l . i , p. 1128 et seq.

4

T h e f a c t that so m a n y claims came to light after the commission h a d been

established w a s the basis of m a n y inferences d r a w n b y the opposing agents t h a t

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Of the total claims presented, awards were made in 1 8 6 cases in favor of American claimants against Mexico and in 1 6 7 cases in favor of Mexican claimants against the United States.

The

number of claims dismissed or disallowed was the same for each side—831.

T h e Commissioners were able to dispose of 1,488

cases b y themselves and the Umpire decided 4 9 5 .

It is not to be

concluded from these figures, however, that the members of the 1868 Commission found it easy to reach agreement on their decisions.

In his final report, the Agent of the United States said

that " disagreement between the Commissioners was the rule and agreement the exception " and that in a large proportion of the contested cases the decision of the Umpire had to be invoked. 5 A s a matter of fact, the national Commissioners were able to agree on making awards in only 205 cases, the remaining 1 , 2 8 3 cases disposed of by them without help of the Umpire being dismissed or disallowed for lack of evidence. T h e aggregate amount of the claims of American citizens against Mexico, including interest, was $ 4 7 0 , 1 2 6 , 6 1 3 . 4 0 . T h e total amount awarded on these claims was $ 4 , 1 2 5 , 6 2 2 . 2 0 , or approximately eight-tenths of one per cent.

T h e same totals for Mexi-

the claims of the other side were fraudulent. See for example the argument of the American Agent in Docket No. 633, Mexico v. the United States. (Walker Expedition, Bagdad, Piedras Negras, etc.) File A. Archives, State Department. Palacio, Mexican Commissioner, admitted that the majority of Mexican claimants had been very slow in coming forward with their claims and asserted that Mexican citizens could not imagine that their claims would be considered by the United States " merely for the sake of justice." The war of 1846 had been to them an " incontestable demonstration that there was no probability that their rights would prevail against the United States." The idea of presenting international claims, he said, w a s entirely new to the ignorant masses of Mexico, and for that reason less than half of the claims that could have been presented were actually filed with the Commission. The claimants who had come forward were chiefly those who had been incited and almost compelled to do so by foreign speculators and claims agents. (Marcial Perez v. U. S., Docket No. 563.) And Zamacona, Mexican C o m missioner, stated that in Mexico there was a " total want of practice " with regard to international claims and also an extreme apathy, as was sometimes the case in weak countries. Mexicans had given repeated evidence of resignation in the face of outrages committed on them both by their own people and by foreigners. " T h e y never expected justice to be done them outside their own country." Hence their remissness in matters of diplomatic claims. (Capistran v. U. S., Docket N o . 505.) 5

Moore, International

Arbitrations,

Vol. I I , p. 1299.

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can claims against the United States were $86,661,891.15 claimed and $150,498.41 awarded, or less than two-tenths of one per cent. This very large differential between the amount claimed and the amount awarded has often been advanced as proof that in the great majority of cases in which the United States has interposed on behalf of its citizens in Mexico, the complaints were really without foundation. This conclusion, however, does not necessarily follow. In the first place, it has already been noted that only about one-third of the American claims received by the Commission had previously been presented to the Department of State for diplomatic interposition, and by no means all of these had been made the subject of representation. In the second place, the terms of the Convention of 1868 were such as to induce both governments to file with the Commission every complaint received within the prescribed period, without attempting to pass upon its merits. Article 5 of the convention provided that every claim arising out of any transaction of a date prior to its ratification, whether brought to the attention of the Commission or not, should be considered as finally settled, barred, and thenceforth inadmissible. In view of this provision and of the comparatively short time allowed for presenting the claims to the Commission, the Department of State decided to present every complaint on its files that might conceivably be the basis of a claim. It was of course realized that, by this process, a very large number of claims would be included that would prove on examination to be wholly without merit, but the Department of State did not wish to run the risk of having valid claims barred forever without a hearing.6 In the third place, a large number of the claims were for damages sustained during revolutionary outbreaks, and it was found extremely difficult in such cases to obtain suitable evidence 6 On February 23, 1870, the Department issued a notice that it would refer all claims received within the prescribed period to the Commission without preliminary examination of their merits. Such reference, the notice warned, was not to be construed as the expression of any opinion upon the merits of the claims whatever. The responsibility for deciding questions of fact or law rested with the Commission, and the Department wished to impose no obstacle to the hearing of any claim. See Moore, International Arbitrations, Vol. II, p. 1 3 1 3 .

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of the facts of the alleged injuries. It has already been noted that an unusually large percentage of the claims acted upon by the Commission were dismissed for lack of evidence.7 The Convention of 1868 specifically provided that the commissioners were to decide the cases submitted to them " according to public law, justice, and equity, without fear, favor or affection to their own country." This phraseology left little doubt that their functions were to be judicial rather than diplomatic. Nevertheless, the records reveal that the members of the Commission held conflicting views as to the nature of their duties. In one case the Agent of the United States took the position that the Commissioners were " not a court invested with and exercising judicial functions, but a board of arbitrators, appointed by their respective Governments, under the authority of a treaty to examine and determine certain claims which the Governments have agreed to refer to them, and in regard to which, it may be supposed, they entertain different opinions." 8 Umpire Francis Lieber expressed doubt in one case as to whether his authority was limited by the convention " to a decision according to law and equity of those points in which the parties differ " or whether it also comprehended " conciliatory arbitraments." He acted upon the latter view, but declared that if both of the Commissioners should disagree with him he would change his decision.9 In another case, Commissioner Wadsworth argued that the national Commissioners were not representatives of their respective countries, but impartial arbiters. Their authority, he said, was derived from both governments and they were obliged to exercise it for the benefit of both. He considered himself no more bound by the official acts or municipal regulations of the United States than by those of Mexico. 10 Umpire Thornton (who succeeded Lieber) appears, 7 The even greater differential between the amount claimed by Mexican citizens against the United States and the amount awarded to them is accounted f o r mainly by the fact that most of these claims arose out of Indian depredations, and all such claims were disallowed on the ground that, by the Gadsden T r e a t y , the United States had been released from all liability therefor. 8 9 10

Hodge v . Mexico, Docket No. 80, original evidence. Schaben v. Mexico, Docket No. 100. The decision was allowed to stand. MacKinney v . Mexico, Docket N o . 106.

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however, to have considered the Commissioners as representatives of their respective governments, rather than as impartial arbiters. 1 1 T h e r e was also a difference of opinion as to whether the claims were those of private citizens or whether the governments were parties to them. Commissioner Wadsworth upheld the Vattel doctrine that the claims were government claims and that the awards went to the governments on the theory that " t h e y had been injured b y the violation of the property or persons of their subjects." 12 Commissioner Zamacona, on the other hand, insisted that the governments had merely transmitted the claims of their citizens to the Commission without becoming a party to them or formally adopting them. In support of this view he pointed to the announced policy of the Department of State in transmitting all claims without examination and without assuming any responsibility for their merits. 13 T h e claims of American citizens against Mexico fell mainly into the following categories: injuries to person or property during revolutionary outbreaks in Mexico; mistreatment by Mexican authorities of Americans suspected of filibustering; contracts for arms and supplies furnished to the Mexican government during the French intervention; customs cases; forced loans; conscription of employees; expulsion cases; damages by Mexican troops under command of officers. T h e claims of Mexican citizens against the United States arose chiefly out of Indian depredations. Other Mexican claims were based on damages inflicted by filibustering expeditions from the United States; seizure and destruction of property by American troops along the Mexican border and during withdrawal of American forces after the Mexican W a r ; claims for land grants within the California territory. T h e majority of American claims on which awards were made For example, in the case of Pradel v. Mexico, Docket No. 815, Thornton accepted an admission by the Mexican Commissioner as conclusive against his government, although not established by evidence. See also Walker and Crossen v . Mexico, Docket No. 863. 11

12 13

Tomas Marin v. U . S., Docket No. 731. E. A. Mexia v . U. S., Docket No. 635.

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were for property losses in Mexico. Subsequently it was discovered that two of these claims, those of L a Abra Silver Mining Company and Benjamin Weil were fraudulent, and the United States eventually refunded the awards to the Mexican government. 14 T h e aggregate of these two awards in United States currency was $1,152,046.94, representing more than onefourth of the total amount awarded on American claims. Subtracting these awards from the total reduces the percentage of American awards to approximately six-tenths of one per cent of the amounts claimed. T h e Commission failed to complete its labors within the time limit prescribed by the convention and its life was extended by three supplementary agreements to January 31, 1876, with a further period allowed to the Umpire for rendering his decisions. 15 These extensions of time were made necessary largely by the practice of the two governments in presenting to the Commission every claim they received or could find in their files.16 Another reason for the delay was the tendency of the two national Commissioners to disagree on the merits of most claims heard by them, making necessary a reference to the Umpire and a second hearing on the proof and arguments. Still another reason is found in the fact that many of the claims were old, and evidence upon them was extremely difficult to get. In fact, the major problem in most cases before the Commission was the lack of evidence. While the arbitration under the 1868 convention was proceed14

F o r an account of the subsequent proceedings in these t w o cases, see M o o r e ,

International 15

Arbitrations,

V o l . I I , pp. 1324-1348.

T h e supplementary agreements will be f o u n d in M a l l o y , op. cit., V o l . I ,

1133-1140. 16

Commissioner W a d s w o r t h

complained

in one case t h a t the M e x i c a n

De-

partment of Foreign A f f a i r s had " emptied the contents of its waste baskets on the Commission " and that the D e p a r t m e n t of S t a t e of the U n i t e d States h a d " sent every scrap of paper with M e x i c o marked on it to the same reservoir of defunct claims."

(Perez v . U. S., D o c k e t N o . 79.)

In one instance a letter f r o m British

subjects making a claim against the United States for something that had occurred in M e x i c o w a s presented by error to the C o m m i s s i o n as a claim of American citizens against Mexico.

T h i s ease s h o w e d , said W a d s w o r t h , " h o w completely t h e d u s t y

records of State D e p a r t m e n t s have been emptied on this Commission, and h o w its labors

have

been

D o c k e t N o . 205.)

greatly

and" unnecessarily

increased."

(Laurent

v.

Mexico,

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ing, the Juarez administration was endeavoring to establish order in Mexico. For a time after the defeat of Maximilian, the Liberal government had shown not only the inclination but the ability to extend protection to foreigners in Mexico and to adjust disputes as they arose. When the American Minister found it necessary to complain of the actions of local authorities, his protests were usually heeded, and his requests were complied with wherever possible. 17 This friendly attitude of the party in power did not, however, extend throughout the Mexican people at large. The intervention of European powers had, if anything, increased the hatred and distrust of foreigners among the lower class of the Mexican population, and instances of attacks on foreigners were all too common. In M a y , 1868, Plumb (American Minister at Mexico City) reported to Seward " with disappointment and regret," that, whatever might be the official action of the party in power, or however enlightened and friendly the personal sentiments of Juarez and his cabinet, there was a feeling in the country toward foreigners in general which was the cause of the perpetration of outrages against them and which afforded grounds of serious apprehension as to the future. 18 Plumb was followed at Mexico City in 1869 by General Rosecrans. Like many of his predecessors, the General reached the conclusion, very soon after his arrival, that American intervention in Mexico and the assumption of some form of political 17 See, for example, Plumb to Seward, No. 72, January 28, 1868, M S . Desp. Mex., Vol. 32, also Seward to Rosecrans, No. 18, January 9, 1869, M S . Inst. Mex., Vol. 18. 18 Plumb to Seward, No. 1 3 1 , M a y 20, 1868, M S . Desp. Mex., Vol. 33. This hostility was reflected in the steps taken by the Mexican Congress to exclude all foreigners from participation in the public works planned by the Juarez government. See, for example, Plumb to Seward, April 21, 1868, MS. Desp. Mex., Vol. 32, reporting opposition in the Mexican Congress to the revalidation of a concession held by a foreign company for the construction of a railroad from Vera Cruz to Mexico C i t y ; also Plumb to Seward, October 2, 1868, MS. Desp. Mex., Vol. 34, reporting the passage of a law by the Mexican Congress authorizing the construction of a wagon road between Durango and Mazatlan but restricting the work to Mexican engineers; also Plumb to Seward, October 22, 1868, ibid., enclosing a Congressional Report on a bill excluding foreigners from participation in a concession for navigation of lakes in Mexico.

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control over the country was inevitable, and that such an event would be in fact welcomed by the Mexican people at large. He reported that the existing government was " weak, vacillating, corrupt," and secretly opposed to the introduction into Mexico of American commerce, industry, and enterprise. It had no intention of opening the country to immigration from the United States any further than circumstances and public sentiment compelled it. T h e great natural resources of Mexico and its magnificent climate should, with a just government and an enlightened liberal policy, " become thronged with an intelligent, happy and prosperous population in much less time than it required to people the Mississippi Valley." But not a spark of enthusiasm, hope, or confidence could he inspire in Mr. Lerdo (Mexican Minister of Foreign Affairs) on the subject. Rosecrans believed that the entire foreign element in Mexico, the chief capitalists and large land owners, the Imperialists, and the " conscientious Catholics " would be glad to have American intervention " in any way that would place the rule in their hands without bloodshed, robbery and social overturn." Furthermore, the opposition party would itself " lend an ear to American advice, and if our guidance and support could be accompanied by public improvements and emigration," they would do whatever the United States might require. But prompt action was required to strengthen and consolidate the elements favorable to American intervention, and to this end he requested " both instructions and some pecuniary means." 19 Rosecrans rejected the notion that the United States could allow the Mexican people to continue in such a state of political disorder as to render the development of their resources difficult or impossible. Either they must themselves establish a government 1 9 Rosecrans to Seward, No. 35, February 28, 1869, MS. Desp. Mex., Vol. 35. See also Rosecrans' despatch of March 3, 1869, to Seward (MS. Desp. Mex., Vol. 35) in which he concludes with the following statement:

" Should the Department find it desirable I shall be pleased to enter into such detail to show how a country composed of ' Seven and a half millions of unhappy people and 100,000 rascals ' could become a powerful wealthy and very friendly neighbor, whose entrance into our family might become unobjectionable, provided prompt and speedy action be taken."

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which would make such exploitation profitable, or else the United States must step in and enforce order. It was necessary, he said, for his government to make an immediate choice among the following courses of action: ist. W e must leave this country to disintegrate with all the attendant sufferings of the inhabitants, and the loss, demoralization, and danger to our interests contingent

thereon

from

revolution,

foreign

interference,

vice,

etc., etc. 2nd. W e must attempt to combine the elements to secure a cabinet with M r . Juarez at the head which has the will to adopt necessary measures to enable the Government of Mexico to fulfil the duties required of Government among civilized nations and place Mexico in the career of progress and intercourse with the rest of the world, or 3rd. W e must aid the true " Constitutionalistas " to establish a government founded on the constitution of 1857 and guarantee it in a policy to be agreed upon, which will secure the ends of government and of progress for both countries, or 4th. W e must conquer and occupy the country, an alternative which I cannot contemplate without repugnance and apprehension, because nations are judged and punished in this world.

I do not wish ours to do any wrong. 2 0

Rosecrans assumed that the first alternative was out of the question and that the second and third would be preferred in their order, whether " continued autonomy or final absorption by the United States be considered." He accordingly proposed that American capital should be employed in the construction of various railroads in Mexico, and that " these works should be so undertaken and executed as to give us the prestige of a success only seen among Americans." T h e effects of such a move " would be at once to open the country and peacefully win the palm, of leadership for our people, while it would render more easy guarantees of stability and justice, so necessary to inspire this people with confidence." As a more direct measure, he proposed that American capitalists should buy up the foreign and domestic public debt of Mexico and advance the necessary means to the Mexican government " to get organized under our auspices and guarantee " on the understanding that the capitalists would be secured by the United States government in the payment of a certain per20

Rosecrans to Fish, No. 48, April 10, 1869, MS. Desp. Mex., Vol. 35.

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centage of the nominal value of the debt. 21 B u t Rosecrans' attitude toward the Mexican situation was out of harmony with the views and interests of his government at that time, and his proposals met with little sympathy at Washington. In M a y , 1869, he was replaced by Thomas Nelson. In spite of his predecessor's gloomy reports, Nelson commenced his mission with a distinctly friendly attitude toward the Juarez administration and with confidence in the latter's ability to bring order to the country. Shortly after his arrival in Mexico, he wrote to Fish that the Mexican government was in complete harmony and sympathy with the government of the United States and disposed to yield to any reasonable suggestion that the latter might m a k e . " T o be sure, insurrectionary movements were frequent, and he was compelled to admit that perhaps there had never been greater insecurity of person and property in Mexico than at that time.- 3 But he believed that the United States could do most to correct this situation by continuing its wise policy of giving moral aid and countenance to the existing Liberal government.- 4 Such protests as he found it necessary to make in regard to the treatment of American citizens were mild and conciliatory. Nelson's general attitude on questions of diplomatic protection shows the effect of the changed practical situation upon the disposition of legal questions. As a matter of fact, the Juarez government did not succeed very well in establishing peace and order in Mexico. Revolutionary outbreaks continued as before, and Americans in Mexico were subject to losses and injuries in much the same ratio as under previous administrations. Under existing 2 1 Rosecrans to Fish, ibid. T o the Mexican government and to the opposition party in Mexico, Rosecrans offered the following alternatives:

" 1st. T o continue in the present progress to disintegration, anarchy and final absorption or " 2nd. T o have a quarrel picked with you, or a war of conquest forced on you and be annexed to the United States or " 3rd. T o adopt a system of railroad construction, emigration, assimilation and reciprocity of trade, and shake hands truly with your best friends, the American people." (Rosecrans to Fish, No. 58, M a y 10, 1868, MS. Desp. Mex., Vol. 35.) 2 2 Nelson to Fish, October 28, 1869, MS. Desp. Mex., Vol. 37. 2 3 Nelson to Fish, No. 193, February 27, 1870, M S . Desp. Mex., V o l . 39. 2 4 Nelson to Fish, No. 311, November 4, 1870, M S . Desp. Mex., Vol. 41.

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conditions, however, their complaints were regarded much less seriously than on previous occasions. The absence of territorial ambitions on the part of the administration in power in the United States undoubtedly was a prime factor in this change of attitude. Where such ambitions had existed in the past, they had inevitably entered into the determination of legal issues and had given greater significance to isolated cases of mistreatment. Where, on the other hand, no inducement existed for the accumulation of complaints against the Mexican government, individual cases of injuries to American citizens could be regarded more calmly. Again, while Juarez did not actually succeed in establishing conditions favorable to international trade and intercourse, there could be little doubt of his earnest efforts to do so.2'' While he was in power, there was always at least the hope that he might succeed in this respect. Under these conditions, it was natural to regard individual cases of mistreatment more as unfortunate lapses than as indications of a general unwillingness or inability to correct conditions. Against this changed background, various instances of injuries to Americans in Mexico, which, under prior conditions, would have been regarded as serious breaches of international obligations, were not taken up by the American Legation. At the same time, with the removal of the specter of territorial aggrandizement, the Mexican government was able to regard diplomatic interposition by the United States with much less fear and distrust than under previous conditions. During the four years he remained at Mexico City, Nelson continued to conduct his correspondence with the Mexican government on the subject of claims and the protection of Americans in a cordial tone and without demands or threats of drastic action. Just before he retired, however, an incident occurred which resulted in a spirited controversy between him and the Mexican Foreign Minister. It will be recalled that under the Mexican Constitution of 21 Sec. for example, the speech of M r . Mariscal before the Mexican Congress, November 17, 1 S 7 1 , on the necessity of establishing conditions of security for foreign enterprises in Mexico. Synopsis enclosed with Nelson to Fish, N o . 478, November 29, 1 8 7 1 , M S . Desp. Mex., Vol. 44.

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1857 a n d the Reform Law of July 13, 1859, religious orders bad been abolished in Mexico. These orders had, in fact, continued their existence during the French intervention, and after the reestablishment of the Republic the authorities had tolerated them, although the law abolishing them was still on the statute books. In M a y , 1873, the Lerdo government decided to make an effort to enforce the law, and it accordingly issued orders for the breaking up of a considerable number of orders and the arrest of about twenty priests. Among the latter were Thomas M c C r e a l y , a naturalized American citizen, and Angelo Maria Lilla, who had declared his intention of becoming an American citizen but had not taken out final papers. Both of these priests appealed to the American Legation for protection. T h e y denied that they had violated the laws of Mexico and demanded a judicial trial. Nelson's sympathies were aroused by the unfortunate situation of the two priests, and he promptly took up their case with the Mexican Foreign Office without awaiting instructions from the Department of State. Lafragua (the Mexican Minister of Foreign Affairs) declined to take any action in the matter since the President had, in the meantime, ordered the expulsion of the priests from Mexico as pernicious foreigners. Thereupon Nelson wrote to Lafragua that he was forced to declare in the most explicit and solemn manner that the American government could never consent to the application to its citizens of the supposed executive faculty of expulsion without form of trial. H e protested against the execution of an act " so irreconcilable with the plainest principles of natural justice and international comity," and declared that he would hold the Mexican government responsible for " the very serious consequences which would immediately issue." 20 There followed a long and spirited correspondence relating to the right of a government to expel foreigners without trial, and also relating to the effect of the failure of foreigners to comply with the Mexican law of matriculation." 26

May

N e l s o n t o L a f r a g u a , M a y 26, 1 8 7 3 . e n c l o s u r e w i t h N e l s o n t o F i s h , N o . 740, 3 1 , 1 8 7 3 , M S . D e s p . M e x . , V o l . 48.

27

T h i s s u b j e c t is d i s c u s s e d b e l o w in t h e c h a p t e r o n L e g i s l a t i v e L i m i t a t i o n s

D i p l o m a t i c P r o t e c t i o n , infra,

pp. 168-169,

179-144.

on

P R E L U D E TO T H E DIAZ ERA

105

But before the dispute was settled, Nelson's resignation took effect, and he was replaced as Minister by John YV. Foster. Foster continued the correspondence and endeavored to induce the Mexican government to drop its intention to expel McCrealy and Lilla without trial, but President Lerdo held firmly to his decision. Foster thereupon filed a formal protest against the proposed action. 28 In transmitting a copy of this protest to the Secretary of State, Foster declared that to acknowledge the precedent " would place the liberty of every American citizen resident in this country, in the absolute power of the President, without an opportunity to establish his innocence of any charge which public or private hostility or malice might bring against him, thereby rendering his residence in Mexico entirely insecure and uncertain." 20 Secretary Fish held a contrary opinion on the matter of expulsion from that assumed by Nelson and Foster. He instructed Foster that, since the Supreme Court of Mexico had recognized the right of the President to exercise the power of expulsion at his discretion, the legality of the proceeding could not be successfully controverted. The same power, wrote Fish, existed in every country, and there was often a necessity for its exercise in time of foreign or civil war. All foreigners resorting to Mexico must expect to be liable to the exercise of the power even in time of peace. 30 When Foster took up his duties at Mexico City in 1873, general conditions were not so promising as they had been a few years previously. Juarez had died in 1872 and his successor, Lerdo de Tejada, did not inspire the same degree of confidence. Porfirio Diaz had already appeared on the scene and had conducted an unsuccessful revolution in 1 8 7 1 - 1 8 7 2 . Lerdo's attempt to enforce the Reform Law had aroused the Indians in the north to revolt. The " Free Zone " established by the Mexican government along a portion of its northern frontier had resulted in the loss of 23

Foster to L a f r a g u a , October 3, 1 8 7 3 , enclosure with Foster to Fish, No. 58,

October i i , 1 8 7 3 , M S . Desp. Mex., Vol. 49. 29

Foster to Fish, N o . 59, October 1 3 , 1 8 7 3 , M S . Desp. Mex., Vol. 49.

30

Fish to Foster, N o . 3 7 , October 1 7 , 1 8 7 3 , M S . Inst. Mex., Vol. 19.

io6

PRELUDE TO THE DIAZ ERA

considerable revenue to the United States and had developed into an irritating source of controversy. 31 Most important of all, the policing of the frontier had again become a serious problem. Indian raids and cattle-stealing expeditions from Mexico into Texas and other southern states had increased to an alarming extent, and the Mexican border officials were admittedly powerless to control the situation. Confidence in the ability of the Liberal Party to establish conditions of order and security in Mexico favorable to trade and intercourse was gradually diminishing. Foster was well disposed toward maintaining cordial relations with the Mexican government, but the trend of events made this increasingly difficult. As the troubles of the Lerdo régime increased, its attitude toward diplomatic interposition by the American government became less friendly. A tone of irritation crept into the correspondence between the Mexican Department of Foreign Affairs and the Legation regarding complaints of American citizens. Thus, in rejecting two claims presented by Foster for damages caused by rebels, Lafragua asserted that Foster's allegations were based purely on the statements of the interested parties, which, he regretted to say, were frequently considered by the Legation as sufficient proof to justify any demand, when in no country of the world was a fact deemed to be proved by the mere statement of the interested party. 32 This charge brought an emphatic denial from Foster, who asserted that claims were only presented by the Legation on instructions from the Department of State and upon substantial evidence. He had indulged the hope, he said, that the conduct of both his predecessor and himself, and the uniformly friendly attitude of his government toward the existing régime in Mexico, had merited a very different attitude on the latter's part. H a d he yielded to the representations of his countrymen and allowed himself to become the instrument to present their complaints and demands for redress to the Mexican government, the record of the 31

See R i p p y , op. cit., pp. 282-285.

3-

L a f r a g u a to Foster, December 6, 1873, enclosure w i t h Foster to Fish, N o . 83,

December 13, 1873, M S . Desp. M e x . , V o l . 5°-

PRELUDE T O THE DIAZ ERA

107

Legation would have been far different from what it was. Almost daily the Legation was solicited to intervene in behalf of Americans on account of wrongs alleged to have been suffered at the hands of Mexican officials and citizens, for which, it was insisted, no adequate redress could be obtained from the local courts. These complaints included " alleged acts of extortion, fraud and injustice by high officers of the Federal and State governments, arbitrary and cruel conduct on the part of military commanders, wilful and shameful denial of justice by the courts, murders, assaults, robberies, plundering and violence committed by the inhabitants " ; but his uniform practice had been to advise all parties to seek redress through the channels provided by the laws of the country. He had not in a single instance presented a reclamation or demand to the Mexican government which had not been first examined and approved by his government. He nevertheless conceived it to be his duty to receive the complaints of his countrymen in Mexico, and, in his discretion, to make those complaints known to the Mexican government. In doing so he expected to be guided by a spirit of cordial friendship for the Mexican government and not to subject himself and his government to charges of adopting a practice contrary to that of all other countries of the world, as L a f r a g u a had alleged. 33 33

Foster to L a f r a g u a , D e c e m b e r 24, 1873, enclosure with Foster to Fish, N o .

105, F e b r u a r y

10, 1874, M S . Desp. M e i . , V o l . 50.

Foster's notes, L a f r a g u a w a s quick a lack of ability in the M e x i c a n

In spite of the cordial tone of

to t a k e offense at a n y expressions implying

Foreign

Office.

H e w a s particularly

irritated

b y the implication in one note t h a t he had fallen into " grave errors " in his position on one complaint

filed b y

Foster.

Lafragua

complained

of this expression

the D e p a r t m e n t of S t a t e t h r o u g h the M e x i c a n Legation at W a s h i n g t o n .

to

Secre-

t a r y Fish w r o t e to Foster t h a t , while the expressions used in the note complained of

would

not

have

been

noticed

anywhere

Mexico,"

else, they

which

were

" might

known

be supposed

to be

to

wound

official sensibilities at

uncommonly

acute.

He added that as the existing G o v e r n m e n t of Mexico had inspired greater

hopes for its stability and f o r its efficiency in the right direction than a n y w h i c h h a d recently existed there, it w a s good policy f o r the United States to encourage it, and to avoid doing or saying a n y t h i n g w h i c h might have a contrary (Fish to Foster, J a n u a r y 16, 1874, M S . Inst. M e x . , Vol. 19.)

tendency.

In another instruction,

Fish remarked to Foster that L a f r a g u a appeared to show a captious and petulant spirit unwarranted by the occasion.

It might, h o w e v e r , be charitable, t h o u g h t Fish,

to ascribe this to the difficulties of the administration in M e x i c o , " and to consciousness t h a t acts of violence t o w a r d s foreigners, even if confessed,

the

cannot

io8

PRELUDE TO THE DIAZ ERA

As the control of the Lerdo régime over the country weakened, disorder increased and attacks upon Americans and American property became more frequent. There was apparent at the same time a growing disposition among the local officials not to punish the perpetrators of such acts when they were Mexican citizens. At first, Foster refrained from bringing these cases to the attention of the Mexican government, deeming it best " not to question in advance the zeal or disposition of the local authorities to administer strict and speedy punishment upon the perpetrators." But the report of two murders of a particularly violent character finally caused him to enter a sharp protest. He pointed out that, during his short term of office in Mexico, he had received official reports of thirteen murders of American citizens, some of them " of the most horrid character and revolting to our common civilization." He had also received information of several cases of brutal assaults and personal outrages upon Americans not resulting in death. Although these cases had been brought to the attention of the local authorities, he regretted to state that he was not aware that one single punishment had been inflicted in all of them. He, therefore, with sincere regret and under the most urgent conviction of the duty he owed to the dignity and honor of his government and the safety of its citizens in Mexico, earnestly remonstrated against the apparent indifference and negligence of the local authorities in punishing crimes and injuries inflicted upon Americans. He called upon the Mexican government to use its influence and authority in an effective manner to protect the lives of Americans and to punish those who mistreated them. 34 And to Secretary Fish, Foster wrote that he was much impressed with the necessity of determined action on the part of the United States government to enforce the protection of its citizens. 35 In reply to this protest, L a f r a g u a asserted that the Mexican police and judicial authorities had completely fulfilled their duties receive reparation through the usual courses."

Fish to Foster, N o . 83, M a r c h

io,

1874, M S . Inst. M e x . , V o l . 19. 34

Foster to L a f r a g u a , A u g u s t 1 1 , 1874, enclosure with Foster t o F i s h , N o . 173,

August 22, 1874, M S . Dcsp. M e x . , V o l . 52. 35

Foster to Fish, August 23, 1874, M S . D e s p . M e x . , V o l . 52.

PRELUDE TO T H E DIAZ

ERA

in the cases complained of, notwithstanding inevitable delays in some instances.

A t the same time, the government had given

urgent orders that the perpetrators of the crimes against Americans should be prosecuted with all the rigor of the law. 3 8

Further

protests by Foster brought forth the usual defense that the affairs complained of were in the hands of the judicial authorities, and that, according to the Mexican Constitution, the Executive Department could take no action beyond merely requesting that the procedure in such cases be expedited. 37 T h e growing irritation between the two governments over the subject of diplomatic protection was stimulated at this time by the critical state of affairs along the border.

The federal troops

that had been stationed along the southwestern frontier by the American government to prevent cattle raids from the Mexican side had been unsuccessful in coping with the situation, and the local population of T e x a s was beginning to take things into its own hands.

Several times in the years 1 8 7 3 to 1 8 7 5 , Texas rang-

ers pursued raiding parties across the border and attacked them on the Mexican side.

In two or three instances, these expeditions

were supported by federal troops of the United States.

This

greatly aroused the Mexican population of the border states, and there was a general revival of the ancient fear of conquest by the " colossus of the north."

T h e Grant administration at Washing-

ton was not believed to harbor any territorial ambitions, but that administration was drawing to a close and it was feared in Mexico that the incoming régime might have different ideas on the subject.

T h e strength of popular feeling in Mexico on the subject

30 Lafragua to Foster, August 24, 1874, enclosure with Foster to Fish, No. 176, September 2, 1874, M S . Desp. Mex., Vol. 52. 3T It appears, however, that, even under the administration of the Liberal Reform P a r t y , this asserted independence of the judiciary existed more in theory than in fact. Thus, in 1875, an acrimonious dispute arose between the Mexican Supreme Court and the Executive Department over the power to appoint a minor clerk of the District Court. The Supreme Court decided against the Executive on the question, but when the latter refused to comply with the decision, the Court was forced to admit its lack of power to enforce it. The Court accordingly declared that it yielded to the superior force of the Executive, and left its decision unexecuted. (Foster to Fish, N o . 334, September 23, 1875, M S . Desp. Mex., Vol. 55.)

PRELUDE TO THE DIAZ ERA

no

was sufficient to induce the Lerdo government to assume an increasingly hostile attitude toward the diplomatic demands of the American government in general. Lerdo's power was weakening, however, and in 1876, Porfirio Diaz started another revolution. In gaining support for his cause, he likewise made use of the border situation and the growing fear of territorial conquest by the United States. In a few months he succeeded in driving Lerdo from the country and shortly afterward assumed the executive power. T h e Grant administration, which was then drawing to a close, was apparently disposed to grant recognition to Diaz as soon as de facto control over the country had been established. Secretary Fish authorized Foster to use his discretion in recognizing the Diaz government. The only point at issue referred to by Fish in this connection was a decree promulgated by Diaz in 1876 before he had finally obtained control of the government, purporting to nullify certain contracts entered into by the Lerdo régime. 38 On this point Fish instructed Foster to express the regret which the United States would feel if the measure were made effective against Americans having lawful contracts with the Lerdo government, but Foster was instructed at the same time not to regard the question as an international one. N o other questions were brought up by Fish at that time in regard to the recognition of Diaz. 39 Foster decided to defer recognition until after elections had been held in accordance with the Mexican Constitution. In the meantime, he protested against the enforcement of the D i a z decree nullifying contracts entered into by the Lerdo government. He informed Vallarta (Minister of Foreign Affairs of the D i a z régime) that the United States would not acquiesce in the 38

Army,

T h i s d e c r e c w a s issued b y September

26,

1876,

D i a z as G e n e r a l - i n - C h i e f

translation

enclosed

with

of t h e

Foster

to

Constitutional Fish,

No.

472,

D e c e m b e r 8, 1 8 7 6 , M S . D e s p . M e x . , V o l . 5 7 . 39

F i s h t o F o s t e r , N o . 366, J a n u a r y

19, 1 8 7 7 , M S . I n s t . M e x . , v o l . 1 9 .

l a t e r i n s t r u c t i o n F i s h a d d e d t h e r e p e a l of the " F r e e Z o n e " b y t h e M e x i c a n

m e n t as a s t e p t h a t w o u l d i n d u c e t h e U n i t e d S t a t e s t o l o o k w i t h f a v o r u p o n recognition

of

M e x . , v o l . 19.

Diaz.

See Fish to Foster, N o .

370, F e b r u a r y

12,

In

a

govern-

1877, M S .

the Inst.

P R E L U D E TO T H E D I A Z E R A principle that one administration could annul the contracts entered into by a prior administration. T o this Vallarta replied that it was not the intention to make a sweeping abrogation of all contracts but only of such as were " illegal, dishonest or bore oppressively upon the country." Foster answered that he " did not contend for the recognition of any contracts made with American citizens, which were illegal at the time made," but that the legal and binding contracts of a government recognized by the United States could not be annulled by a subsequent government. T o this principle, said Foster, Vallarta assented. 40 This agreement in principle, however, did not prevent a disagreement on the execution of the decree in particular instances. One of these instances involved a concession that had been granted in 1874 for the construction of a railroad from Mexico City to Leon. The principle backer of the company formed to carry out this concession was the English banking firm of Barron, Forbes and Company of Mexico City. In accordance with the terms of the concession, a bond in the sum of $150,000 had been executed for the faithful performance thereof, and, as security of this bond, a large hacienda and certain other property belonging to Barron, Forbes and Company had been mortgaged to the Mexican government. The work of construction had been interrupted by the Diaz revolution, and the company had thereupon appealed to the Lerdo government for an extension of time. The Lerdo government was willing to grant this extension but delayed in doing so until after the expiration of the time limit fixed by the concession for the completion of a specified extent of the railroad. Shortly afterward the Lerdo government was overthrown, and the Diaz government promptly declared the concession forfeited under the Diaz decree, without giving the company any opportunity to be heard. The hacienda of Barron, Forbes and Company and the other mortgaged property were thereupon seized and ordered sold to satisfy the amount of the bond. In the absence of a British diplomatic representative in Mexico, Foster used his good offices to endeavor to bring about a modi40

Foster to Fish, No. 487, January 16, 1877, MS. Desp. Mex., Vol. 58.

112

P R E L U D E TO T H E DIAZ E R A

fication of the decision of the Diaz government. He argued that the forfeiture was " a violation of individual rights which was utterly unwarranted by any provision of law," especially in view of the provision in the concession that any question concerning the compliance therewith should be decided by the Mexican federal courts. The Diaz government, however, refused to modify its position. Vallarta maintained that the declaration of forfeiture for noncompliance was an administrative matter and that, under the civil law, the action of the government was wholly justified. Thereafter the company undertook to effect a settlement by negotiation, and finally agreed, in return for a removal of the embargo that had been placed on its property, to recognize the forfeiture, including all expenditures made on the road (amounting to about $80,000) and to pay to the government the sum of $32,000 which the company had received on a lottery franchise granted in the concession. Foster reported that the loss sustained by the company was great, but he regarded the injury to Mexico as " infinitely greater in the bad faith which has been manifested in observing its governmental contracts with foreign capitalists, whose cooperation is so greatly needed to develop its public improvements." 41 The payment of the first installment on the awards of the Claims Commission of 1868 fell due on January 3 1 , 1877, just after Diaz had gained control of the government. Although greatly pressed for funds, Diaz succeeded in meeting this installment on the due date. In accepting this payment, Foster gave notice that such action could not be construed as recognition of the Diaz régime. On March 4, 1877, Hayes succeeded to the presidency of the United States. In his inaugural address, he announced that " the traditional rule of noninterference in the affairs of foreign nations would be strictly observed." At the same time, Evarts succeeded Fish as Secretary of State. The elections in Mexico were held the 41 Foster to Evarts, April 21, 1877, MS. Desp. Mex., Vol. 59. Foster's action in this case was approved by the Department of State in its instruction No. 389 of May 15, 1877, MS. Inst. Mex., Vol. 19.

PRELUDE TO THE DIAZ ERA

" 3

following month and resulted in the confirmation of Diaz as President. Foster thereupon wrote to Evarts recommending the recognition of the D i a z government. He observed that, while he had steadily opposed the revolutionary principle of government, the D i a z régime was the only one to which the United States could look for the protection of American citizens and their interests in Mexico. On the question of its stability, he recalled that there had been nearly sixty changes of government in Mexico in fifty years, and that the United States had recognized most of these régimes. A t the moment, D i a z appeared well established in power. Foster did not consider him as possessed of much administrative capacity, but he was regarded as a man of integrity, candor and good habits, " qualities often wanting in Mexican public men." Regarding the revived agitation in the United States for a protectorate over Mexico, Foster expressed the opinion that the only pressure or influence the United States ought at that time to exert in the internal affairs of Mexico was that which would secure the peace and good order of the frontier and the protection of American citizens and their interests in Mexico. H e accordingly suggested that the manner of recognition of Diaz be left to his discretion in connection with the adjustment of outstanding issues. 42 President Hayes, however, took a different view of the Mexican situation from that of his predecessor. Whether his attitude was influenced by the Texas situation or by the pressure of American commercial interests holding or seeking contracts in Mexico, it is of course impossible to determine." A t any rate, he took a 4 2 Foster to Evarts, unofficial and confidential, April 28, 1877, M S . Desp. Mex., Vol. 59. In a postscript, Foster suggested that recognition was important in order to fix upon Mexico responsibility for claims of American citizens against the Diaz government. The Lerdo administration had maintained that Mexico was not responsible for acts of revolutionists and had rejected many American claims on that ground. The Claims Commission of 1868 had likewise rejected claims of American citizens on the ground that the authorities who occasioned them had not belonged to a government recognized by the United States. Recognition of Diaz would accordingly remove a possible ground of defense against claims then arising. 43

On this point see Rippy, op. cit., p. 296.

PRELUDE TO THE DIAZ ERA far less hopeful view of the ability of the Mexican government to work out its own destiny than had President Grant. He declined to authorize the recognition of the Diaz government until some assurance had been given that it would faithfully execute its duties and observe the spirit of its treaties. In informing Foster of this decision, the Department of State pointed out that recognition of a Mexican régime by the United States tended to strengthen the power and lengthen the tenure of that régime. Those administrations in Mexico which had lasted the longest had been those most faithful and friendly in the discharge of their treaty obligations to the United States. It was a subject of grave regret that, in recent years, the customs of friendly intercourse and the obligations of treaties had been neglected, disregarded or violated by Mexico. There had been " raids and depredations upon the Texan frontier, theft, murder, arson and plunder, violations of postoffices and custom houses, incursions by armed men to destroy life or property." Cattle stealing had become a profitable occupation, Mexican military officials were said to have protected robbers, forced loans had been demanded, and American citizens compelled to submit to unjust and unequal exactions. For these and other acts, not one single man, so far as was known to the government of the United States, had ever been punished. The United States believed that some guarantee of an arrangement of outstanding issues should be made the condition precedent to any recognition. Under the circumstances, the United States preferred to wait some evidence that its friendship with Mexico would be reciprocated by the D i a z government. 44 Great excitement was aroused in Mexico at this time b y an order issued by the Secretary of War of the United States to General Ord, commanding American troops on the Texas border, authorizing the sending of American troops into Mexico, if necessary, to suppress border raids. 45 This excitement, wrote Foster, " illustrated more than ever the volatile and childish character of this people and their incapacity to treat a great question with 44

F. W . S e w a r d to F o s t e r , N o . 390, M a y 16, 1877, M S . Inst. M e x . , V o l . 19.

45

See R i p p y , op. cit., p. 299.

PRELUDE TO THE DIAZ

ERA

"5

calmness and without prejudice." Doubtless, he said, the order had not been issued without careful consideration by President Hayes and his cabinet, but being once issued, he regarded it as " inadvisable to yield in regard to it in the slightest degree until all pending questions were settled and full assurances of security given for the future." 44 T h e change of policy of the American government on the subject of recognition was a great disappointment to the Diaz government. Vallarta insisted that his government possessed all the conditions of recognition required by international law and the practice of nations. H e claimed that it had " manifested every possible disposition to comply with the obligations of treaty and comity towards the United States " ; that it had promptly paid the first installment on the claims awards under the most difficult circumstances; and that it had held itself ready to give all reasonable guarantees for the preservation of peace on the frontier and for the protection of American interests in Mexico. He maintained that the adjustment of these questions would more properly follow than precede recognition, especially since they required treaty stipulations. He asserted with considerable feeling that, in issuing the order to General Ord regarding the crossing of the border by American troops, the American Secretary of War " had disregarded all the rules of international law and the practises of civilized nations and treated the Mexicans as savages, as Kaffirs of Africa." By this act the cabinet at Washington had sought to place Mexico beyond the pale of civilized nations. General Trevino (in command of the Mexican troops along the border) had been advised to cooperate with the American troops in suppressing raids, but had been informed that the Mexican government would never permit its territory to be violated by American troops without repelling them by force of arms. N o government, said Mr. Vallarta, could stand in Mexico for a moment against the popular indignation, if it did not assume this attitude. 47 In reply, Foster stated to Vallarta that, so far as recognition was concerned, the existing administration at Washington did not 46 47

Foster to Evarts, Confidential, June 30, 1877, MS. Desp. Mex., Vol. 59. Foster to Evarts, No. 550, June 20, 1877, M S . Desp. Mex., Vol. 59.

II6

PRELUDE TO THE DIAZ

ERA

seek to intervene in the internal politics of Mexico, but that it had a deep interest in the stability of whatever government it might recognize in the Republic and a desire to be assured of its ability and its disposition to comply with its international obligations, both on the frontier and toward American citizens and interests within the country. T h e failure of the D i a z government to receive recognition was owing to its own neglect of its plain duties in these matters. 48 A t Vallarta's suggestion, Foster presented to the Mexican government certain memoranda of possible bases of agreement on outstanding issues. These included a suggested settlement of the border troubles; a treaty stipulation designed to exempt American citizens from all forced loans or military taxes or contributions in Mexico; an agreement covering the settlement of claims of American citizens arising out of forced loans, damages and losses sustained during the unsuccessful D i a z revolution in 1871 and 1872; and certain suggestions as to the method of settling four other claims that had arisen subsequently. 49 As the two subjects of forced loans and revolutionary damages formed, together with the question of the border raids, the main points on which the American government rested its refusal to recognize the D i a z régime, it will be of interest to examine in some detail the positions assumed by the two governments in regard to them. 48 49

Foster to Evarts, No. 550, June 20, 1877, M S . Desp. Mex., Vol. 59. Foster to Evarts, Nos. 558 and 559, June 23, 1877, M S . Desp. Mex., Vol. 59.

CHAPTER V FORCED

LOANS AND

SPECIAL

TAXES

THE question of forced loans had been a troublesome one almost from the beginning of the relations of the two countries. T h e continued poverty of the Mexican Treasury and the constant necessity of coping with revolutionary movements had led the successive parties in power in Mexico to resort to every possible device for raising revenue. Since all of the usual means of taxation scarcely covered even the normal requirements of the Mexican government, the military and civil officials, both of the régime in power and of revolutionary movements, had acquired the habit of meeting their financial needs by the imposition of forced loans on property holders under their control. These forced loans took a variety of different forms; sometimes they were levied under legislative authority, but more often by the decree of a military official acting with or without specific authority from the central government. They were seldom levied on the country as a whole; usually upon a single town, canton or state. In form, they were generally imposed on property owners without overt discrimination as to nationality, but as foreigners were more apt than natives to have assets readily converted into cash and also had less influence with the military chiefs, such levies usually bore more heavily upon them than upon natives. As a rule, these impositions were accompanied by an express or implied promise to repay at some future date, but, owing to the habitual poverty of the Mexican government and of insurgent factions, these promises to repay were seldom taken seriously. From the legal standpoint, the subject of forced loans is generally dealt with under the heading of taxation. The Treaty of 1831 between the United States and Mexico expressly recognized the general principle that foreigners are subject to the taxing power of the state along with natives, including the power to levy "7

II8

FORCED LOANS AND SPECIAL TAXES

special contributions. Article 9 of that treaty provided that the citizens of the two countries should not be subject " to any other charges, or contributions, or taxes, than such as are paid by the citizens of the States in which they reside." 1 No specific reference was made to forced loans in the treaty. In this it differed from the treaties between Mexico and a number of European states which prohibited the levying of forced loans " especially " upon the nationals of those states. In the Treaty of 1826 between Mexico and Great Britain, the word " especially " was omitted, and it was simply provided that " no forced loans shall be levied " upon the citizens of either power. 2 The question whether American citizens in Mexico were subject to forced loans seems to have come up first during the term of office of General Butler. In September, 1833, the American Consul at Vera Cruz wrote to Butler that the Governor of the state of Vera Cruz had levied a contribution on all the inhabitants of the state for military purposes. Butler had no difficulty in convincing himself that Americans were not subject to such a levy, even though it might be applied impartially to both natives and foreigners. " These people commit so many errors," he wrote to the American Consul, " and fall into so many mistakes on subjects of the simplest character, that one may excuse them and not be much surprised at their errors upon questions the least involved or obscure." Had the Governor of Vera Cruz been able to comprehend the character and effect of a treaty between nations, he would have realized that the only power which could levy a contribution in accordance with the Treaty of 1831 was the national government. Such a levy, said Butler, had to be imposed on the whole country and not merely on those residing in one portion of it. He had alMalloy, op. cit., Vol. I, p. 1088. The full text of the article was as follows: " Art. X . In all that relates to the police of the ports, the lading and unlading of ships, the safety of merchandise, goods, and effects, the subjects of His Britannic Majesty, and the citizens of Mexico, respectively, shall be subject to the local laws and regulations of the dominions and territories in which they may reside. They shall be exempted from all compulsory military service whether by sea or land. N o forced loans shall be levied upon them; nor shall their property be subject to any other charges, requisitions, or taxes, than such as are paid by the native subjects or citizens of the contracting parties in their respective dominions." 1

2

FORCED LOANS AND SPECIAL T A X E S

119

ready made this clear, he said, at the time a forced loan had been imposed by the national authorities in August, 1832. He had objected to the application of that loan to American citizens on two grounds: first, that American citizens were not subject to forced loans in any case, because the treaty did not specifically mention imposts of this character; and, second, that even if they were, they could not be subjected to this particular loan because it did not embrace and operate upon every individual in the whole nation, since a portion of Mexican territory was then in revolt and not under control of the central government. The Mexican government, said Butler, had been compelled to yield to him on both points. He added that the absurdity of the opinion expressed by the Governor of Vera Cruz was " palpable to anyone the least conversant with questions governed by international law." 8 Had the Mexican officials been disposed at that time to insist upon the right to levy forced loans on Americans, they would have had little difficulty in pointing out logical defects in the arguments advanced by Butler in opposing such action. They might have argued, for example, that the provision in the treaty was in fact merely declaratory of existing practice on the subject of taxation of aliens, and was not, as Butler inferred, the granting of a right not previously possessed by the Mexican government and hence to be strictly construed. They might also have pointed out that the provision did not expressly require that contributions should be levied on all the inhabitants, but merely that American citizens should not be subject to a contribution that was not also levied on " the citizens " of Mexico. However, it appears that they acquiesced in Butler's interpretation of the treaty and refrained from subjecting American citizens to the forced loans in question. Butler's successor, Ellis, likewise found occasion to protest against the application to American citizens of a forced loan. In this instance the exaction was levied by act of the federal legislature upon property owners generally, but this fact seems to have made no difference to Ellis on the question of its applicability to 8 Butler to American Consul at Vera Cruz, October 2, 1833, enclosed with Butler to Lane, No. 65, October 9, 1833, M S . Desp. Mex., Vol. 6.

120

FORCED LOANS A N D SPECIAL

TAXES

American citizens. He merely assumed that forced loans were illegal and protested as a matter of course. Largely because of his attitude, American merchants in general permitted their stores to be embargoed and their goods seized rather than pay the loan. A t the same time, acting on Ellis' instructions, they protested the right of the government to levy such a loan upon them. As Ellis foresaw that the merchants affected would enter claims against Mexico for reimbursement, he asked for instructions on the subject from the Department of State. 4 In reply, Secretary Forsyth stated that if the exaction " were a mere tax or contribution levied upon the inhabitants generally," Americans could not complain, since they were subject to such charges by treaty; but if, as appeared to be the case in this instance, " the law should be construed to authorize a loan or contract really compulsory," Ellis should persist in demanding redress. 5 This instruction was sufficiently vague to allow Ellis to draw his own deduction on the loan in question. T h e diplomatic correspondence does not disclose whether Ellis succeeded in obtaining reimbursement for the Americans who had been subjected to the loan or not. However, an American citizen subsequently filed a claim before the Claims Commission of 1839 for property seized from him by the Mexican authorities in 1836 in payment of a forced loan assessed upon him, and the Commission unanimously decided that the claim was valid. 8 4

Ellis to F o r s y t h , N o . 18, September 7, 1836, M S . Desp. M e x . , V o l . 7.

s

F o r s y t h to Ellis, N o . 25, December 20, 1836, M S . Inst. M e x . , V o l . 15.

Italics

in original. 6

Ducoing's case.

W h i l e this commission handed d o w n no written

opinions,

there is in the record of this case an opinion w h i c h is unsigned b u t w h i c h is in the handwriting of the person w h o wrote the a w a r d s .

T h e opinion, part of which is

illegible, is as follows: " 1st.

T h a t the C l a i m a n t w a s a citizen of the United States, transacting the

business of a . . . merchant in the city of M e x i c o , in the years 1836 & 7, and that, while so residing there on September 1836, the G o v e r n m e n t of that S t a t e for the alleged purpose of subjecting him to a forced loan of $1000. seized, t o o k possession of and bore a w a y

f r o m his house, 300 stamped crepe [ ? ]

shawls, w o r t h

$1500.

and $500. in copper coin, which it never returned, but k e p t and disposed of both the money and shawls for its o w n use, and extorted f r o m him in addition thereto $96. under the pretext, that that amt. of costs h a d been legally incurred in forcibly seizing and depriving him of his goods, and m o n e y as assessed [ ? ] .

T h e shawls

F O R C E D LOANS AND SPECIAL T A X E S

121

At the same time, other nations were protesting against the imposition of forced loans on their subjects in Mexico. Among the unsettled claims of French subjects that were the cause of the French intervention in 1838, were a large number arising out of forced loans, and the French government demanded as a condiw e r e taken f r o m him on the third d a y of Sept. 1836, and the $500. in m o n e y w e r e taken f r o m him on the n t h of N o v . in the same year, on the 16th of t h a t m o n t h , the last of the $96. of alleged costs w a s paid b y him. " A forced loan has in it all the elements of robbery. It has the taking of a m a n ' s m o n e y f r o m him against his will, by the arm of strength, b y o v e r p o w e r i n g , b y a w i n g him into a state of nonresistance.

His life is not taken or threatened

b y t h e usurper of his m o n e y , o r p r o p e r t y , because there is p o w e r in the assailant to a c h i e v e his purpose w i t h o u t assassination, or the threat of it.

B u t even in t h a t ,

the b o r r o w e r b y force has nothing to w a n t over the robber, for he too, w o u l d not t a k e life, if he could t a k e the m o n e y , at which he aims in safety without it. " T h e G o v t , has no need of such a resort.

T h e robber cannot do w i t h o u t i t .

I n b o t h cases the m o n e y is t a k e n f r o m its owner.

In the case of robbery, the

assaulted m a y resist, and e v e n t a k e the life of the assailant, to save his m o n e y . In the case of t h e loan, resistance is punishable as a crime — y o u are robbed w i t h i m p u n i t y b y the v e r y p o w e r t h a t punishes robbery w i t h death. it is a virtue to resist e v e n u n t o death. resistance

whatever.

In b o t h

In the one case

In the other, it is a crime to m a k e a n y

cases, y o u are deprived

of

your

money,

against

y o u r will — and all the difference between the t w o cases is, that the G o v t , while [ c o m m i t t i n g a ?] r o b b e r y , promises to return the money, w h e n it shall be c o n venient, but

never

finds

it c o n v e n i e n t

to do so.

promise, and m o c k s his v i c t i m w i t h no such illusion.

The

robber makes no

such

It w o u l d seem strange t h a t a

change of the A g t . , w h e n the facts are the same should produce such a change in the moral aspect of the c a s e !

T h e will of the owner is violated in both cases •— re-

sistance is silenced in b o t h cases b y fear — in both cases p o w e r is used to impress fear u p o n the destined v i c t i m of p r i v a t i o n . " A forced loan, in all its constituent facts, approaches so near to a robbery t h a t a G o v t , should never resort to it b u t in the extremest necessity.

N o t h i n g will j u s t i f y

it but a crisis in w h i c h the social fabric can be saved b y that measure alone.

The

question must be, shall the social fabric be dissolved, or a forced loan exacted — or, rather, the question should be, can the organized structure of the G o v t , of the State be preserved, b y no other means than a forced loan.

It can be legitimate,

only as a self preserving measure, declared b y necessity, to be used only w h e n all others fail. " It is so p r e d a t o r y both in its offence, and its aspect so . . . [ ? ] tion, that the G o v t , d r a w n b y

necessity t o e m p l o y

in its opera-

it, should mingle with

the

necessary v i g o r of its proceeding, all the gentleness, and placidity of which o f ficial

agency is susceptible.

It should m a k e its exactions as small and light as

possible upon each individual — and restore to each the amt. taken with interest, as quickly as possible, f o r if it be n o t so returned then it is a consummated r o b b e r y . The

only

ingredient,

which

distinguished

it

from

robbery

being

superadded.

122

F O R C E D LOANS A N D S P E C I A L T A X E S

tion of withdrawal of its forces that the practice of imposing loans on French subjects should cease. In compliance with this demand, the following article was inserted in the Jalapa Convention between France and Mexico of November 26, 1838: Article V I .

T h e Mexican government being agreed that forced loans shall

not be imposed either upon natives or upon foreigners, the demand of the government

of

France in this point with respect

to French

citizens is,

consequently, satisfied. 7 It was the promise to return it, with interest, within a reasonable time, that contradistinguished it from robbery, and gave it the character of a forced loan. The withholding the money so obtained, and not returning it within a reasonable time, evinces a disguised punitive intention in the original taking — and the last act, or withholding the money, relates back to the original taking, and furnishes the last link in the chain of facts which enters into the definition of the crime of robbery." 7 Foster to Evarts, Accompaniment 3 to enclosure 5, September 4, 1877. In explanation of this agreement, Cuevas, Mexican Minister of Foreign Affairs, issued the following statement on Jan. 10, 1839: " With reference to forced loans, France should have proceeded with frankness and learned the real sentiments entertained by the government with reference to this species of taxation. " Forced loans, as all know, have been imposed in circumstances of difficulty and of extraordinary want of resources for the nation. " Whenever this measure has been taken, it has given rise to heated discussions and has been looked upon with repugnance by both foreigners and natives. " The government, notwithstanding, compelled by necessity, has not been able to do less than to adopt means as well known to be undesirable as regretted by all. " The existing treaties do not prohibit forced loans where they are general, and though the foreign text of some appears to prohibit them generally, the Spanish proves in the most irrefragible manner that the prohibition only extends to special forced loans, and not to those which comprehend all classes. " Notwithstanding this, the good intention of the government, its equity, and the desire with which it was animated to make known to that of France that in the adjustment of the existing difficulties it would never abandon the principles that it believed most in conformity with the universal practice of civilized countries, required that in this point it should manifest a disposition favorable to satisfy the demands relative to France. " Forced loans, in fact, indicate by their very name an arbitrary act and an attack upon property: the violence by which they may be exacted, and the difficulty of an equitable and proportionate application, have rendered inevitable measures as alarming as disagreeable for Mexicans and foreigners. They have been viewed, also, in a very unfavorable manner by other governments of friendly nations, and, indeed, have appeared little in conformity with the principles of order and civilization of all representative countries. In view, therefore, of these observations, as well founded as politic, this point ought to be ceded, but in such a manner as shall not be understood to be a special concession to the government of France, but taken as

FORCED LOANS AND SPECIAL T A X E S

123

In 1 8 4 0 , Ellis presented to the Mexican government a claim for reimbursement of two American citizens, John C . Jones and A l f r e d B . Thompson, on account of a forced loan exacted from them by the Governor of the T w o Californias in 1 8 3 8 .

In pre-

senting the claim, Ellis stated that there could be no doubt that the sum in question had been " applied to the uses of the Mexican Government."

In reply, the Mexican government admitted

the validity of the claim and issued an order on the Treasury for its payment in full. 8 In like manner, W a d d y Thompson in 1 8 4 3 protested against the imposition of a forced loan on American citizens by a Mexican general for the purpose of raising money for federal troops. In reply to this protest, the Mexican government stated that American citizens should not have been subjected to the exaction, and that the necessary orders had been given to reimburse them.* When informed of this action, Secretary Upshur expressed his gratification that the Mexican government had " manifested a disposition to render prompt justice " in the matter of forced loans, and added that the United States could make no concession on this point. 10 a general resolution not to impose forced loans in the future, the reclamation with respect to the French will at the same time be satisfied. " This declaration would not in any w a y impair the legality of these loans in the past, nor give rise to reclamations from other powers, because, although on the part of Mexico it should be agreed not to impose them in the future, no responsibility would be assumed for the past, with respect to which the reasons on which the declaration would be founded would be solely that of public convenience and policy, and not of rigorous right nor of strict justice. T h e present administration can proceed upon this point with all the more liberty from the explanations that have already been made in congress by the organ of the ministry regarding the inconveniences of forced loans, and the desirableness that they should not hereafter be decreed by the legislative body. Thus, notwithstanding the extraordinary scarcity in the treasury in consequence of the blockade of the ports of the republic, there has not been initiated during my administration any such measure, and there have been only proposed such as were in conformity with the indisputable right of the nation, to provide sufficiently for the public expenditures." 8 Ellis to Canedo, June 1 3 , 1840, enclosed with Ellis to Forsyth, No. 28, J u l y 9, 1840, M S . Desp. Mex., Vol. 9. 8 Bocanegra to Thompson, September 6, 1843, enclosure with Thompson to Upshur, September 7, 1843. 10 Upshur to Thompson, N o . 5 1 , October 20, 1843, M S . Inst. Mex., Vol. 1 5 .

124

F O R C E D LOANS A N D S P E C I A L T A X E S

The Board of Claims established under the Treaty of 1848 likewise held that forced loans were illegal and made awards in favor of American citizens who had been compelled to pay them, regardless of whether the exactions were levied uniformly or not. Thus in the claim of John A. Robinson, which arose out of a forced loan levied by the central government on the inhabitants generally for war purposes, the Board expressed the opinion that " the Mexican Government had no right to require the payment of this sum or any sum of the memorialist, and it therefore decides that the claim is valid, and allows it accordingly." 1 1 On May 1 5 , 1858, President Zuloaga issued a decree providing for the imposition of a capital levy amounting to about one per cent on all capital above 5,000 pesos invested in business, whether in the form of real or personal property. This was to be paid in four installments: the first in fifteen days, the second in twentyfive, the third in forty, and the fourth in fifty days. As an inducement to pay the whole amount immediately, it was provided that those who did so within the first period would receive a certificate entitling them to a certain number of shares of stock in a national bank that was provided for in another decree issued the same day. Outside of this particular feature, the assessment was frankly a capital tax with no provision made for its repayment. 12 In reporting this decree to the Secretary of State, Forsyth characterized the tax as a " forced loan under the disguise of a milder name." B y so denominating it he was able to deduce that it could not be made to apply to foreigners. He added that foreigners were not exempt by the terms of the decree and that if it were made to apply to American citizens he would of course protest against it. " The civil war," he wrote, " which paralyses commerce and cuts off the interior from the seaboard, is sufficiently ruinous to foreign trade, without the addition of forced contributions to the Government." 13 When it became apparent that the Mexican government was 11 Cf. Moore, International Arbitrations, Vol. IV, p. 3410, also the case of William Homan, ibid., p. 3409. 12 Decree of May 15, 1858; trans, enclosed with Forsyth to Cass, No. 77, June 1, 1838, MS. Desp. Mex., Vol. 22. 13 Forsyth to Cass, No. 76, 1858, MS. Desp. Mex., Vol. 22.

FORCED LOANS AND SPECIAL TAXES

125

going to enforce this decree against foreigners as well as Mexicans, Forsyth called a meeting of the other diplomatic representatives at Mexico City and asked them to join him in a protest against such action. T o his surprise, his colleagues declined to do so, chiefly on the ground that the levy was a legitimate one. 14 In spite of this unexpected set-back, Forsyth filed a vigorous protest with the Mexican government against the application of the levy to foreigners. He asserted that the contribution was destitute of all the elements of a " regular tax " and really constituted a forced loan. It was, he said, irregular and unusual in its inception, being imposed not by virtue of any existing law but a sudden and unexpected decree. It was a temporary expedient suggested by the pressing necessities of civil strife, and was " partial, unequal, and unjust in its operation," although he did not specify in what manner this was the case. He concluded that the contribution did not come within the purview of the general principles of taxation as these existed among civilized nations, but that, on the contrary, it was a simple forced loan and hence could not be levied on foreigners. He asserted that, according to the soundest principles of international law, the property of a citizen in a foreign state continued under the protection of his own government, and any action taken against such property would be " equally derogatory to the rights of the individual owner and to those of the Nation of which he is a member." This principle excluded all shadow of right to appropriate, destroy or confiscate the property rights of foreigners. If the decree in question taking one per cent of the property of foreigners was valid, then it would be equally valid to take a half or even the whole of such property. He also expressed the opinion that the levy was contrary to the provision against forced loans in the treaty between Mexico and Great Britain of 18:6, and that in view of the " most favored nation " clause in the American Treaty of 1831 the levy was equally inapplicable to American citizens. For these reasons he had no alternative but 14

F o r s y t h r e p o r t e d t h a t t h e B r i t i s h M i n i s t e r l a t e r c h a n g e d his p o s i t i o n t o t h e

e x t e n t of r e q u e s t i n g the M e x i c a n g o v e r n m e n t n o t t o e n f o r c e the d e c r e e u p o n B r i t i s h s u b j t c t s u n t i l he c o u l d o b t a i n t h e o p i n i o n of his o w n g o v e r n m e n t o n t h e q u e s t i o n . F o r s y t h c o n s i d e r e d t h i s a c t i o n " a p r o t e s t in f a c t t h o u g h n o t in f o r m . " C a s s N o . 7 7 , J u n e i , 1858, M S . D e s p . M e x . , V o l . 22.

Forsyth to

126

F O R C E D LOANS A N D S P E C I A L T A X E S

to enter a solemn protest against the exaction of the contribution from American citizens, and " to advise his countrymen in accordance with the principles and views laid down in this protest, that they are not bound to pay the contribution in question." 1 5 In reply to this protest, Señor Cuevas, the Mexican Minister of Foreign Affairs, pointed out that the reasons given by Forsyth for opposing the contribution were of such a character that they could be made to bear upon all the imposts established in the Republic, " leaving entirely destroyed the liberty and the right which it has and which are recognized by treaties, to impose the contributions which it esteems necessary to cover the expenses of the public administration." He denied that the contribution was in reality a forced loan and asserted that the American Minister and his compatriots should cooperate in the enforcement of the decree, since it provided the means for repressing the state of anarchy which existed at that time in Mexico. 18 That Forsyth's decision as to the illegality of the tax was not wholly the product of deductive logic from general principles was made obvious by his next despatch on the subject to Secretary Cass. Acting upon Forsyth's advice, the foreigners against whom the contribution was levied refused to pay it. Since the seizure and sale of their property would require some time and purchasers were doubtful, Forsyth believed that this would result in the failure of the loan as a measure for immediate financial relief. " And there," he wrote to Cass, " is the connection between the treaty of Session and the Contribution. The latter failing and my protest having been the principle instrument of the failure, one of two important results, it is now clear, must follow; first, the government will be overthrown; or, second, it will be forced to treat with me for the sale of territory." 17 Meanwhile, wrote Forsyth, the Mexican government was losing its temper and proceeding to very unjustifiable measures. An American citizen who had, on Forsyth's advice, declined to pay 15

F o r s y t h to the M e x i c a n M i n i s t e r of F o r e i g n R e l a t i o n s , M a y 22, 1 8 5 8 , e n -

closure with F o r s y t h to Cass, N o . 77, J u n e 1 , 1 8 5 8 , M S . D e s p . M é x . , V o l . 16

M S . Desp. M é x . , V o l . 17

22.

C u e v a s t o F o r s y t h , M a y 22, 1 8 5 8 , enclosure w i t h F o r s y t h to Cass, N o . 77, 22.

F o r s y t h to C a s s , N o . 78, J u n e 1 7 , 1 8 5 8 , M S . D e s p . M é x . , V o l .

22.

FORCED LOANS AND SPECIAL T A X E S

127

the contribution levied against him, was ordered to leave the country within three days.

Similar orders were served on several for-

eigners of other nationalities.

Forsyth thereupon warned the

Mexican government that if any American citizen were expelled from Mexico for this cause, the Mexican government would " take the step upon the peril of its responsibility to the Sovereignty of the United States," and that he would " feel it to be his duty to mark that responsibility by the most decided measures that belong to the powers and obligations of his Representative Office."

18

T o Cass, Forsyth wrote that if one American citizen should be punished for this cause, he would immediately suspend all political intercourse with the Mexican government until the pleasure of his own government could be known.

N o better opportunity

could be offered, he said, to have a clear understanding of the relations between the United States and Mexico, and " a full settlement of those vexed and pending questions which demand a solution " (presumably including the sale of further territory to the United States).

T h e existing government was as useless of any

good to the country and as vicious and tyrannical as it was possible to conceive. 19 In reply to Forsyth's note, the Mexican Minister of Foreign Affairs protested against the " vehement and offensive " terms in which it was couched and also against Forsyth's action in advising American citizens not to comply with the decree.

He again justi-

fied the exaction of the contribution on legal grounds and insisted that the order of expulsion issued against those who refused to pay the contribution was in accordance with " the law and polity of all countries," and the President could not revoke it. 20 Forsyth replied at length to this note, seeking to defend himself from the charges made by Señor Cuevas and reviewing in detail the outstanding causes of complaint which his government had against the Mexican government. 18

Forsyth to Cuevas, June 17, June 17, 1858, MS. Desp. Méx., Vol. 19 Forsyth to Cass, No. 78, June 20 Cuevas to Forsyth, June 18, Junt 25, 1858, MS. Desp. Méx., Vol.

In conclusion he stated

1858, enclosure with Forsyth to Cass, No. 78, 22. 17, 1858, MS. Desp. Méx., Vol. 22. 1858, enclosure with Forsyth to Cass, No. 8o, 22.

128

FORCED LOANS AND SPECIAL

TAXES

that the " flagrant violation " by Mexico of the obligation of justice and good neighborhood toward the United States had gone as far as a decent regard to its self-respect could permit, and that he would be recreant to his public duties if he did not mark in the most decided manner his sense of the necessity of curbing it " in its headlong and reckless course." He accordingly announced that he suspended from that date the political relations of the American Legation with the government of Mexico until he could learn the pleasure of his own government, and that in the meantime he would limit his official action to whatever might be necessary for the protection of his countrymen in Mexico. 21 Secretary of State Cass expressed his complete concurrence with the position taken by Forsyth on the subject of the capital levy. " It is not a tax," wrote Cass, " within the just meaning of that word, and does not come within the ordinary assessments of the country to which foreigners should contribute." T h e government of Mexico did not exert authority over the whole country and could not extend protection in those portions of the territory that were in revolt. It was accordingly unjust and unfriendly to other powers to require their citizens to bear, not only their just proportion of the regular taxes, but also contributions assessed to raise the means to carry on belligerent operations. Furthermore, wrote Cass, the assessment covered not only property within the territory actually controlled by the central government but also in other parts of Mexico where such property likewise might be subject to taxes by the contending factions. Forsyth was instructed to make known to the Mexican government the expectation of the President of the United States that no further action would be taken by the Mexican government in the matter until the question of its bearing upon the right of the United States had been fully investigated by the American government. 22 B u t after discussing the question with the Attorney-General, Secretary Cass modified some of his reasons for holding the levy illegal. H e decided that it was not in reality a " forced loan " 2 1 Forsyth to Cuevas, June 21, 1858, enclosure with Forsyth to Cass, No. 80, June 25, 1858, M S . Desp. Mex., Vol. 22. 2 2 Cass to Forsyth, No. 48, June 23, 1858, M S . Inst. Mex., Vol. 17.

F O R C E D LOANS A N D S P E C I A L T A X E S

129

within the meaning of Article 1 0 of the treaty between Great Britain and Mexico, and hence was not a violation of the treaty rights of American citizens under the " most favored nation " clause. 28 However, he still maintained that the tax was " unjust and unfriendly," and in this view the Attorney-General concurred with him. The ground now relied upon to support this view was that the system of extraordinary taxation to which foreigners temporarily resident in Mexico were subject was out of all reasonable proportion to the amount of protection afforded to them.24 Cass wrote that the President sanctioned the measure Forsyth had taken in suspending relations with the Mexican government and directed that the Legation of the United States be withdrawn from Mexico. 25 It will be recalled that the Zuloaga government that instituted the capital tax which resulted in this severance of relations was not regarded with favor, either by Minister Forsyth at Mexico City or by the administration at Washington, and that there was a large and growing sympathy in the United States with the Juarez faction then in revolt in Mexico. After this faction had established control over a good proportion of Mexico and had been recognized by the United States, it likewise sought to raise revenue by assessments on capital. Corwin, who had succeeded Forsyth as American Minister, at first took the position that such assessments were illegal, 26 but Acting Secretary Seward expressed a different view on the subject. He wrote to Corwin that the gov23

A year later Cass was not so sure that American citizens, by the Treaty of 1 8 3 1 , were entitled to the exemption from forced loans provided for in the Treaty of 1826 between Great Britain and Mexico. In connection with the negotiation for a new treaty, Cass wrote to Forsyth's successor, Robert M c L a n e , that under the " most favored nation " clause it was " probable that our citizens are entitled to the same exemption," but so important a provision should not be left to any uncertainty. M c L a n e was accordingly instructed to insert a direct stipulation to that effect in the proposed treaty. Cass to M c L a n e , N o . 16, J u l y 30, 1859, M S . Inst. Mex., Vol. 17. 24

It is hardly necessary to point out that this theory that the right to tax foreigners is dependent upon the amount of protection afforded them has been thoroughly discredited. - 5 Cass to Forsyth, No. 49, J u l y 15, 1858, M S . Inst. Mex., Vol. 17. See enclosures with Corwin to Seward, N o . 6, September 29, 1 8 6 1 , M S . Desp. M e x , Vol. 28.

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F O R C E D LOANS A N D S P E C I A L T A X E S

ernment of the United States desired to see the Juarez government sustain itself in the crisis through which it was passing. In his opinion, citizens of the United States resident in Mexico ought to bear their proportion of the burdens necessary to the maintenance of the government whose protection they enjoyed. The question of the lawfulness of such taxes did not arise out of any rights peculiar to themselves, he said, but out of rights common to them with all the inhabitants of Mexico. He accordingly felt that Americans under such circumstances might well be left to abide the decisions of the Mexican tribunals in the same manner as Mexicans themselves must do.27

DECISIONS

OF T H E C L A I M S

COMMISSION

OF

1868

Up to this point, the decisions on forced loans in the diplomatic correspondence between the two countries had been fairly uniform in favor of the exemption of American citizens, although it can scarcely be said that the question had been the subject of very incisive reasoning. The Mexican government had not raised any effective opposition to this view and had in fact acquiesced in it on several occasions. On the legality of special capital levies, the government of the United States had taken conflicting positions, its views seeming to depend more upon its sympathy with the particular régime in Mexico enforcing the levy than upon any other discernible factor. In the light of this situation it is interesting to examine the decisions of the 1868 Claims Commission on the subject. A large number of claims arising out of forced loans and special taxes were submitted to that Commission, embracing levies of every conceivable variety, from those imposed on individuals by revolutionary officials to general taxes assessed by the central government under legislative authority. The Commission as first constituted appears to have been unanimous in holding that foreigners were exempt from forced loans by military leaders, although the precise reasoning on which this judgment was based is not clear from the opinions. 27

Seward to Corwin, No. 29, November 1 1 , 1861, MS. Inst. Mex., Vol. 17.

F O R C E D LOANS AND S P E C I A L T A X E S In the case of Moses Moke v. Mexico, Docket No. 342, the American Commissioner, Wadsworth, rendered the decision of the Commission and made an award, not only of the amount of the forced loans exacted from the claimant, but also of $500 for imprisonment for one day as a result of the claimant's resistance to the loans. Wadsworth held that forced loans were illegal but gave no reasons for this opinion. The allowance of $500 for imprisonment was given, he said, because the Commission wished to condemn the practice of forced loans by military officials. He added that if larger sums in damages were needed " to vindicate the right of individuals to be exempt from such abuses " the Commission would undoubtedly feel required to give them.28 Wadsworth gave a similar ruling for the Commission in the case of Robert Wulfing v. Mexico, Docket No. 345. In this case the forced loans had been levied by the military commander of a town, and the claimant had been imprisoned for two days for his refusal to pay them. Wadsworth stated that, under Article 9 of the Treaty of 1831 between the United States and Mexico, every charge or contribution levied upon an American citizen, to be legal, " must not only be imposed by a competent authority, but must be uniform and bear alike upon every citizen in the State where this American citizen resides." In the case of George W. Morton v. Mexico, Docket No. 446, Umpire Lieber rendered a decision granting an award for forced loans assessed on the claimant plus interest, but giving no reasons therefor beyond a brief reference to the opinion of the American Commissioner. In this case both the American and the Mexican Commissioners agreed that an award should be made for the forced loans but gave no reasons therefor. The case went to the Umpire on other points. In the case of Rudolph Dressel, Docket No. 450, Wadsworth, speaking for the Commission, made an award for certain forced loans exacted from the claimant by officials of various Mexican administrations, but disallowed two similar exactions by authori2S MS. Opinions, Commission under the Convention of July 4, 1868, Archives, Department of State. All other references to the proceedings of the Commission are based on the same source. Cf. Moore, International Arbitrations, Vol. IV, p. 3 4 1 1 .

132

FORCED LOANS AND SPECIAL

TAXES

ties of the Maximilian government on the ground that the Mexican Republic was not responsible for the acts of that régime. A similar decision was rendered by Wadsworth in the claim of Starr and Merritt, Docket No. 516, which arose out of similar facts. In the case of D . D . Brainard & Co., Docket No. 672, Wadsworth, who rendered the decision for the Commission, stated that the forced loans exacted from the claimant should be repaid with interest. There is nothing in the evidence supporting this claim to show that the loans complained of had not also been levied on Mexican citizens or had been apportioned unequally. In its defense against the claim, the Mexican government advanced the argument that the loans had been exacted by the authorities of two Mexican states, and that the central government was not responsible for the acts of its own states. T h i s defense was not recognized b y the Commission. A f t e r the Mexican Commissioner, Palacio, had been replaced by Zamacona and Umpire Lieber by Sir Edward Thornton, the position of the Commission on forced loans was radically changed. T h e claim of Edgar Keller, Docket No. 96, which was one of the first to come before the reconstituted commission, did not arise out of a forced loan by military authorities but out of the capital tax imposed by President Zuloaga by decree of M a y 15, 1858, mentioned above. It will be recalled that the Zuloaga government was, at the time of issuing this decree, recognized by the United States as the de jure government of Mexico and that it was the imposition of this capital levy that led directly to the severance of diplomatic relations between the two governments. In spite of these facts, Wadsworth agreed to the dismissal of the claim on the ground that the Republic of Mexico was not responsible for the acts of the Zuloaga government. This opinion was based on the prior decision of the Commission in the case of Salvador Pratz v. United States, Mexican Docket N o . 748, in which the United States had been held not responsible for injuries to Mexican citizens at the hands of officials of the Southern Confederacy. As a matter of fact, there was considerable difference in status between the Zuloaga government and the Confederacy, since the United

FORCED LOANS AND SPECIAL TAXES States had recognized the former as the de jure government of Mexico, whereas the Mexican government had not recognized even the belligerent status of the latter. However, Wadsworth was very careful in his decisions to avoid anything that might imply the responsibility of the United States for acts of the Confederate authorities during the Civil War. 20 In the case of the MacManus Brothers, Docket No. 348, Commissioner Zamacona departed from the position of his predecessor, Palacio, on the subject of forced loans, and the case went to Umpire Thornton on this direct issue. In a long opinion rendered November 26, 1874, Thornton reversed the position repeatedly taken by the Commission that Mexico was liable for forced loans by military officials. He stated that the principal argument of the claimants in this case rested on the assertion that they were exempt from forced loans by treaty, but he could find no mention of forced loans in the Treaty of 1831 or any stipulation exempting American citizens from them. There was no evidence that the claimants had ever made application to the Mexican government for the return of the money exacted from them or that they had been refused payment. The Mexican government asserted in its defense that those who had applied were repaid and the claimants had not rebutted this assertion. Thornton referred to the stipulation in the treaty between Great Britain and Mexico that no forced loans should be levied upon British subjects, and to similar provisions in the treaties between Mexico and a number of other nations, but held that this stipulation implied that forced loans might be levied upon the subjects of those nations, " provided they be not levied specially upon them without at the same time and in the same proportion being levied upon all the other inhabitants of the respective countries whether natives or foreigners." He observed that the forced loans complained of in this case apparently had been levied generally among the inhabitants 2 9 In another case dealing with the acts of the Zuloaga government, Wadsworth went so far as to hold that the Commission should go behind the fact of de jure recognition and examine the question of whether a government so recognized had really been the de facto government. In the case of the Zuloaga government he held that recognition by the United States had been a mistake. See Joseph H . Cuculla v. Mexico, Docket No. 779.

134

FORCED LOANS AND SPECIAL

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either of the Republic or of a particular state without distinction as to nationality. Thornton seems to have given the greatest weight in his opinion to the fact that the Mexican government had established an apparent local remedy in the form of a national Board of Liquidation to pass upon and adjust all claims against the government arising out of the revolution. Zamacona, in his opinion, had referred to the establishment of this Board and to the " prospect that payment would follow an adjustment according to the means." H e held that creditors of the Mexican government who had not pursued this remedy could not complain of any injustice. Thornton seems to have taken the establishment of this Board in good faith, although no provision had been made at that time for the actual payment of the claims recognized as valid by the Board. 30 In his dissenting opinion in the M a c M a n u s claim, Wadsworth conceded that, so far as the claim was for special contributions levied either upon all the inhabitants of the Republic or upon all of the cantons of the state in which the claimants resided, no award should be made. H e held that such contributions were lawful and foreigners were equally bound with natives to pay them. This opinion, which is not easily reconciled with his decision in the Brainard case, apparently sprang from the realization that, if a contrary view were held, the United States might become liable for the exceptional measures of taxation resorted to during the Civil War. He referred to those measures and stated that nothing could be more just than that all aliens residing in a country and accumulating property there should contribute equally with all others to its defense against armed invaders. On the matter of 3 0 As a matter of fact, the establishment of such boards for the " adjustment " of claims has been a frequent practice of the Mexican government following periods of revolutionary outbreaks, but these boards have not offered much in the w a y of positive relief to claimants since they were ordinarily not empowered to make cash settlements. Such claims as they recognized merely became part of the internal debt of the Mexican government, and, owing to the continued poverty of that government, the titles to its unsecured debt were usually of little value. See Foster to Evarts, No. 60, November 12, 1877, M S . Desp. Mex., Vol. 60. Cf. Moore, International Arbitrations, Vol. I V , p. 3411.

F O R C E D LOANS A N D S P E C I A L T A X E S forced loans by military authorities, however, Wadsworth strenuously maintained his original position that the Mexican government was liable for them. Such loans, he said, were deplorably frequent in Mexico and were " wicked beyond the power of expression." He held that the claimants should have an award for the forced loans imposed upon them, with 12 per cent interest.31 In all of the subsequent decisions of the Commission on forced loans, Thornton maintained the position he had taken in the MacManus case. Wadsworth, at the same time, while generally agreeing that anything in the nature of extraordinary taxes levied on natives and foreigners alike was legal, consistently maintained his position that forced loans levied by military officials were illegal and involved the international responsibility of the Mexican government.32 In general, Thornton seems to have held that, unless the claimant clearly showed that the forced loans complained of had been levied against him in a discriminatory manner, the Commission could not render an award in his favor. In the case of Francis Rose v. Mexico, Docket No. 344, Thornton gave his understanding of a forced loan as follows: A forced loan is a loan levied in accordance with law. It is equally distributed amongst all the inhabitants of the country whether natives or foreigners. It is a tax which becomes smaller or greater according as it is repaid sooner or later, partly or not at all. If the foreigner is reimbursed at the same time as the native, or if neither of them are reimbursed at all, the former has no ground for remonstrance. As long as the foreigner is placed upon the same footing as the native he cannot complain. But if there be unfairness in the distribution of the loan, or in its repayment, and if any preference be shown to the native, the foreigner has good ground f o r 31

Cf. Moore, International Arbitrations, Vol. IV, p. 3411. The following claims for forced loans were disallowed by Umpire Thornton: Ryder v. Mexico, Docket No. 1 0 1 ; Francis Rose v. Mexico, Docket No. 344; Robert Welsh v. Mexico, Docket No. 443; Julian Palacios v. Mexico, Docket No. 444; Bartolo C. Hicks v. Mexico, Docket No. 487; John H. Mears v. Mexico, Docket No. 515; Raphael M. Miller v. Mexico, Docket No. 518; James P. Hickman v. Mexico, Docket No. 54s; John P. Kelsey v. Mexico, Docket No. 5 5 1 ; Manuel J . de la Vega v. Mexico, Docket No. 746; M. L. Knapp v. Mexico, Docket No. 935; Charles F. Delmas v. Mexico, Docket No. 965; Alfred Howell v. Mexico, Docket No. 970. All these decisions were rendered in 1875 and 1876. 32

136 complaint.

F O R C E D LOANS A N D S P E C I A L T A X E S A forced loan, equitably proportioned amongst all the inhabitants

is a very different thing from the seizure of property from a

particular

individual.

As a matter of fact, no effort had been made by the claimants to show by specific evidence that they had been discriminated against in the forced loans of which they complained. 33 Most, if not all, of these claims had been filed with the Commission before the MacManus decision had reversed the previous ruling of the Commission on forced loans, and the claimants had apparently assumed that it was not necessary to go into the question of the actual distribution of such loans. In his dissenting opinion in the Delmas case, Wadsworth took the position that the burden was on the Mexican government to prove that the loans had been assessed in an equal and uniform manner. To require the claimant to prove the opposite was, in his opinion, " much like requiring him when he has been imprisoned to show that he was innocent and the imprisonment contrary to law." When an individual's property was taken by force, the government should be required to furnish proof that the taking was legal. He stated that he would be entirely surprised if in a single instance the Mexican government could show a uniform and equal assessment of a forced loan. He himself had seen no evidence of such a fact. In connection with Thornton's holding in the MacManus case that the claimants should have first gone for their remedy to the Board of Liquidation established by the Mexican government, it is interesting to note that in the case of John P. Kelsey, Docket No. 5 5 1 , the claimant stated that he had appeared before this Board with his claim but had not received satisfaction. Thornton thereupon held that the claimant must abide by the decision of that Board and that the case could not be considered by the Commission. In the MacManus case, on the other hand, Thornton had ruled that until the claimant had first sought reimbursement from the Board he could not bring his claim before the Commission. But if he had resorted to the Board and his claim had been decided against him, he was equally barred by 33

Cf. Moore, International Arbitrations,

Vol. IV, p. 3417.

F O R C E D LOANS A N D SPECIAL

TAXES

the Kelsey decision from bringing his claim before the Commission. T a k i n g these two decisions together, it would seem that all claims based on forced loans were effectively barred from consideration by the Commission unless the claimant could show that he had sought recognition of the claim by the Mexican Board of Liquidation and had been denied a hearing or had received an award which was not paid. N o cases of this sort in fact arose. Although the decisions of the Commission on the question of forced loans were far from uniform, a numerical majority of them held that forced loans were legal, even though exacted by military officials for war purposes and restricted to the inhabitants of a single community. It does not appear, however, that this final position of the Commission on the subject was merely the product of deductive logic from fixed principles, any more than was its first opinion. Umpire Thornton was plainly not shocked by the practice of imposing forced loans. He apparently felt that it was a necessary feature of the fiscal system in Mexico, and that there was no good reason for exempting foreigners from it at the expense of native citizens. He accordingly defined forced loans in a manner to make them legal and then concluded that Mexico was not responsible internationally for them. Umpire Lieber and Commissioner Wadsworth, on the other hand, plainly felt that the resort to forced loans was a great social evil in Mexico that ought to be discouraged by every possible means. T h e y in their turn defined forced loans in a manner to make them illegal and from this definition were able to deduce Mexico's international responsibility.

SUBSEQUENT DIPLOMATIC DISCUSSIONS In March, 1876, the Lerdo government being in grave financial straits, the President issued a decree levying a uniform capital tax or contribution to meet the deficit in the federal Treasury for the current year. A t the same time, various states and municipalities resorted to capital taxes and contributions to meet their own pressing financial needs. Some of these taxes were expressly stated to be for military purposes. Foster reported to Secretary

138

FORCED LOANS AND SPECIAL

TAXES

Fish that numerous American citizens had applied to him to interpose on their behalf with the government of Mexico to secure their exemption from these taxes, but that he had in all cases declined to do so. He had informed these people that the Treaty of 1831 only exempted American citizens from personal military service, and that both the treaty and the principles of international law contemplated that the property and business of Americans in Mexico should be subject to the same contributions or taxes as were paid by the citizens of Mexico. H e added that, as the decree was uniform and general, he could not ask for the exemption of the property of Americans. 34 Secretary Fish, in replying to this despatch, stated that Foster's conduct in the matter was judicious and his action was approved. 35 Foster's position on this question of capital taxes was in entire accord with the decision of the 1868 Commission on the subject. On the question of forced loans, however, the position of the Department of State does not seem to have been influenced by the final ruling of the majority of the 1868 Commission. 38 When, in 1877, certain American citizens were subjected to forced loans by military authorities in the state of Chihuahua, Foster filed an immediate protest with the Mexican Foreign Office. In reply, the Minister of Foreign Affairs assured Foster that telegraphic orders would be sent immediately to desist from forced loans against Americans, and that, as soon as the government had sufficient information on the subject of the loans already collected, it would " dictate the proper means to secure the rights " of the Americans affected. There is nothing in the correspondence to indicate that these forced loans were not likewise levied on natives, or that they were unequally apportioned to the prejudice of Americans. Foster subsequently reported that, as a result of the orders issued by the central government, American citizens had not been Foster to Fish, N o . 390, March 11, 1876, M S . Desp. Mex., Vol. 56. Fish to Foster, No. 294, April 4, 1876, M S . Inst. Mex., Vol. 19. 3 6 Note that the forced loans here discussed are those levied by officials of the de jure or de facto governments of Mexico. Those levied by insurgents presented another problem and are discussed in the next chapter dealing with acts of revolutionists. 34

35

FORCED LOANS AND SPECIAL

TAXES

further molested, and that, with the exception of one group of claims the correctness of which was disputed, all of the sums advanced by American citizens had been repaid or adjusted by orders on the customhouses. He added that the government of General D i a z had always been prompt to interpose its orders whenever he had given information as to the levy of forced loans upon Americans by its officials in any part of the Republic, but unfortunately the orders generally had come too late to prevent the enforcement. While the system of forced loans was acknowledged " to be illegal, unequal and unjust," it had grown into a uniform practice in Mexico. He believed that it would be highly beneficial to American interests to negotiate a treaty stipulation specifically exempting Americans and their property in Mexico from this class of taxes, and he felt that such an agreement should be insisted upon before recognition was granted to the D i a z government. With the concurrence of Secretary Evarts in this view, Foster submitted to Vallarta the suggested treaty stipulation exempting Americans from forced loans which has been referred to previously. 37 While these negotiations were proceeding, the Supreme Court of Mexico rendered a far-reaching decision on the question of the power of the Mexican President to levy taxes by virtue of the " ample faculties " which it was the custom of the federal Congress to confer upon the executive in times of disorder. T h e case arose out of the capital tax levied in July, 1876, by decree of President Lerdo referred to above. A Mexican citizen applied to the federal District Court for amparo against the enforcement of this tax, but the court declined to intervene. A f t e r the fall of the Lerdo government the case was taken on appeal to the federal Supreme Court. T h a t court reversed the action of the District Court and decided that the tax levied by virtue of President Lerdo's decree was unconstitutional and could not be enforced. T h e basis of the decision was that the Constitution divided the supreme government into legislative, executive, and judicial branches, and that each of these branches was inde3 7 Foster to Evarts, No. 536, M a y 26, 1877, M S . Desp. Mex., Vol. 59supra, p. 116.

See

F O R C E D LOANS A N D S P E C I A L T A X E S pendent and could not exercise the functions of any of the others. The court held that the power of imposing taxes was exclusively a legislative one and Congress could not delegate or confer this power upon the executive. As Foster pointed out, this decision was in striking contrast with the previous practice of the Mexican government. Almost all special taxes and extraordinary contributions in the past had been levied by executive order by virtue of " ample faculties " conferred by the legislature at the beginning or during the progress of a revolution. The same practice had been followed in all of the states of the Republic. Foster welcomed the decision as one of the " most worthy events of the administration of General Diaz," and stated that if it should be followed thereafter it would prevent some of the most onerous and arbitrary practices of Mexican revolutions. 38 After due consideration of Foster's proposal of a treaty stipulation exempting American citizens from forced loans, Vallarta informed Foster that President Diaz and his cabinet had absolutely declined to make any such agreement. Vallarta argued that the proposition was utterly inadmissible for the reason that if such a treaty exemption were given to citizens of the United States it would have to be extended to the citizens of all the nations with which Mexico had entered into treaties containing the " most favored nation " clause. This would make the condition of foreigners better than that of Mexicans. Foster answered that he was asking for American citizens only what the Mexican Constitution guaranteed to all residents of the country, but Vallarta replied that Mexico " could not make effective its constitutional guarantees to the same extent as the United States or old established governments such as Great Britain and that it ought not to be held so strictly to them, in view of its past revolutionary history." 3 9 On another occasion, Vallarta characterized the decision of the Mexican Supreme Court on the subject of taxation as " one of the Utopian theories of the Magistrate Montez which was utterly impracticable and inapplicable to Mexico and could 38 39

Foster to Evarts, No. 574, July 18, 1877, MS. Desp. Mex., Vol. 59. Foster to Evarts, No. 599, September 2, 1877, MS. Desp. Mex., Vol. 60.

F O R C E D LOANS A N D SPECIAL

TAXES

not be enforced." 4 0 H e admitted that the decision might be a correct interpretation of the Constitution in theory but asserted that it could not be carried out in practice. In a subsequent conference, Vallarta cited in support of his position the decision of Umpire Thornton in the MacManus case holding that, by the T r e a t y of 1831 between the United States and Mexico, American citizens were not exempt from forced loans. Foster, in reply, insisted that this decision only related to forced loans that were levied at the same time and in the same proportion upon all the inhabitants of the country, whether natives or foreigners, and that, b y force of circumstances, forced loans in Mexico were never assessed in that manner. 41 He asserted that they were usually levied in great haste and on a few selected individuals whose property was most available. If these failed to respond, they were imprisoned and sometimes cruelly treated and their property seized and confiscated. Under the circumstances, he argued, even accepting the decision of Umpire Thornton, the Treaty of 1831 did in fact bar the kind of forced loans that were habitually levied in Mexico. In any case, the guarantee of such an exemption to American citizens would be a simple act of justice, which was required by the plain provisions of the Constitution of Mexico as interpreted by its own Supreme Court. In his opinion, it would create no invidious distinction to concede to foreigners what the Constitution itself guaranteed to all. It was the duty of the government of the United States to secure to its citizens in Mexico these rights, and it was the duty of the government of Mexico to provide its own citizens with the protection and rights which its Constitution and laws guaranteed to them. If it could not or would not do this, said Foster, it was an inefficient and bad government and failed in the main object of its mission. Foster's arguments, however, were without avail. Vallarta finally stated that, for the reasons already given, the President 40

Foster to Evarts, enclosure 2 with No. 597, September 4, 1877, MS. Desp.

M C J . , Vol. 60. 4 1 Foster conveniently overlooked the fact that Umpire Thornton had in fact upheld as legal practically all of the forced loans coming before him.

FORCED LOANS AND SPECIAL

TAXES

of Mexico could not agree to Foster's proposal on the subject of forced loans, nor could he, in view of the condition and necessities of the country, conceive of any proposition which he could make with the object of relieving American citizens from forced loans. 42 In view of Mexico's flat rejection of the proposal to enter into a treaty stipulation on forced loans, Foster then proposed the creation of a commission to adjust all claims which had accumulated against the two governments since the Claims Convention of 1868, this Commission to recognize as valid claims, first, all forced loans exacted by either government, second, all claims of American citizens for damages occasioned by the authorities of the Diaz revolution of 1871 and 1872, and, third, any other just and valid claims against either government, upon the basis of the Claims Convention of 1868. It would be further understood that a specific treaty stipulation exempting American citizens from forced loans would be taken under consideration at a time more convenient for Mexico. 4 3 But after discussing this new proposal with President D i a z and his cabinet, Vallarta informed Foster that it could not be accepted. In view of the refusal of the Mexican government to meet the demands of the United States on this and other subjects at issue, recognition of the Diaz government was withheld. 44 In the meantime, however, public sentiment in the United 42

Foster to E v a r t s , enclosure 3 w i t h N o . 597, September 4, 1877, M S . Desp.

M e x . , V o l . 60. 44

43

Ibid.,

enclosure 6.

S u b s e q u e n t l y , F o s t e r t o o k a d v a n t a g e of his friendly social relations w i t h

M r . Z a m a c o n a , f o r m e r l y M e x i c a n Commissioner in the 1868 C l a i m s Commission, t o secure his influence w i t h President D i a z for the f a v o r a b l e consideration of the s u b ject of forced loans as well as of a solution of the other outstanding difficulties.

Fos-

ter states t h a t he " k n e w M r . Z a m a c o n a to be an a d v o c a t e of the principles e n u n ciated b y the S u p r e m e C o u r t and desirous of securing f o r all the inhabitants of M e x i c o exemption f r o m forced loans and military t a x a t i o n . "

T h i s reported atti-

t u d e of Z a m a c o n a ' s is of interest w h e n it is recalled t h a t it w a s o w i n g principally to his o b j e c t i o n t h a t the C o m m i s s i o n of 1868 reversed its p r e v i o u s rulings and disa l l o w e d claims based on forced loans.

A s a result of Foster's i n t e r v i e w w i t h him,

he agreed to suggest t o President D i a z as a settlement of the question of forced loans that the E x e c u t i v e should propose to Congress the e n a c t m e n t of a l a w e m b o d y i n g the principles laid d o w n b y the Mexican Supreme C o u r t m a k i n g all taxes and contributions illegal w h i c h were not levied b y legislative a u t h o r i t y . ' Foster agreed t h a t if V a l l a r t a should m a k e such a proposal to him and w o u l d also m a k e

F O R C E D LOANS A N D SPECIAL

TAXES

States was rapidly veering away from the hostile attitude of the H a y e s administration toward Mexico. T h e impression was growing that the delay in recognizing the D i a z government was adversely affecting American commercial relations with Mexico. D i a z himself did everything he could to foster this feeling, and on several occasions displayed a willingness to grant favorable concessions to American commercial interests. Opposition to the H a y e s policy became articulate in Congress during the fall of 1877, and a concerted attack was launched on that policy from many angles. Secretary Evarts was compelled to appear before the House Sub-Committee on Foreign Affairs to justify the actions of the administration toward Mexico, and Foster was also recalled from Mexico to testify before this Committee. In the course of his testimony, the admission was drawn from Foster that delay in recognizing D i a z had been an obstacle to the development of commercial relations between the United States and Mexico, and that the Diaz government was anxious to develop these relations. 45 Congress did not in fact take any action to repudiate the policy of the administration, but the opposition displayed in the debates on the subject appears to have convinced Hayes of the necessity of modifying his attitude toward Mexico. H e accordingly sent p r o v i s i o n f o r a d j u s t m e n t of c l a i m s of A m e r i c a n s o f f o r c e d l o a n s a r i s i n g o u t o f t h e r e c e n t r e v o l u t i o n s , he w o u l d r e c o m m e n d t o his g o v e r n m e n t t h e a c c e p t a n c e of action as a settlement

of t h e w h o l e q u e s t i o n .

such

Z a m a c o n a made the suggestion

D i a z , b u t t h e l a t t e r i n s i s t e d t h a t he c o u l d m a k e n o s u c h r e c o m m e n d a t i o n t o gress, a n d t h a t it w o u l d n e i t h e r b e a p p r o v e d b y C o n g r e s s n o r s u s t a i n e d b y

to

Conpublic

s e n t i m e n t ( F o s t e r t o E v a r t s , N o . 626, N o v e m b e r 8, 1 8 7 7 , M S . D e s p . M e x . , V o l . 6 0 ) . Z a m a c o n a s u b s e q u e n t l y i n f o r m e d F o s t e r t h a t , in his o p i n i o n , t h e r e a s o n w h y

the

c a b i n e t d i d n o t a c c e p t t h i s s u g g e s t i o n w a s t h a t it c o u l d n o t b e c o n c e a l e d t h a t

the

p a s s a g e of s u c h a l a w w a s r e q u i r e d a s a c o n c e s s i o n t o t h e U n i t e d S t a t e s i n o r d e r t o o b t a i n r e c o g n i t i o n , a n d t h a t t h e k n o w l e d g e of t h a t f a c t a l o n e w o u l d b e f a t a l t o its enactment.

T h e M e x i c a n s , w h o in p a s t t i m e s h a d s u b m i t t e d t o t h e g r e a t e s t i n t e r n a l

t y r a n n y , h a d , said Z a m a c o n a , a l w a y s been intensely sensitive as to the

protection

o f the n a t i o n a l h o n o r f r o m t h e s u p p o s e d o r real a s s a u l t s o f f o r e i g n n a t i o n s . o p p o n e n t s of to take

Diaz

advantage

fully of

u n d e r s t o o d this n a t i o n a l

it under

any

pretext.

This

characteristic fact

required

and stood great

care

p r u d e n c e o n t h e p a r t of t h e n e w A d m i n i s t r a t i o n in its r e l a t i o n s w i t h t h e States.

Foster

t o E v a r t s , C o n f i d e n t i a l , N o . 629, N o v e m b e r

The ready and

United

12, 1 S 7 7 , M S .

Desp.

M e x . , V o l . 60. 45

T h i s t e s t i m o n y is f o u n d in M S . D e s p . M e x . , V o l . 6 1 .

pp. 304-307.

S e e a l s o R i p p y , op.

cit.,

FORCED LOANS AND SPECIAL

TAXES

Foster back to Mexico with instructions to extend recognition to the Diaz government, even though none of the demands made as a condition of that recognition had been granted.

Foster complied

with these instructions on April 9, 1 8 7 8 . After recognition had been granted, Foster continued

his

efforts to obtain a settlement of outstanding issues, but he found the Diaz government as firmly opposed to his demands as ever. Under the circumstances, he did not attempt to reopen the general discussion of a treaty agreement exempting American citizens from forced loans in Mexico, but awaited an opportunity to take up the question of Mexico's legal liability on forced loans in connection with a particular claim.

This opportunity came in the

case of Walter Henry, which arose a few months later. During the successful Diaz revolution in 1 8 7 6 , Walter Henry, an American citizen, had been compelled to pay certain sums as forced loans to military officials acting in support of the D i a z cause.

He subsequently endeavored to secure repayment of these

loans, both from the authorities in Chihuahua and from the federal government, but without success.

In 1 8 7 8 he was murdered

by bandits while on his w a y to Saltillo with three wagon loads of merchandise and his property was subsequently seized by some petty Mexican officials and divided among themselves.

While

there was no indication that the officials were implicated in the murder itself, the taking of Henry's property was apparently without any justification.

Upon receipt of a report of the facts of the

case, Secretary Evarts instructed Foster to demand a searching investigation b y the Mexican government. 46 Foster saw in this case an admirable opportunity to reopen the question of forced loans.

Accordingly, he not only demanded

an immediate investigation of the killing of Henry and the seizure of his property, but also presented a demand for the repayment of the forced loans exacted from Henry several years prior to his murder.

In the subsequent correspondence, the murder of Henry

was lost sight of and the discussion centered wholly upon the question of forced loans. In reply to Foster's representation, the Mexican 48

Foreign

Evarts to Foster, No. 505, September 1 1 , 1878, MS. Inst. Mex., Vol. 19.

F O R C E D LOANS A N D SPECIAL

TAXES

Office not only denied all liability for the repayment of the loans but likewise denied the right of the American government to present the claim through diplomatic channels. On this subject the Mexican Minister of Foreign Affairs expressed himself as follows: Y o u r Excellency will permit me to state and here make plain that it is a principle of international law universally admitted, that the person who establishes himself in a certain country, subjects himself by this a c t to the laws existing there, and performs an act of tacit submission to the regulations and practices in force; and this could not reasonably be otherwise, since, on the contrary, it would result that the condition of the foreigner would not only be different but better and more favorable than that of citizens.

This

principle being recognized, as without any doubt whatever it is by

Your

Excellency, the intervention which you now claim in the matter of Walter H e n r y can not be permitted except in the case of a denial of justice, or the pronunciation of a sentence which should be in notorious violation of the laws.

A s in the case of Walter Henry such antecedents have not only not

taken place, but it has not even been presented before the Mexican tribunals, nor has the Republic given occasion for discussion respecting that which has just been submitted to its authorities and is now pending examination, the President has communicated to me instructions to say to Y o u r Excellency that in virtue of former decisions it is not possible for him to admit the diplomatic intervention of Y o u r Excellency in the present state of this matter, although, as I had the honor to inform you in m y former note, it has been submitted to the D e p a r t m e n t of Finance, which without doubt, will take it into consideration in the character of the collection of a credit against the

national

treasury. 4 7

In reply to this note, Foster insisted that the Henry case represented a clear denial of justice. Henry, said Foster, had been compelled by force to pay the loans demanded of him and had had no opportunity to appeal to the courts for redress. T h e revolutionary authorities had overthrown the local tribunals, and the judges had fled or concealed themselves upon the establishment of a new government. Henry had appealed to the authorities in Chihuahua and also to the federal Minister of the Treasury for reimbursement, but nearly twelve months had passed without even a preliminary answer being given to him. Upon his death, 4 7 Avila to Foster, October 9, 1878, enclosure with Foster to Evarts, No. 827, November 2, 1878, MS. Desp. Mex., Vol. 6s.

146

F O R C E D LOANS AND SPECIAL

TAXES

his claim had been taken up diplomatically by the Legation. Foster insisted that there was nothing unusual in this mode of procedure. Even admitting that Henry's heirs should, under ordinary circumstances, be required to institute legal proceedings to recover the forced loans, Foster contended that in this case there was no one against whom such a suit could be brought. One of the generals who had levied the loans against Henry was dead, and another general was then Governor of Chihuahua. Would the Mexican government expect proceedings to be instituted against the latter? Would it be probable that any tribunal in that State would mulct the man, who was the chief instrument in establishing the very government which gave it existence, and especially for the acts which gave the revolution resources to triumph? Y o u r Honor can hardly mean that the heirs of the murdered Henry shall seek to bring the Republic into court, and prosecute a suit against it on these claims? T h e simple asking of these questions is their own answer. I t is well known that the universal proceeding in the collection of these claims is through the Executive department of the Federal government.

Foster also protested against the position of the Mexican government that the claim of Henry, if established, should be treated as a part of the interior debt of Mexico, since that debt had no market value and there was no early prospect of payment of either principal or interest. Such action, said Foster, would be regarded by his government as " virtual confiscation." In this, and in all similar cases, the United States would expect the government of Mexico " to make full reparation for all the losses and damages sustained by American citizens at the hands of its military authorities." The argument that such a course would make the condition of foreigners in Mexico better than that of Mexican citizens had no force with the government of the United States. I t is enough for it to know that American citizens are treated with cruelty and outrage by military authorities, and in an arbitrary and illegal manner that their money and property are forced from them under military duress. M y government is not required in such cases to investigate whether same injuries and wrongs are inflicted upon Mexican citizens.

the

I t would

FORCED

LOANS

AND

SPECIAL

TAXES

147

be a source of regret to know that the established and recognized government of Mexico had not the power and the sense of justice to right the wrongs of its own citizens. But the government of the United States would not, on this account, fail to protect its own citizens in Mexico and require a reparation of those outrages and damages sustained by them at the hands of those who inflicted them, now the constituted authorities of Mexico. 48 F o s t e r transmitted copies of this correspondence to the D e partment of State, but got little encouragement in pursuing the argument.

Secretary E v a r t s w a s in no mood at that time to

attempt further coercion of the D i a z government.

lie

merely

stated in reply that, although the Supreme C o u r t of M e x i c o had decided against the pretensions of its own government on the subject of forced loans, so long as the President of M e x i c o disregarded that opinion it would seem that no beneficial results could be expected from a prolonged diplomatic discussion of the subject. 4 9 I n the meantime, M r . A v i l a , the M e x i c a n Minister of Foreign A f f a i r s , had replied at length to Foster's arguments on the subject of forced loans.

H e stated that, while the M e x i c a n govern-

ment deplored the circumstances that made necessary the imposition of forced loans and extraordinary taxes, it could not admit that American citizens should be considered exempt from exactions levied on other inhabitants of M e x i c o .

Although the

Supreme Court had in one case denied the legality of such taxes and loans when imposed b y the executive power, " the nation and its representatives " entertained a different opinion on the subject, and the decision of the Supreme Court in one instance could not be accepted as a general declaration.

B u t while the government

sustained the principle that A m e r i c a n citizens were subject to forced loans and extraordinary taxes, it did not approve of the resort to personal violence in putting such exactions into effect. A n y o n e employing such violence would incur personal responsibility to the injured persons.

B u t only when the latter

had

brought a complaint before the competent authorities and such 46 Foster to Avila, Octobcr 22, 1878, enclosure with Foster to Evarts, No. 827, November 2, 1878, M S . Desp. Mex., Vol. 63. 49

E v a r t s to Foster, N o . 542, November 22, 1878, M S . Inst. Mex., Vol. 19.

x48

FORCED LOANS AND SPECIAL

TAXES

complaint had been unheeded, " constituting a case of notorious denial of justice," would there be any occasion for diplomatic intervention.

Furthermore, the Mexican government was disposed

to recognize that persons who had been subject to forced loans by its agents or military authorities should be reimbursed, and had initiated a law for the adjustment of such debts; but the government was not disposed to establish any preference whatever in the payment of foreign citizens over natives on this subject. M r . Avila insisted that the protection which the Mexican government owed to American citizens under the T r e a t y of 1 8 3 1 consisted only in the requirement that the courts of Mexico should be open to them in the same manner as to native citizens.

In sup-

port of this position he cited the opinion of Commissioner W a d s worth in the case of Salvador Pratz v. United States before the Claims Commission of 1 8 6 8 .

In that case (which was a claim

of a Mexican citizen against the United States), Wadsworth had expressed the opinion that the two governments had not, b y the T r e a t y of 1 8 3 1 , agreed " to concede to foreigners a greater and more efficacious protection than that due in justice to their own citizens," nor to establish inequality between citizens and foreigners respecting the manner or means of reparation due for damages which might be occasioned in person or property. 50 M r . Avila held that, under this interpretation of the Treaty of 1 8 3 1 , the United States had no right to demand that its citizens should be reimbursed for forced loans by the Mexican government ahead of Mexican citizens. 51 In view of the instructions he had received from Evarts, Foster refrained from pressing the issue further.

He merely stated

that he did not consider it profitable to discuss at length the points presented by M r . Avila unless an assurance were given that it was the desire of the Mexican government to take up the question with a view to reaching an international agreement thereon.

Such

an agreement the United States considered as of essential im50

Wadsworth had of course entertained a different view in the claims of American citizens against Mexico. 01 Avila to Foster, December 6, 1878, enclosure with Foster to Evarts, N o . 850, December io, 1878, M S . Desp. Mex., Vol. 65.

FORCED LOANS AND SPECIAL

TAXES

portance to the maintenance of cordial relations between the two governments. T h e claim of exemption from forced loans which the United States made in behalf of its citizens was " a right recognized by all nations ruled by a constitutional system of government which embraces the legislative power." It was an exemption which Mexico had in times past conceded to the subjects of other nations and which the Supreme Court of Mexico had declared to be the right of every inhabitant of the Republic. While this decision of the Supreme Court had been given in a single case, it was, said Foster, an interpretation of the Mexican Constitution for the entire nation and for all branches of the government, and should have great weight with the D i a z administration, especially since the court had been created b y the same revolution that had brought that administration into power. 52 In transmitting this correspondence to Evarts, Foster stated that it would probably close the discussion on the subject and that this would result in the rejection of the intervention of the United States on behalf of Mr. Henry's claim, unless the Department thought it proper to instruct him to prosecute it further and indicated what steps he should take to that end. He added that if the government of the United States regarded it as important or desirable to secure for its citizens exemption from the continual forced loans and military exactions to which they were subject, the case of Henry afforded a fitting occasion." Shortly afterward, a revolutionary outbreak occurred in Mexico, during the course of which several Americans were subjected to forced loans by military officials of the federal government. Foster reported these cases to the Mexican government and asked for redress, but, doubtless as a result of the general discussion of the subject that had just taken place, the Diaz government no longer showed any disposition to grant relief in such cases. When Secretary Evarts was informed of this fact, he wrote to Fester that it was difficult to find a case of onerous wrong more deserving of immediate and earnest attention on the part of the Foster to Avila, December 9, 1878, enclosure with Foster to Evarts, No. 850, December 10, 1878, M S . Desp. Mex., Vol. 65. 5 3 Foster to Evarts, No. 850, December 10, 1878, MS. Desp. Mex., Vol. 65. 52

FORCED LOANS A N D SPECIAL

TAXES

government of Mexico. T h e United States, said Evarts, was loath to attribute the inaction and refusal of reparation by the Mexican government in this class of cases to absolute unfriendliness. It was more charitably disposed to assume that the existing administration of Mexico " shares in the strange inability of its predecessors to perceive how contrary to right and how damaging to the interests of the country itself, is its persistent denial of relief in such cases." T h e Diaz administration had given striking proof of its desire to invite foreign capital and trade to Mexico, and yet it was blind to the fact that such foreign capital and commerce, when attracted there, were "crushed between the upper and the nether millstones of revolution." T h e y were forced by unlawful exactions to give material aid, first to the insurrectionary party and then to the legitimate government, and could look for no redress from either party. T h e point at issue, he said, rose above the mere fluctuating responsibilities of party contentions. T h e rights of American citizens in Mexico were, both by treaty and the universal law of nations, a sacred trust for which the Mexican nation must be held responsible. He instructed Foster to renew his representations in the matter and to obtain, if possible, an assurance from the Mexican government of its willingness to take up the subject with a view to reaching an international agreement thereon." But Foster found no disposition on the part of the Diaz administration to reopen the discussion, and the matter was accordingly dropped. This abandonment of the issue of forced loans by the government of the United States seems to have resulted partly from the fact that the resources of diplomacy had failed to break down the resistance of the Mexican government to the demands of the United States and partly from the fact that the firm establishment of the Diaz régime in power in Mexico promised a cessation of the practice of imposing forced loans. With the lessening of the evil itself, the government of the United States appears to have lost interest in the theoretical aspects of the issue. T h a t this did not represent a change of view on the legal situation is shown by the fact that in a subsequent discussion of the question 54

Evarts to Foster, No. 625, April 24, 1879, MS. Inst. Mex., Vol. 19.

FORCED LOANS AND SPECIAL T A X E S

151

of forced loans with another Latin-American government, the Department of State maintained its former position on this subject." 65 See Bayard to Buck, Minister to Peru, No. 65, May so, 1886, MS. Inst. Mex., Peru, Vol. 17, quoted in Moore, International Law Digest, Vol. VI, pp. 917918.

CHAPTER REVOLUTIONARY

VI DAMAGES

T H E dispute over forced loans described in the last chapter w a s concerned for the most p a r t w i t h exactions levied b y civil and military officials of de jure or de facto

governments of M e x i c o .

A similar dispute arose at the same time over the question of the responsibility of the established government for forced loans imposed on foreigners b y insurgent forces.

T h i s issue w a s quite dif-

ferent f r o m the former one since it involved the larger question of the international responsibility of legitimate governments for acts of revolutionists. T h e immediate occasion for the discussion of this larger question arose out of the imposition on several American citizens in M o n t e r e y of forced loans b y the rebel General T r e v i n o , w h o w a s connected w i t h the unsuccessful D i a z revolution of 1 8 7 1 .

During

that o u t b r e a k , General T r e v i n o succeeded in establishing de facto control over the state of N u e v o L e o n and in maintaining such control for over a y e a r .

W h e n the forced loans in question were first

imposed, the A m e r i c a n Consul at M o n t e r e y , w h o was himself one of the victims, asked instructions from the D e p a r t m e n t of State as to the proper course to t a k e in the matter.

H e w a s informed

in reply that the D e p a r t m e n t preferred that American citizens should " r e f u s e peremptorily " to p a y the moneys demanded of them.

N e v e r t h e l e s s , they w e r e forced b y coercive measures of

the revolutionary authorities to give up various sums of money for the revolutionary cause. 1 W h e n the revolution w a s finally suppressed, a decree was issued b y the central government granting general amnesty to the revolutionists, b u t stating at the same time that they were responsible to third parties for their acts.

W h i l e this clause appar-

Ulrich to Foster, July 8, 1873, enclosure with Foster to Fish, No. 17, July 25, 1873, MS. Desp. Mex., Vol. 49. 1

152

REVOLUTIONARY

DAMAGES

ently provided a remedy at law for those who had suffered injuries a t the hands of the revolutionists, Consul Ulrich reported that it w a s an illusory one, since it was quite impossible to obtain a judgment against any of the leaders of the revolution in the local courts. In 1 8 7 2 , M r . J a m e s A . Langstroth having filed a claim with the Department of State for the repayment of forced loans exacted f r o m him by the insurgents at Monterey, Secretary

Fish in-

structed Nelson to present the case to the Mexican government and to ask for reparation.

Subsequently Consul Ulrich presented

his own claim for similar losses to Nelson's successor, Foster. Foster wrote to the Department that Ulrich's claim was only one of a large number of similar claims for losses sustained at the hands of the insurgent forces, and he asked specific instructions as to the position he should take in regard to such claims in general. In reply, Secretary Fish stated that there was " no doubt of the accountability of the Mexican government pursuant to public l a w . "

If a country received strangers within its limits it

thereby incurred a liability to protect them from violence " not only on the part of its own authorities, but ordinarily also from violence on the part of insurgents."

This latter ground of liabil-

ity, said Fish, might be regarded as continuing at least until the government of a neutral country whose citizens might suffer damage in the course of the hostilities should recognize the insurgents as entitled to belligerent rights.

N o such recognition had taken

place by the United States in the present instance.

T h e rule of

international law on the subject was that " the government which refuses to repair the damage committed by its citizens or subjects, to punish the guilty parties or to give them up for that purpose, may be regarded as virtually a sharer in the injury and as responsible therefor."

It was not necessary, however, to rely on

this rule in the present case, said Fish, since Article 8 of the Treaty of 1 8 3 1 stipulated that the " effects " of the citizens of the two governments should not be detained " for any public or private purpose whatsoever, without corresponding compensation," and this promise did not except the case where such detention

154

REVOLUTIONARY

DAMAGES

might be made by an insurgent chieftain.

The 14th Article of the

treaty also contained an express stipulation for the protection of the persons and property of the citizens of one nation within the jurisdiction of the other, and this stipulation was likewise unreserved, except that redress was to be sought through the courts. Such redress might be sufficient in time of peace, " but when the courts themselves are closed by arms, and even when peace may be restored, the authors of the injuries are notoriously incapable of making amends, even if sought through the judicial channel, the government itself must be held to be directly accountable." " T h e presentation by Foster to the Mexican government of this position of the Department of State on the subject of revolutionary claims initiated a long and elaborately argued correspondence on the whole subject.

Lafragua, who was Minister of Foreign A f -

fairs in the Lerdo government, took the general position that nations were not responsible for damages to foreigners sustained at the hands of revolutionists.

He sought to establish this principle

by reference to authorities on international law, to the actual practice of nations, and especially to the position taken by the United States in the case of its own Civil W a r .

The general tenor of his

argument was that foreigners locating in a country accepted the mode of life of the people of that country and participated not only in the benefits of such residence but also in the adversities. Foreigners should enjoy the same guarantees and the same legal protection as natives, but no more.

It was a principle universally

recognized, he said, that governments were answerable for the acts of individuals only " when they do not prevent their misdeeds, having it in their power to do so; when they tolerate them; and when they fail to punish the delinquent";

but such principle

obviously did not apply in the case of revolutionists, since there could be no question of the government tolerating their acts. T h e basis of responsibility of the government in any case was the right which all the inhabitants of a country had to the protection of the government.

Accordingly, if foreigners had a right to

indemnification in cases of rebellion, native citizens would have the same right. 2

In such cases " what treasury would be full

Fish to Foster, No. 21, August 15, 1873, MS. Inst. Mex., Vol. 19.

REVOLUTIONARY enough to satisfy the claimants? "

DAMAGES

155

T h e rich treasury of the

United States would probably not suffice to meet the damages caused by the Civil W a r , and unless the mines of Mexico were inexhaustible, they would not be sufficient to repair the evils caused by sixty years of internal strife. In support of his argument, Lafragua referred to the recently published work of Calvo and to the incidents cited by that author in support of the non-responsibility of governments for the acts of insurgents.

L a f r a g u a also referred to the fact that, in the

negotiations leading up to the Claims Convention of 1868, the Mexican government had proposed to Secretary Seward the inclusion of a provision expressly excluding claims arising from revolutions and the intervention of 1 8 6 1 , and that Seward had stated that, while he preferred not to make any express exclusion, " he would have no objection to the preamble being drawn in terms which would virtually exclude such claims, and moreover that the United States were especially interested in sanctioning that principle, in order not to be held responsible for the acts of the Southern insurgents."

Lafragua referred to the fact that the

Commission of 1868 had rejected claims founded upon damages caused by the agents of the Miramon government in Mexico and the government of Maximilian.

It had also held that the United

States was not responsible for damages sustained during the Civil W a r within the territory in which hostilities had taken place. These decisions had been drawn up by consent of both of the national Commissioners, and almost all of them had been written by the Commissioner of the United States, M r . Wadsworth. 3 In reply to Lafragua's note, Foster stated that the decision of the President of Mexico on the claims was so contrary to that which the government of the United States evidently expected, that it would be necessary to communicate that decision to his government before answering it in detail.

A t the same time,

Foster endeavored to refute certain of Lafragua's arguments. Whereas L a f r a g u a sought to bring the case under the general principle that a nation was not responsible for acts which it did 3 L a f r a g u a to Foster, November 1 3 , 1873, trans, enclosed with Foster to Fish, No. 72, November 22, 1873, M S . Desp. Mex., Vol. 5 ° .

156

REVOLUTIONARY

DAMAGES

not itself cause or tolerate, Foster relied on the general principle advanced by Fish that a country receiving strangers within its limits thereby incurred a liability to protect them from violence. H e referred to the precedent of the riots in N e w Orleans in 1 8 5 1 cited b y Calvo ( " a recent and not yet accepted writer on international l a w " ) in support of the theory of the non-responsibility of states for acts of insurgents, and asserted that this incident was in fact a precedent in favor of the American claims against Mexico, since the United States had actually paid indemnities in that case. 4 In his reply to Foster's note, L a f r a g u a did not fail to point out that the indemnities paid by the United States in the case of the N e w Orleans riots had been made as a matter of grace and not of law, and hence could not be considered as supporting the American position that Mexico was legally liable for revolutionary damages.

A s for establishing a precedent for payment

as an act of grace, the situation in Mexico was quite different from that of the United States.

T h e national treasury would not

suffice to answer for the damages caused during insurrections in Mexico.

If American citizens were reimbursed in this case, as

an act of friendship, Mexican citizens would be equally entitled to reimbursement, and this would be impossible. 5 Secretary Fish, after considering the lengthy argument of the Mexican government on the subject, maintained his position that Mexico was liable for the acts of insurgents.

In his instructions

to Foster he made a general statement regarding the duty of nations to protect foreigners from violence which has since become a classical citation on the general subject of responsibility. T h a t statement was as follows: It may, in general, be true that when foreigners take up their abode in a country, they must expect to share the fortune of the other inhabitants and cannot expect a preference over them.

While, however, a government m a y

construe according to its pleasure its obligation to protect its own citizens 4

Foster to Lafragua, November 21, 1873, enclosure with Foster to Fish, No. 72, November 22, 1873, MS. Desp. Mex., Vol. 50. 5 Lafragua to Foster, December 6, 1873, trans, enclosed with Foster to Fish, No. 83, December 13, 1873, MS. Desp. Mex., Vol. 50.

REVOLUTIONARY

DAMAGES

iS7

from injury, foreign governments have a right and it is their duty to judge whether their citizens have received the protection due to them pursuant to public law and treaties. It may be the abstract right of a government to exclude foreigners entirely from its territories. This right, however, has rarely been exercised in modern times. Whenever it is waived, this step imparts to the government to whom the foreigners may owe their allegiance, the right of seeing that the duty of the other government towards them is fulfilled. An acknowledgment of this right is not, under the circumstances, as Mr. Lafragua seems to suppose, tantamount to making unjust and invidious discriminations in favor of foreigners and against citizens. It cannot be acknowledged, as Mr. Lafragua maintains, that diplomatic interference in such cases necessarily annihilates or trenches upon the peculiar functions of the judiciary of a country. In cases of a denial of justice the right of intervention through the diplomatic channel is allowed, and justice may as much be denied when as in this case, it would be absurd to attempt to seek it by judicial process, as if it were denied after having been so sought. Fish sought to distinguish between the American Civil W a r and the unsuccessful insurrection in M e x i c o in

1871

on

the

ground that belligerent rights had, tacitly at least, been granted to the insurgents in the former case, not only b y the government of the United States but also b y the principal European nations, whereas no such acknowledgment had been made b y the M e x i c a n government in the case of the insurgents in the state of N u e v a Leon.

Such a recognition, said Fish, carried with it an acknowl-

edgment that the party in whose f a v o r it was made w a s " b o t h competent and willing to do justice to the citizens or subjects of the grantor," and such acknowledgment might of itself be allowed to exempt the other party from accountability.

Fish also denied

the assertion of L a f r a g u a that nonresponsibility for the acts of insurgents w a s acknowledged both in E u r o p e and the United States.

H e questioned the authority of C a l v o ' s work on inter-

national law, which, " though generally remarkable for both clearness and fullness, requires scrutiny upon a point which, as

a

Spanish American he m a y be regarded as deeply interested in maintaining."

Concerning the denial of accountability b y the

United States for injuries to foreigners b y insurgents in the Civil W a r , Fish regarded this as " justified b y the magnitude of that conflict " and especially b y the fact that foreigners who had been

158

REVOLUTIONARY

DAMAGES

so injured were citizens or subjects of countries that had acknowledged the insurgents as belligerents. He accordingly concluded that the Mexican government was both morally and legally bound to reimburse Mr. Ulrich and Mr. Langstroth for the sums exacted from them by the insurgents at Monterey. 6 Secretary Fish's note was transmitted by Foster to Lafragua, who in due course endeavored to refute each one of the points of Fish's argument. He admitted that the government of the United States had the right to judge whether its citizens were duly protected or not, but stated that it did not follow from this that the Mexican government was obliged to protect Americans more than Mexicans. He reiterated the defense that, if the Mexican government afforded to foreigners the same protection as to Mexicans, it had faithfully complied with its treaty stipulations and with the law of nations, and that any contrary principle would establish an odious privilege in favor of foreigners. It was true, he said, that when justice was denied, diplomatic action might be employed, but it was equally true that there could be no denial of justice when " in virtue of a private opinion, the exercise of a right before the Courts is omitted." Regarding Secretary Fish's statement that recognition of the belligerency of insurgents released the central government from responsibility for their acts, Lafragua argued that such recognition should have precisely the opposite effect. B y granting belligerent rights to a rebel, the legitimate government invested him with a certain public character. It converted " the criminal nucleus into a political entity." A government that triumphed over a belligerent substituted itself for the latter, and as a successor it must answer for the obligations contracted with its acquiescence. Otherwise, merely by recognizing a rebel as a belligerent, governments could free themselves from all responsibility. The foundation of responsibility, said Lafragua, was the obligation which governments had to protect all the inhabitants of the country, whether natives or foreigners, but this obligation was limited to the realm of the possible. When a government found itself unable to render effective protection to individuals, there 6

Fish to Foster, No. 54, December 16, 1873, MS. Inst. Mex., Vol. 19.

REVOLUTIONARY

DAMAGES

could be no just reason to sustain an obligation the fulfillment of which was really impossible. 7 In reply to Lafragua's arguments, Cadwalader, Acting Secret a r y of State, reverted to the argument that Mexico's liability for acts of insurgents arose out of Article 8 of the Treaty of 1 8 3 1 , which stipulated that the effects of the citizens of either nation should not be liable to detention for any public or private purpose without corresponding compensation.

He said that the stipula-

tion was general and unqualified and did not make any exception in the case of forced loans exacted by insurgents.

Cad-

walader acknowledged that, usually by public law and even by treaties, foreigners were not allowed greater immunity than citizens.

Exceptions to the general rule, however, were sometimes

made by treaty, and he argued that Article 8 of the Treaty of 1 8 3 1 might justly be construed as intending to create such an exception.

Insurgent leaders and even the authorities of the fed-

eral government might demand forced loans from Mexicans without any intention of repaying them, but when such a demand was made of American citizens, compensation would be expected in pursuance of the treaty. Regarding Lafragua's contention that diplomatic intervention was not in order because the victims of the forced loans in question had made no application to the Mexican judicial authorities for relief, Cadwalader stated that such might be the case if the loans had been voluntary, but that when money was taken under threats of violence by an insurgent chieftain, the victim could not be expected to look for redress to the ordinary tribunals.

In

such cases, justice to the injured party would so certainly be denied that recourse to diplomatic intervention might as well be adopted at once.

Cadwalader conceded that, by public law, for-

eigners in a country in a state of insurrection could not expect to be indemnified for all losses sustained from insurgents.

How-

ever, he thought that the case of a forced loan was an exception. Where the borrower was a sovereign, his obligation to repay the amount was as sacred as that of a private individual. 7

If he was

Lafragua to Foster, August n , 1874, trans, enclosed with Foster to Fish, No. 172, August 20, 1874, MS. Desp. Mex., Vol. 52.

i6o

REVOLUTIONARY

DAMAGES

an insurgent, who, for a time, usurped the regular authority, the sovereign might justly be expected to make it good if the loan was an involuntary one.8 It is of interest to compare the position of the Department of State in this case with the position it took at approximately the same time in discussions with other countries on the subject of responsibility for acts of insurgents. A few years previously, Secretary Seward, in response to a claim of an American citizen against the government of China for property destroyed b y rebels, stated the position of the United States as follows: It is a w e l l e s t a b l i s h e d principle of i n t e r n a t i o n a l l a w m a i n t a i n e d b y this G o v e r n m e n t in t h e c o n s i d e r a t i o n of c l a i m s of its c i t i z e n s a g a i n s t f o r e i g n s t a t e s a n d o f f o r e i g n e r s a g a i n s t the U n i t e d S t a t e s , t h a t no g o v e r n m e n t can b e h e l d r e s p o n s i b l e f o r t h e a c t s o f r e b e l l i o u s b o d i e s of m e n , c o m m i t t e d in v i o l a t i o n o f its a u t h o r i t y w h e r e it is itself g u i l t y of n o b r e a c h of g o o d f a i t h o r o f n o n e g l i g e n c e in s u p p r e s s i n g

insurrection.9

T w o years earlier, in conversations with the Prussian government regarding the settlement of claims of Prussian subjects arising out of the Civil War, Secretary Seward stated that a government was not liable for injuries committed by insurgents, provided it adopted " expedient and available measures to suppress the rebellion." Law-abiding neutrals, he said, had under the law of nations " exactly the same claims for indemnity against the government concerned, as citizens of that country have, and no other or greater rights to indemnity." It was enough that the government honestly, diligently, and energetically put forth proper efforts for the suppression of the insurgency, and in that w a y gave the best protection it could afford to the lives and property which were threatened by the insurrection. In response to a remonstrance made by the Prussian Minister concerning the policy pursued by the United States regarding insurrections in Mexico and the South American republics, Secretary Seward stated as follows: 8

C a d w a l a d e r to Foster, No. 141, September 22, 1874, M S . Inst. M e x . , Vol. 19.

9

S e w a r d to Smith, July 9, 1868, Moore, International

P- 956.

Law

Digest,

Vol. V I ,

REVOLUTIONARY DAMAGES

161

T h e undersigned is not now to vindicate all or even any of the proceedings of the United States in regard to those republics throughout their brief but v e r y eventful history. It is proper, however, to say, that in those proceedings the United States have held the government in each of those republics responsible only for the injuries committed, or inexcusably allowed by itself, or b y some preceding government, which for the time was in actual possession and exercise, whether legally or not, of the supreme power of the state. The undersigned must explicitly deny that the late rebels against the United States either were advanced to or suffered by the people of the United States to assume sovereignty here or that they ever in fact did become a government, or political authority, or power over, or within the territory of the United States. They were for a short period treasonable insurgents and nothing more. 1 0

In view of the fact that, in the note referred to above, Cadwalader rested the whole case of the United States on Article 8 of the Treaty of 1831, it is of interest to note that Secretary Evarts subsequently admitted that there was no article in the treaty expressly exempting American citizens in Mexico from forced loans, and that the purpose of that treaty appeared in general to have been to place American citizens on the same footing as Mexicans in this regard. 11

D E C I S I O N S OF T H E C L A I M S C O M M I S S I O N

OF

1868

The decisions of the Claims Commission under the Convention of 1868 in general supported the position of the Mexican govern10

S e w a r d t o B a r o n Gerolt, Prussian Minister, J a n u a r y 9, 1866, ibid.,

p. 958.

It is likewise interesting t o compare this position of Secretary S e w a r d w i t h t h a t taken by the D e p a r t m e n t of State in the note of C a d w a l a d e r referred t o a b o v e .

In

that note C a d w a l a d e r had sought to j u s t i f y Secertary Webster's denial of responsibility of the government of the United States for the damages done in the N e w Orleans riots on the ground that " instead of being an organized rebellion headed by persons of distinction h a v i n g for its object the o v e r t h r o w of existing a u t h o r i t y , that riot w a s a mere sudden ebullition of c o m p a r a t i v e l y obscure i n d i v i d u a l s f o r the purpose of destroying p r o p e r t y rather than for that of extorting m o n e y for objects of rebellion."

Secretary Fish, in seeking to hold M e x i c o liable f o r the acts of the

insurgents of 1871 and 1872 while denying the responsibility of the U n i t e d States f o r acts of the C o n f e d e r a t e authorities, placed the distinction on the ground of the magnitude of the latter conflict and the f a c t that

belligerent

granted t o the insurgents in t h a t case but not in the former case. 11

See M o o r e , International

Law Digest, V o l . V I , p. 917.

rights h a d

been

REVOLUTIONARY

162

DAMAGES

ment rather than of the United States on the question of responsibility for acts of insurgent authorities. T h a t Commission released the Mexican government from all responsibility for acts of authorities of the Miramon and Maximilian régimes, and even for the acts of the government of Zuloaga, although the United States had recognized that government for a time as the de jure government of Mexico. 1 2 T h e American Commissioner concurred in this decision as well as in the decision in the case of Salvador Pratz v. United States, in which it was held that the United States was not responsible for acts of the Confederate authorities in the Civil War. Wadsworth's position on this general question was undoubtedly affected by the fact that the United States had itself just emerged from a long civil war, and it was of the greatest importance to avoid any implication of legal liability of the federal government for acts of the Confederate authorities. In support of this position, Wadsworth advanced a number of arguments that were contrary to those relied upon by Secretary Fish in the Langstroth and Ulrich claims and were similar to the arguments of Lafragua in refutation of Fish's position. Thus Wadsworth held that the provisions of the T r e a t y of 1831 obliging each government to protect the citizens of the other in its territory were merely designed to place such citizens on a basis of equality with natives in this respect. He asserted that neither government had agreed by the treaty to afford any more protection to strangers within its borders than was justly due to its own citizens, or to establish any inequality between citizens and strangers in the mode or measure of redress for injuries to persons or property. Wadsworth likewise denied that the failure of the Mexican government to recognize the Confederate States as belligerents had any effect on the nonresponsibility of the United States in the matter. He held that such nonresponsibility resulted from the fact of belligerency itself, whether recognized or not by other governments. He asserted that the principle of nonresponsibility for acts of rebel enemies in time of civil war rested upon the 12

See Joseph H. Cuculla v. Mexico, Docket N o . 779.

REVOLUTIONARY

DAMAGES

163

ground that the latter had withdrawn themselves by force of arms from the control and jurisdiction of the sovereign, " putting it out of his power, so long as they make their resistance effectual, to extend his protection within the hostile territory to either strangers or his own subjects, between whom, in this respect, no inequality of rights can justly be asserted."

H e added that " we

are not aware of an instance where such claims have ever been conceded by any nation able to protect itself, or at liberty to refuse such unjust demands."

T o admit the principle of respon-

sibility " would place just governments driven to the employment of arms for the suppression of wicked attempts at their overthrow, under serious disadvantages, and very much strengthen and embolden the cause of insurrection."

13

T h e distinction sought to be drawn by Secretary Fish between the relative magnitudes of the American Civil W a r and the unsuccessful Diaz revolution of 1 8 7 1 and 1 8 7 2 found little support in the decisions of the 1 8 6 8 Commission.

In a few earlier cases,

Umpire Lieber held Mexico responsible for the acts of certain of its military officials who were temporarily out of the control of the central government. 14

These cases, however, arose out of

local conflicts between military officials for local control, and were not in the nature of insurrections against the central government.

Sir Edward Thornton, who succeeded Lieber as Umpire,

invariably held that Mexico was not responsible for the acts of rebels.

In doing so, he did not, as a rule, even go into the ques-

tion of the extent of the rebellion.

So long as it appeared that the

authorities complained against were in insurrection against the federal government, that was a sufficient ground for dismissing the claim. 15

Wadsworth dissented in some of these cases on the

ground that the losses were sustained during local disturbances which did not reach a state of war and Mexico should be held 13

Salvador Pratz v. the United States, Docket No. 748. '•* See Rafael M. Miller v. Mexico, Docket No. 490; Franz Eigendorf v. Mexico, Docket No. 581. 15 See for example Franklin Cummings v. Mexico, Docket No. 963; Joseph Walsh v. Mexico, Docket No. 383; Heirs of Hugh Divine v. Mexico, Docket No. SS3; Benjamin H. Wyman v. Mexico, Docket No. 9 1 1 ; and numerous others cited in Moore, International Arbitrations, Vol. I l l , pp. 2973-2981.

REVOLUTIONARY

IÓ4

DAMAGES

responsible for failure to prevent conditions of armed lawlessness. 16 However, Thornton did not attempt to distinguish between a rebellion and a state of armed lawlessness, but held in general that Mexico was not responsible for the acts of persons who were in conflict with the central government.

SUBSEQUENT

DIPLOMATIC

DISCUSSIONS

In spite of the decisions of the 1868 Commission, the Departmen of State at Washington continued to maintain its position that the Mexican government was responsible for all wrongful acts of persons in revolt against the established government. In 1875, Secretary Fish instructed Foster to present the claim of the Batopilas Mining Company for damages to mining property during revolutionary disorders and for sums of money exacted by insurrectionists. In response to Lafragua's plea that Mexico was not responsible for acts of persons in revolt against it, Secretary Fish said that the " inadequacy of this excuse " had been repeatedly shown, and especially in the cases of Messrs. Ulrich and Langstroth. If the authority of the Mexican government was for a time usurped by others, that government must be held accountable for the acts of the usurpers " unless the revolt shall attain such proportions and be so long continued as to warrant a recognition of the parties as belligerents." As for the argument that the injured foreigners should seek redress in the Mexican courts against the individuals who had been responsible for their losses, Fish stated that such a position must be regarded " a s a virtual repudiation of the promise of protection to citizens of the United States stipulated in the Treaty of 1831." 17 T h e Mexican government, however, was as successful in resisting the establishment of its liability in the case of revolutionary claims as it had been in the case of forced loans. Foster's strenuous efforts to obtain either a general admission of liability from the Mexican government for revolutionary damages or a 16

See Franklin Cummings v. Mexico, Docket No. 963, opinion of M r . Wads-

worth. 17

Fish to Foster, No. 241, July 15, 1875, MS. Inst. Mex., Vol. 19.

REVOLUTIONARY DAMAGES recognition of responsibility in particular cases ended in complete failure. The Diaz administration firmly and consistently denied all liability under any circumstances. With the gradual cessation of revolutionary outbreaks under the forceful administration of President Diaz, the question of responsibility for revolutionary damages ceased to be a burning issue between the two countries.

CHAPTER

VII

LEGISLATIVE LIMITATIONS ON DIPLOMATIC PROTECTION IT will be recalled that the questions of forced loans and revolutionary damages formed, together with the issue of border raids, 1 the main grounds on which the Hayes administration justified its delay in recognizing the Diaz government. T h e United States insisted that on these questions it was asking from Mexico nothing more than was plainly due under the most elementary principles of international law. The course of legal argument by which the Department of State sought to establish these propositions has been outlined in the two preceding chapters. On neither subject did the United States succeed in obtaining any admission of legal liability from the Diaz government, either before or after recognition. Its success in combating the various positions assumed by the United States on these issues seems to have emboldened the Diaz government to take a firmer stand on all other questions of diplomatic protection. At any rate, for a number of years after securing unconditional recognition, the Diaz government presented a courteous but determined opposition to every implication of international responsibility for injuries sustained by Americans in Mexico, and successfully parried every diplomatic claim presented by the diplomatic representatives of the United States. During this period, the discussions of diplomatic protection centered on three main issues: i ) the validity of certain legislative acts of the Mexican government aimed at limiting diplomatic interposition; 2) the doctrines of denial of justice and exhaustion of local remedies; 3) the international responsibility of Mexico for injuries to foreigners resulting from a failure of police pro1

This subject of border raids is fully discussed by Rippy, op. cit., Chap. X V I I . 166

L I M I T A T I O N S ON P R O T E C T I O N

167

tection. T h e first of these issues will be discussed below and the others in succeeding chapters. T h e efforts of the Mexican government during this period to limit by its own legislation the recourse of foreigners to diplomatic protection took the form of laws requiring foreigners to " matriculate " and also of constitutional and legislative provisions fixing the status of foreigners acquiring real estate in Mexico. Under the matriculation laws, foreigners were required to furnish the Mexican government with evidence of their foreign nationality and to obtain certificates of matriculation from the Department of Foreign Affairs. Those failing to comply with this requirement were barred from exercising the " rights of foreigners," which were, in substance, the rights guaranteed by treaties and the right of diplomatic protection. The enactments relating to real property provided that foreigners acquiring such property in Mexico became Mexicans, unless they expressly declared their intention of retaining their former nationality at the time of acquiring the property. T h e underlying purpose of these laws was to restrict the exercise of diplomatic protection on behalf of foreigners in Mexico. In enacting them the Mexican government did not go so far as to assert that it could, by its own municipal laws, limit the right of foreign governments to resort to diplomatic interposition in any case where such interposition was permitted under international law. Mexico knew that such a contention would not be accepted by other powers. Instead, it sought to draw a distinction between the right of a government to resort to diplomatic protection of its citizens abroad and the right of an individual foreigner to call on his government for such protection. T h e latter was asserted to be a personal right that could be waived by the voluntary act of the foreigner in the same manner that he could alter his citizenship without the consent of his own government. On this hypothesis the Mexican government asserted the power to establish conditions under which foreigners in Mexico could exercise the rights arising out of their character as aliens, and to declare that foreigners who failed to comply with these conditions voluntarily waived their rights as such.

168

L I M I T A T I O N S ON

PROTECTION

As will be shown below, the officials of the United States displayed a marked degree of inconsistency in their rulings on this question and in the logical arguments advanced in support of them. This inconsistency seems to have been due primarily to a failure at first to grasp the underlying purpose of the Mexican enactments, or to see their practical effect in restricting the exercise of diplomatic protection. T h e subsequent realization of this purpose brought about a distinct change of view on the part of the government of the United States in regard to the legislation in question. MATRICULATION

LAWS

As far back as 1828, the Mexican government had adopted municipal regulations requiring foreigners in Mexico to establish their identity as such, as a condition of residing in the country and receiving the benefits of Mexican laws. It does not appear that the United States ever raised any objection to this requirement, or that the Mexican government sought to use any failure to comply with it as a defense against the exercise of diplomatic protection. These laws were finally abolished by the Mexican Constitution of 1857, Article 11 of which provided that " e v e r y one has the right to enter or leave the Republic, to travel through its territory and change his residence without necessity of a letter of security, passport, safe conduct, or any other similar requirement." 2 In 1861, President Juarez issued a decree requiring all foreigners in Mexico to establish their foreign nationality before the Department of Foreign Affairs and to obtain certificates of matriculation. Article 7 of this decree provided that no authority, officer, or public functionary should recognize as a foreigner any person who did not present such a certificate. 3 Under the wording of this article, a foreigner failing to matriculate was 2

A translation of the M e x i c a n C o n s t i t u t i o n s of 1857 a n d 1917 w i l l be f o u n d

in the Supplement Science, 3

to the Annals

oj the American

Academy

of Political

and

Social

M a y , 1917, reprinted b y the G o v e r n m e n t P r i n t i n g Office, W a s h i n g t o n , 1926. Decree of M a r c h 16, 1861, trans, enclosed w i t h F o s t e r to Fish, N o . 301, J u n e

9, 1861, M S . Desp. M e x . , V o l . 54.

L I M I T A T I O N S ON P R O T E C T I O N

169

not only deprived of the right to assert foreign nationality in any dispute with the Mexican government but was also deprived of all civil rights in Mexico which depended for their exercise upon the action of any Mexican official. In addition, a nominal fine of ten dollars was provided for failure to comply with the regulation. The promulgation of this decree occurred just before the French intervention in Mexico and does not seem to have provoked any comment from the government of the United States at that time. B y a subsequent decree of March 1 3 , 1863, a distinction was drawn between persons claiming foreign nationality by birth and those asserting it by naturalization. The decree provided that, for the purpose of obtaining a certificate of matriculation as required by the decree of March 16, 1 8 6 1 , those of the former class need only present a declaration of nationality certified by the proper diplomatic or consular agent, but that it was necessary for those in the latter class to present to the Mexican government " indisputable proof of having fulfilled the conditions of residence and the other conditions prescribed by the naturalization laws of the country in question." 4 On December 6, 1866, President Juarez issued a new decree which did away with the ten dollar fine and the loss of civil rights as penalties for failure to matriculate, but retained the provision that unmatriculated foreigners could not assert the " rights of foreigners." This decree further provided that " so far as may relate to the time previous to the date of enrollment and issuance of such certificates, they can not allege any rights, nor be judicially recognized in the capacity of foreigners." 5 As in the case of the preceding enactments on the subject, it does not appear that this decree provoked any comment from the government of the United States at the time of its issuance. * Translation of this decree is enclosed with Nelson to Fish, No. 429, August 10, 1 8 7 1 , M S . Dssp. Mex., Vol. 43. 5 Translation of this decree is enclosed with Foster to Fish, No. 56, October 6, 1873, M S . Desp. Mex., Vol. 49.

170

L I M I T A T I O N S ON

PROTECTION

RESTRICTIONS ON O W N E R S H I P OF R E A L

PROPERTY

Ever since the first Mexican constitution was adopted in 1824, foreigners residing in Mexico had been permitted to acquire and hold real property in the same manner as natives. This right had, however, been subject to various limitations by legislative enactments, inspired either by a fear of foreign dominance or by a desire to restrict the recourse to diplomatic protection wherever possible. Mexican legislation on this subject reveals a constant conflict between the desire to build up a large population and the desire to escape the diplomatic difficulties that were inevitably associated with the introduction of large groups of foreigners into the country. T h e new Republic at first adopted a very liberal attitude toward colonization by foreigners, but the influx of American settlers in T e x a s and the subsequent agitation for the annexation of that territory by the United States led to an early change of policy so far as settlers from the United States were concerned. In 1826, two decrees were issued limiting the admission of colonists from the countries bordering on Mexico, and in 1828 another decree provided specifically that settlements formed in the territories along the northern frontier should not be composed of natives of the United States. These decrees were not effectively enforced, however, and in 1830 the Mexican Congress found it necessary to pass another law prohibiting foreigners from settling in those portions of Mexico " which border upon the territories of their own nations." 6 This law was repealed on November 21, 1833, but was reenacted on April 4, 1837, by presidential decree. On M a r c h 14, 1842, President Santa Anna, acting under the authority granted him by the so-called " Plan of T a c u b a y a , " issued a decree specifying the conditions under which foreigners could acquire real property in Mexico. In this decree is found the first public expression of the view thereafter consistently maintained by the Mexican government that the right of diplomatic 6

Translation enclosed with Thompson to Upshur, No. 38, January 4, 1844,

M S . Desp. Mex., Vol. 11.

LIMITATIONS ON

PROTECTION

171

protection is a personal right which can be waived by the individual foreigner without the consent of his own government. This decree stipulated as follows: ART. 5.

F o r e i g n e r s w h o , b y v i r t u e o f this l a w , a c q u i r e r e a l p r o p e r t y , b e -

c o m e a s r e g a r d s it, e n t i r e l y s u b j e c t t o the l a w s in f o r c e o r t o b e in f o r c e in the r e p u b l i c c o n c e r n i n g t r a n s f e r e n c e , use, p o s s e s s i o n , a n d t a x a t i o n , w i t h o u t t h e right

t o a l l e g e r i g h t s of a l i e n s h i p o n t h e s e p o i n t s .

ART. 6.

C o n s e q u e n t l y , all q u e s t i o n s o f this n a t u r e w h i c h m a y arise, w i l l

b e d e t e r m i n e d in the ordinary' a n d r e g u l a r c o u r s e of the n a t i o n a l l a w s , t o t h e e x c l u s i o n o f all i n t e r v e n t i o n w h a t s o e v e r . 7

It was further provided that foreigners could not acquire property in the departments along the frontiers of Mexico without the express license of the federal government, and that under no circumstances could they acquire land within a distance of five leagues from the sea coast. It does not appear that the promulgation of this decree provoked any comment from the Department of State at the time, or that the Mexican government in fact sought to raise the stipulations of Articles 5 and 6 as a defense against diplomatic interposition in any case. On February 1, 1856, President Comonfort, acting under authority of the so-called " Plan of A y u t l a , " issued another decree regarding the ownership of real property by foreigners in Mexico. This decree reënacted in practically the same form the provisions of the decree of Santa Anna of March 14, 1842, including those quoted above. The prohibition against foreigners acquiring land along the frontiers without previous permission of the government was made to apply only to land within twenty leagues of the border, while the prohibition against acquisition of land within five leagues of the coast was retained in its original form. 8 Both of the above decrees contained provisions allowing foreigners owning real estate in Mexico to become naturalized as Mexican citizens if they so desired. Article 30 of the Constitution of 1857 went further and stipulated that foreigners acquiring real estate automatically became Mexicans unless they specifically 7

Consular Reports, 1883, V o l . 10, p. 709.

8

F o r text of decree see Consular Reports, 1883, V o l . 10, pp. 708-710.

L I M I T A T I O N S ON

172

PROTECTION

declared their intention of retaining their former nationality. The text of this article was as follows: ART. 30.

Mexicans a r e :

I. A l l persons born, within or without the R e p u b l i c , of Mexican parents. I I . Aliens naturalized in c o n f o r m i t y with the laws of the Federation. I I I . Aliens w h o acquire real estate in the Republic, or have Mexican children, if they do not declare their intention to retain their nationality.

It does not appear that this article or the previous law of 1856 drew any comment from the government of the United States at the t i m e of their p r o m u l g a t i o n .

D E C I S I O N S OF T H E C L A I M S

COMMISSION

OF

1868

T h e first time that the Mexican government sought to raise the failure to comply with the above laws as a defense against diplomatic interposition was before the Claims Commission of 1868. T h e jurisdiction of that Commission was denied b y the Mexican government in all cases in which the claimants had failed to matriculate or had acquired real property in Mexico without declaring their intention to retain their American nationality. However, neither one of these defenses was recognized as valid by the Commission. T h e defense of nonmatriculation received very little consideration at the hands of the Commission, and was not even taken into account as evidence in cases of doubtful citizenship. In the claim of John C. Houston v. Mexico, Docket No. 93, the American Agent, in his argument on the merits of the claim, took notice of the defense of nonmatriculation raised by the Mexican government only to the extent of remarking that " the requirement is based upon the local municipal law of Mexico and in our judgment can in no way affect the rights of Americans before this Commission." The Commissioners took no note of the question in their opinions. In the case of Smith Bowen v. Mexico, Docket No. 442, Umpire Thornton expressed the view that the claimant had not forfeited his American citizenship by his long residence in Mexico and by acquiring real property there, or by his failure to take out

LIMITATIONS ON

PROTECTION

a " carta de seguridad," although Thornton gave no reason in support of this view. In the case of Sanforth Kidder v. Mexico, Docket No. 575, the Mexican Commissioner refused to recognize the American citizenship of the claimant because he had owned real property in Mexico without matriculating. T h e American Commissioner, Wadsworth, merely stated that the claimant's failure to take out a " carta " would not forfeit his allegiance to the United States, although it might have subjected him to the penalties prescribed by the local law. Umpire Thornton, without any reference to the question of matriculation, held the claimant to be an American citizen. Likewise, in the case of Theodore Schleining v. Mexico, D o c k e t No. 864, Commissioner Wadsworth stated that he was not willing to admit that because a foreigner failed to take out a " carta " his property could be confiscated or his life taken. " The penalty of the law, if the law is Constitutional, can be exacted, that is all." Wadsworth does not seem to have been aware that the penalty provided for nonmatriculation by the laws of 1861 and 1866 was the denial of the right to call for diplomatic protection. Umpire Thornton in this case took no notice of the defense of nonmatriculation raised by the Mexican government but decided the case on other grounds. Likewise in a number of other cases the Commissioners took no notice of the defense raised by the Mexican government of failure to matriculate or to take out letters of security. 8 T h e only case in which the question of matriculation received serious consideration was that of Anderson and Thompson v. Mexico, Docket No. 333; and in this case it came up only as secondary to the question of the effect of owning real property in Mexico upon the status of a foreigner. T h e two claimants in this case had gone to Mexico in 1863 and acquired real property in 9 See Hannum v. Mexico, Docket No. 32; Pratt v. Mexico, Docket No. 63; Longstroth v. Mexico, Docket No. 68; Stillman D. Willis v. Mexico, Docket No. 89; Juan M. Silva v. Mexico, Docket No. 92; Mark Schaben v. Mexico, Docket No. 100; William Blumhardt v. Mexico, Docket No. 135; D. D. Brainard & Co. v. Mexico, Docket No. 672; Salome and John McAIlen, heirs of John Y o u n g v. Mexico, Docket No. 591; Martin de Leon v. Mexico, Docket No. 593.

174

L I M I T A T I O N S ON P R O T E C T I O N

the state of Sinaloa, of which they had subsequently been deprived through a proclamation of the Mexican President. The Mexican Commissioner, Palacio, wrote a very long opinion in this case, contending that, by reason of the claimants' acquisition of real property and their subsequent failure to matriculate, they had voluntarily become naturalized as Mexican citizens under the provisions of Article 30 of the Constitution of 1857. Commissioner Wadsworth in an equally long opinion maintained the opposite view, and in this he was upheld both by Umpire Lieber and Umpire Thornton. In the course of his opinion, Palacio pointed out that, according to the clear terms of Article 30 of the Mexican Constitution, the immediate effect of the acquisition of real property by a foreigner was an election by him to become a Mexican, and that this could be controverted only by an express declaration at the time of acquisition. The law of 1861 regarding matriculation had provided a definite form by which a foreigner could assert his desire to maintain his former citizenship, and the failure of a foreigner owning real property to matriculate must be construed as an expression of his intention to become a Mexican citizen. Palacio insisted that every sovereign nation had the right to make rules regarding naturalization, and he pointed out that the United States had vigorously defended the right of every individual to expatriate himself. Naturalization through voluntary acquisition of real property without a declaration to the contrary was as valid a form of naturalization as an express oath of allegiance, even though it might not be known in the United States. I t must be assumed that foreigners going to Mexico and acquiring real property there were at least familiar with the provisions of the Mexican Constitution. In his reply to the opinion of the Mexican Commissioner, Wadsworth admitted that there was no treaty stipulation between the two countries which would forbid naturalization by acquisition of real property as provided in Article 30 of the Mexican Constitution. Such a policy might be " illiberal, inconvenient in practice, unwise; calculated to foster a narrow jealousy of foreigners and so retard and postpone the growth in population and

L I M I T A T I O N S ON

PROTECTION

wealth of the country that adopts it."

It might " even multiply

the disputes with foreign powers that have led to such troubles in the past," but these considerations were " addressed alone to the government and people of Mexico." I f a citizen of the United States, without manifesting his intention to retain his nationality, acquires title to land in Mexico, since the 5th day of February 1 8 5 7 , the Constitution of that country operating on the act, a voluntary act in effect naturalizes the p a r t y ; or literally, he thereby becomes a Mexican, but not a Mexican citizen. T h e law is explicit. 1 0 And the burden of proof is on the party, to show that he did not intend by the acquisition, to renounce his American citizenship. This is evident too.

Wadsworth then reviewed the prior legislation of Mexico on the subject and asserted that the law of 1 8 4 2 , which had offered citizenship to foreigners settling on land in Mexico after two years residence and good behavior, " was just, liberal, and wise, calculated to aid the emigration policy of the laws," but that the provision of the Constitution which compelled foreigners to accept citizenship with the purchase of land unless they expressly rejected it " was not calculated to stimulate emigration, while it exposed the State to an enforced membership with the vilest and the most dangerous character who might, for his own purposes, choose to purchase an acre of its soil."

So singular a change of

policy, said Wadsworth, could have but one rational explanation and that was a desire on the part of Mexico to restrict the recourse to diplomatic protection.

He conceded that foreigners entering

Mexico were anxious to retain their own nationality and to escape Mexican citizenship, while the Mexican government, on the other hand, was anxious to make them assume it " in order to avoid those serious and interminable complications with foreign Nations, which sometimes bring afflictive war, and which always bring painful embarrassment and serious losses."

He added that " the

records of this Commission furnish indubitable proof of the truth 10

T h e distinction here s o u g h t to be d r a w n b y W a d s w o r t h between M e x i c a n s

and M c x i c a n citizens w a s based on Article 3 4 of the Constitution of 1 8 5 7 , w h i c h specified that o n l y those M e x i c a n s w h o w e r e o v e r 21 y e a r s of age ( o r 1 8 y e a r s of age if m a r r i e d ) a n d h a d a n honest means of livelihood could e n j o y M e x i c a n citizenship.

176

L I M I T A T I O N S ON P R O T E C T I O N

of this explanation." But the legislation of Mexico was proof enough. Wadsworth admitted that the power of Mexico to annex the condition of naturalization to the acquisition of land by a foreigner, unless he manifested an intention to preserve his nationality, could not be questioned. The real question was how this intention was to be manifested. Wadsworth denied the contention of the Mexican Commissioner that such intention could be manifested only by matriculation under the laws of 1861 and 1866, and asserted that, on the contrary, it might be shown by any facts or circumstances indicating a desire on the part of the foreign property holder to retain his former nationality. The Constitution of 1857 had not prescribed any form of signifying such intention, but the prior colonization law of February 1, 1856, had specified a way in which settlers under that law could acquire Mexican citizenship, and hence the failure to follow that procedure must be construed as evidence of intention to preserve former nationality. Wadsworth also argued that the claimants in the case at issue had resided in Mexico as foreigners and had been recognized and treated as such by the Mexican authorities and by their Mexican neighbors, and that this also must be regarded as a manifestation of intention by the claimants within the meaning of Article 30 of the Constitution. As for the matriculation law of 1 8 6 1 , it was obvious, said Wadsworth, that the failure of a foreigner to register under that law could not in any case invest him with a Mexican character. " The design of the decree was to punish the failure by fines and the deprivation of all civil rights under the Mexican l a w . " 1 1 A decree which had this effect could not have been framed to aid the 30th Article of the Constitution. C o n c e d i n g that this decree does destroy the civil rights of the f o r e i g n e r in M e x i c o , shut u p its courts against h i m , and cause its authorities t o turn a 11 Wadsworth is here clearly mistaken as to the purpose of the law of 1 8 6 1 . T h e intention of that decree was in fact to punish the failure of registration by the deprivation of the right to seek diplomatic protection. There was a provision in the law assessing a nominal fine of $ 1 0 for failure to register, but this was abolished b y the decree of 1866, as was the penalty of deprivation of civil rights under the Mexican law.

L I M I T A T I O N S ON P R O T E C T I O N deaf ear to his claims, and complaints, how can this affect the political tie, his allegiance to his own Sovereign? Shall he too deny him redress for his wrongs because the Mexican law does, and hold him no longer a subject because of such a decree? In my opinion the decree cannot influence this question at all. It may be a rule for the local authorities, but none for the foreign Sovereign. If he takes up the claim of his subject, and enters into a convention with Mexico, whereby the latter power stipulates for the redress of injuries to the persons and property of every subject of the former, why the decree in this form will constitute no barrier to the consideration of the claim.

Wadsworth then sought to argue that the decree of 1 8 6 1 was unconstitutional, both because it was in conflict with Article 1 1 of the Mexican Constitution and also because it was issued by the executive and not the legislative power. He concluded that the decree must be disregarded in considering the claim of Anderson and Thompson, and that the claimants did not lose their American nationality by acquiring real estate in Mexico. This claim came twice before the Commission and was passed upon by both Umpire Lieber and Umpire Thornton. Lieber held that the American citizenship of the claimants was not affected by the acquisition of real estate in Mexico or their failure to matriculate. He asserted that Article 30 of the Mexican Constitution " clearly means to confer a benefit upon the foreign purchaser of land, and equity would assuredly forbid us to force this benefit upon claimant (as a penalty, as it were, in this case), merely on account of omitting the declaration of a negative." Umpire Thornton likewise held that Article 30 of the Constitution of Mexico was " permissive and not obligatory." He added that " as the claimants did not take any steps to avail themselves of that permission, that in itself was a sufficient proof that they did not wish to do so." He accordingly concluded that they retained their character of citizens of the United States and therefore had a standing before the Commission. 12 13

See also Vicente Costanza v. Mexico, Docket No. 3 5 1 , in which the Mexican Commissioner wrote a long and spirited defense of the matriculation laws and Article 30 of the Constitution of 1857. Umpire Thornton in this case merely referred to the views he had already expressed on the subject to the effect that the acquisition of real property in Mexico did not of itself deprive a foreigner of his right to be considered as such. Thornton did not mention the matriculation laws.

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It will thus be seen that, although the question of the validity of the Mexican matriculation laws was repeatedly brought before the Commission of 1868 by the Mexican government, it received very scanty consideration at the hands of that Commission. While the fact that the defense of nonmatriculation was ignored by both umpires would seem to prove that they did not consider it a valid bar to diplomatic interposition, it is very evident from a reading of the opinions of the Commission that there was little or no comprehension of the nature of the issue involved. The long opinion of the American Commissioner on the subject indicates very clearly that he was not even aware of the clear intent of the Mexican government in passing the matriculation laws. The specific question whether a foreigner could, by failing to comply with a local law, deprive his government of the right to intervene diplomatically on his behalf was not discussed by either umpire. On the allied question of the effect of owning real property in Mexico upon the right of a foreigner to claim diplomatic protection, the decisions of the Commission were more directly in point, but even here there was obviously very little grasp of the underlying issue. The conclusions of both umpires that the acquisition of Mexican citizenship through purchase of real estate was permissive rather than obligatory, in the face of the very clear stipulation of the Constitution and the repeated declarations of the Mexican government to the contrary, was scarcely a satisfactory disposition of the question. It is clear that both Lieber and Thornton instinctively regarded the granting of citizenship as a favor and were scarcely conscious of the fact that, under the peculiar conditions existing in Mexico, the acquisition of Mexican citizenship in place of the citizenship of a strong foreign country was a distinct disadvantage. Commissioner Wadsworth realized this fact, but sought to escape from the obvious intent of Article 30 of the Mexican Constitution by a very strained construction of Mexican law on the subject, and by attacking the Mexican Commissioner's questionable assertion that registration under the matriculation laws was the only manner in which a declaration of intention under Article 30 could be made. Wadsworth frankly conceded

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that the Mexican government had the right to declare the forfeiture of foreign nationality as a consequence of holding real property in Mexico, and this was not directly denied by either umpire. They merely denied that the specific legislation in question could be so construed. SUBSEQUENT DIPLOMATIC

DISCUSSIONS

The question of the validity of the Mexican matriculation laws first came up for diplomatic discussion in 1871, some ten years after the passage of the first matriculation law. On July 28, 1871, the Mexican Department of Foreign Affairs addressed a circular to the governors of the various Mexican states on the subject of the issuance of certificates of matriculation. The circular called attention to the decree of March 13, 1863, stipulating that passports or certificates of nationality issued by foreign diplomatic or consular officers would only be accepted as proof of foreign nationality in the case of those claiming such nationality by birth, and not in the case of foreign nationality by naturalization. In the latter case, the governors were reminded that foreign nationality could only be recognized upon proof that the person claiming such nationality had actually complied with the naturalization laws of the country in question. It was added that registration under the matriculation laws constituted merely a legal presumption that a foreigner possessed the nationality therein assigned to him, " and by virtue of such presumption he shall receive the legal treatment to which he is entitled by international prescription or by specific treaties." A copy of this circular was transmitted by Minister Nelson to Secretary Fish without comment.13 Six months after the receipt of this despatch (and eight years after the promulgation of the decree to which it called attention) Secretary Fish, in an instruction to Nelson, took exception to the distinction drawn between the kind of proof of foreign nationality required in the case of foreigners by birth and foreigners by naturalization. In taking the position that the passports issued 13

Nelson to Fish, No. 429, August 10, 1871, MS. Desp. Mex., Vol. 43.

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by the United States to its naturalized citizens could not be recognized as conclusive evidence of compliance with the naturalization laws of the United States, the Mexican government, said Fish, might be regarded as " showing a want of comity, at least, which was not to have been expected." The naturalization of a foreigner in the United States was " the solemn act of a Court of Record." As such, no foreign government could rightfully question its sufficiency or inquire into the facts upon which it might have been based. An American passport did not on its face make any distinction between native and naturalized citizens, and no foreign government could, without discourtesy to the head of the Department of State, attempt to make such a distinction. Nelson was accordingly instructed to enter a protest upon the subject before the Mexican Minister of Foreign Affairs. 1 4 In acknowledging this instruction, Nelson replied that it had probably been written under some misapprehension in regard to the action of the Mexican government in granting or withholding certificates of matriculation to Americans. He stated that he had applied to the Department of Foreign Affairs for such certificates in behalf of a large number of American citizens residing in different parts of Mexico, and the certificates had always been promptly granted. In every case within his knowledge the passport issued by the Department of State had been respected, whether held by native or naturalized citizens, although this course was not in strict conformity with the letter of the Mexican law on the subject. Nevertheless, said Nelson, he had submitted the contents of the instruction to Mariscal, to avoid a possible misunderstanding in the future. If the Mexican government should presume to inquire into the authenticity of certificates issued to naturalized citizens of the United States and should not respect the passports of the State Department, he would at once address an earnest remonstrance upon the subject to the Mexican government. 15 The question of matriculation next came up in connection with the expulsion of the two priests, Lilla and McCrealy, to 14 15

Fish to Nelson, No. 221, February 13, 1872, MS. Inst. Mex., Vol. 18. Nelson to Fish, No. 569, May 18, 1872, MS. Desp. Mex., Vol. 45.

LIMITATIONS ON PROTECTION which reference has heretofore been made. 1 "

181

T h e Mexican gov-

ernment denied the right of the United States to intervene in that case on the ground (among others) that the two priests had not matriculated and hence their foreign nationality could not be recognized.

In reply to this defense, Nelson called attention to

the above instruction of Secretary Fish of February 1 3 , 1 8 7 2 , in which, according to Nelson, Secretary Fish had " protested against the application of the regulations to American citizens as contrary to international l a w . "

17

Furthermore, said Nelson, the

Mexican law in question attached no penalty to a failure to matriculate. 18 In response to this note, the Mexican Minister of Foreign A f fairs replied that the government of Mexico did not pretend to sit in judgment upon the citizenship of foreigners, but that, as a condition for the exercise of " the rights of foreign citizens," it had been thought convenient to establish certain rules as to proof of foreign nationality.

This was to avoid the inconven-

ience often resulting in the past from the imposition upon the good faith of foreign diplomatic representatives in Mexico by persons who had no right to their protection.

T h e requirement

of proof of naturalization in such cases did not in any respect affect the rights of other nations nor violate the fundamental principles of international law, since its effects were limited to specifying the manner of proving citizenship.

According to the

universally recognized principles of international law, foreigners were bound to obey the laws of the country in which they re18

See supra, pp. 104-105. In his interpretation of Fish's instruction Nelson was clearly mistaken. Secretary Fish had not protested against the application of the matriculation laws to American citizens as being contrary to international law, but had merely objected to the distinction drawn between native and naturalized American citizens in the matter of proof of foreign nationality as a condition of obtaining matriculation certificates. 18 Nelson to Lafragua, May 23, 1873, enclosure with Nelson to Fish, No. 740, May 31, 1873, MS. Desp. Mex., Vol. 4S. Nelson was equally mistaken in his interpretation of the Mexican law. The original decree of 1861 had contained three penalties for failure to matriculate: 1) incapacity to assert the " rights of foreigne r s " ; 2) loss of civil rights; and 3) a fine of ten dollars. The decree of 1866 had abolished the second and third of these penalties, but had left the first and most important one in force. 17

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182

sided, and, the matriculation requirement being a law of Mexico, it should without question be obeyed by foreigners residing in Mexico. While the violation of this law was not punished by any personal or pecuniary penalty, " such violation must nevertheless produce the necessary effect of suspending the exercise of the rights of foreign citizenship." 19 In response to the arguments of Lafragua on matriculation, Nelson asserted that the idea of matriculation was unknown in the United States and so completely foreign to the American mind that not one in ten American citizens in Mexico ever matriculated until they had been years in the country or until some legal difficulty called their attention to the subject. It was notorious that there were many thousands of foreigners in Mexico who had never matriculated, and the failure to do so had not been held by the Claims Commission of 1868 as an impediment to the consideration of any claim. It was therefore absurd, said Nelson, to treat a failure to matriculate as a crime, or even as a violation of law. He could not, he said, find in the laws of 1 8 6 1 and 1866 " a n y precept making matriculation obligatory upon foreigners." The only penalty involved was the refusal to recognize unmatriculated foreigners as foreigners. How then, asked Nelson, were they to be regarded? " H e who is not recognized as a foreigner must evidently be regarded as a native." Nelson did not believe that the Mexican government could seriously maintain the right to regard the same person in a double light as at once a foreigner and a native. 20 Lafragua, in reply, strenuously insisted that the un familiarity 18 L a f r a g u a to Nelson, M a y 24, 1873, enclosure with Nelson to Fish, No. 740, M a y 3 1 , 1873, M S . Desp. Mex., Vol. 48. I t should be noted in passing that the position here taken by Nelson on the matriculation laws of Mexico was advanced in a case in which he had already taken a strong position on other grounds. When the issue of nonmatriculation was raised against this position, it is scarcely to be wondered at that Nelson should have been disposed to find the matriculation laws invalid, although they had not previously drawn any adverse comment from him. Obviously his attitude on this issue was directly affected by the realization that if the matriculation requirement should be upheld, the position he had so vigorously taken in defense of Lilla and McCrealy would be defeated. 20

Nelson to L a f r a g u a , J u n e 6, 1873, enclosure with Nelson to Fish, No. 744, J u n e 7, 1873, M S . Desp. Mex., Vol. 48.

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of Americans with the idea of matriculation had nothing to do with the case. " Mexico has the unquestionable right to enact such laws as she may judge convenient, even though they may be unknown in other nations and opposed to their spirit; because she is quite as independent and sovereign as any other whatever." Since matriculation did not put conditions upon foreign citizenship but only prescribed certain prudent rules to substantiate it, Lafragua maintained that it did not violate the rights of other nations, but merely served to prevent abuses which might be the cause of serious misunderstanding and the origin of international conflicts. He quoted with approval the statement of Commissioner Wadsworth in the Anderson and Thompson case that foreigners in Mexico were anxious to retain their nationality while the Mexican government was anxious to impose the character of Mexicans upon them, and stated that this opinion was a new and conclusive proof of the necessity of matriculation. Lafragua denied Nelson's argument that under the matriculation laws a foreigner who failed to matriculate became a Mexican. He was still a foreigner, said Lafragua, but he was a foreigner without a flag, " that is, without a determined nationality, until he proves that which legally should protect him." 2 1 In Nelson's final note on the Lilla and McCrealy cases before being replaced by Foster as Minister, he referred to his argument that the decrees of 1861 and 1866 did not make matriculation obligatory upon foreigners. He regarded those decrees, he said, as having the character of regulations " established for the purpose of promoting an object which the Mexican government has a perfect right to consider as desirable, and consequently to promulgate inducements thereto, and fines or minor legal disabilities in case of non-compliance," but in case a foreigner preferred to pay the fines " or abide by the legal disabilities " rather than matriculate, did he not, asked Nelson, simply exercise a perfect right, and could he be considered as an infractor of any law? 22 Nelson does not seem to have realized that his argu- 1 Lafragua to Nelson, June 13, 1873, enclosure with Nelson to Fish, N o . 747, June 16, 1873, MS. Desp. Mex., Vol. 48. 22

ibid.

Nelson to Lafragua, June 16, 1873, enclosure with Nelson to Fish, N o . 747,

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ment favored the Mexican contention rather than his own. T h e legal disabilities resulting from the failure to matriculate expressly comprised the inability to exercise the rights of foreigners. T h e whole Mexican contention was that foreigners who chose not to matriculate had simply elected this alternative, i.e., they had elected not to call on their own government for diplomatic protection. L a f r a g u a did not fail to point this out to Nelson's successor. 23 A few months after Foster became American Minister at Mexico City, the question of matriculation arose in connection with the exemption of American citizens from a tax in lieu of military service. T h e authorities of the state of Sonora required an American named Frank J. Boisville to pay such a tax on the ground that, since he had not matriculated, he could not be regarded as an American citizen. Under Article 9 of the Treaty of 1831, American citizens were exempt from compulsory military service in Mexico. Foster wrote to Secretary Fish that the practice of the Legation had been to advise all Americans to comply with the law of matriculation, but in no case had it conceded the penalties and disabilities which had been claimed to result from the failure to matriculate. T h e Mexican government had in all but one case, said Foster, issued matriculation papers to American citizens upon the request of the Legation. In a number of instances, however, where naturalized American citizens had personally applied for matriculation, they had been required to produce their naturalization papers in addition to their passports. Foster referred to the discussion between Nelson and Lafragua on the subject of matriculation in the Lilla and McCrealy cases and requested instructions on the subject. 24 Secretary Fish, in reply, upheld the validity of the Mexican matriculation laws. Article 9 of the T r e a t y of 1831, said Fish, merely exempted the citizens of one country from compulsory military or naval service in the other. Supposing the fact of citizenship in any particular case to be acknowledged, the exemp2 3 See Lafragua to Foster, October 10, 1873, enclosure with Foster to Fish, No. 6 i , October 20, 1873, MS. Desp. Mex., Vol. 50. 2 4 Foster to Fish, No. 56, October 6, 1873, M S . Desp. Mex., Vol. 49.

LIMITATIONS ON PROTECTION tion must be insisted upon.

185

T h e question then arose, what proof

of citizenship was either government warranted in requiring? T h e treaty being silent on this point, it was left for regulation, said Fish, by the municipal laws of the respective countries, " which must be acquiesced in unless their purpose and effect should be to thwart a plain stipulation of the treaty."

Fish stated

that " the Mexican law requiring the matriculation or registration of foreigners can scarcely be said to be of this character," and concluded with the following statement: Upon the whole, the Department is inclined to the opinion that the requirement of matriculation, as it is called by the Mexican Government, is not illegal nor, under the circumstances, unduly oppressive in form, and cannot properly be protested against generally or in any particular case, unless unusual or unattainable proof of citizenship should be required. Y o u r predecessor was instructed that we would not in any instance allow the sufficiency or supremacy of a passport to be questioned by Mexican authorities. Such a proceeding would clearly constitute an international case. 2 5

Foster read this instruction to the Mexican Minister of Foreign Affairs and also issued a circular to the consular representatives of the United States in Mexico, instructing them to advise American citizens of the existence of the matriculation law and to assist them in conforming to its requirements.

This circular

stated as follows: It is the duty of American citizens, who come to Mexico to engage in commercial or other pursuits, to obey the laws of the country and, conform to all the requirements of its government, not in contravention of T r e a t y stipulations or international law. T h e Government of the United States does not regard the provisions of the law of Matriculation as illegal, nor unduly oppressive in f o r m ; and it cannot properly be protested against, unless unusual or unreasonable proof of citizenship should be required in a particular case. 2 0

The Mexican government naturally regarded Fish's instructions and Foster's circular as an admission that the objection previously raised by Nelson against the legality of the matriculation requirement had been wrong. 25

Shortly afterward the cir-

Fish to Foster, No. 43, October 3 1 , 1873, MS. Inst. Mex., Vol. 19. Circular, Foster to U. S. Consuls in Mexico, enclosure with Foster to Fish, No. 82, December 10, 1873, MS. Desp. Mex., Vol. so. 26

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PROTECTION

cular was reprinted in the " Diario Oficial," together with a note that there had been a dispute on the subject, but that the United States had acknowledged the correctness of the position of the Mexican government in the matter. This statement greatly irritated Foster, who either had not grasped the significance of Secretary Fish's instructions or was unaware of the position previously taken by the Legation on the subject. He wrote at once to Lafragua that the government of the United States had " never manifested any opposition to the Mexican law for the matriculation of foreigners nor called in question the right of the Mexican Government to enact and enforce such a law." He added that the government of the United States had not receded from any position which it had assumed in reference to the regulations adopted by the Mexican Foreign Office under the matriculation law, and no acknowledgment had been made of any error or of the correctness of the views of the Mexican government on any question which might have arisen between the two governments. 27 Lafragua endeavored to justify the Mexican government's interpretation of the position announced by Secretary Fish, but Foster refused to concede the force of his arguments. Foster asserted that, while American citizens were advised to comply with the matriculation law, his government " has not recognized and cannot recognize the principle that a failure to matriculate forfeits all rights to recognition and protection as a citizen of the United States." 2 8 But as a matter of fact, this assertion was not supported by anything found in the previous instructions of Secretary Fish. Under this view, the Mexican government might properly decline to recognize the foreign nationality of an alien who had failed to matriculate, but this could have no effect on the alien's own government in the matter of diplomatic interposition. But since the essential point in denying foreign nationality was to avoid diplomatic interposition in such cases, 27

Foster to L a f r a g u a , December i6, 1873, enclosure with Foster to Fish, N o .

106, February 11, 1874, M S . Desp. Mex., Vol. 50. 28

Foster to L a f r a g u a , December 31, 1873, enclosure with Foster to Fish, N o .

106, ibid.

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Foster's position would h a v e deprived the matriculation laws of all value. I n spite of F o s t e r ' s protest, the M e x i c a n government maintained its position that foreigners could not be recognized as such unless they had matriculated. 1875,

on

In a note to Foster of M a y 21,

the practice of the M e x i c a n government in relation to the

a d j u s t m e n t of claims against it, L a f r a g u a stated that foreigners could not " take a d v a n t a g e of the rights of foreign citizenship " if they were not matriculated in conformity with the law of 1866. 28 A g a i n , in response to a complaint filed b y Foster arising out of forced loans and other losses sustained b y an American citizen in 1875, L a f r a g u a informed Foster that, as the claimant had not matriculated, it w a s not possible to recognize in him the nationality that was attributed to him. 30

In transmitting this note to Fish,

Foster stated as f o l l o w s : W h i l e it m a y be conceded that the M e x i c a n G o v e r n m e n t can place restrictions upon the rights of foreigners in the courts and offices of its own country, upon a failure to c o m p l y with its laws of matriculation, I do not conceive that this failure would p r e v e n t our G o v e r n m e n t f r o m receiving the complaint of its citizens for wrongs and outrages inflicted upon their persons or p r o p e r t y in M e x i c o and f r o m m a k i n g a diplomatic demand for a redress of

their

grievances in cases w h e r e the f a c t s would j u s t i f y such interposition. 3 1

W h e n the question w a s thus presented as a basis for the rejection of a claim w h i c h the government of the United States had espoused, Secretary F i s h saw the matriculation law in a different light.

H e seems to h a v e realized for the first time that there

was a definite connection between the matriculation requirement and the exercise of diplomatic protection, and that, if the M e x i c a n contention were recognized, the United States would be seriously embarrassed in its efforts to protect Americans in M e x i c o .

He

accordingly instructed Foster as follows: Conceding as is alleged in the note of M r . L a f r a g u a to y o u of the 3 1 s t of M a y last, that M r . R o b i n s o n , the A g e n t of the company, was not registered 29

Enclosure with Foster to Fish, No. 289, M a y 20, 1875, MS. Desp. Mex.,

Vol. 5430 Lafragua to Foster, M a y 31, 1875, enclosure with Foster to Fish, N o . 301, 3 1 Foster to Fish, No. 301, loc. cit. June 9, 1875, MS. Desp. Mex., Vol. 54.

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in the M e x i c a n Foreign Office as a citizen of the U n i t e d States, and that the c o m p a n y itself w a s not registered as required, the M e x i c a n G o v e r n m e n t m u s t not suppose that we can acquiesce in the injuries inflicted in this case, m e r e l y on account of the omissions adverted to.

Indeed such an acquiescence w o u l d

imply an a c k n o w l e d g m e n t on our p a r t that b y municipal law the M e x i c a n G o v e r n m e n t can deprive citizens of the United States of their rights under treaties and international law, a pretension w h i c h cannot be allowed to a n y government.

I t must not f r o m this, however, be inferred, that this g o v e r n -

ment would counsel or j u s t i f y , in the abstract, a n y disregard of the l a w s of M e x i c o b y a citizen of the United States.

On the contrary, we would p r e f e r

that the requirements of those laws should be complied with.

I t is only

when the effect of their administration becomes tantamount to the infliction of the exorbitant penalty of denationalizing a citizen or an association, t h a t w e deem ourselves warranted in protesting against

such a course.

That

government m a y h a v e sufficient reasons f o r enacting the laws referred to, and if a disregard of them either accidental or w i l f u l were to be visited with a punishment proportionate to the offence no one could reasonably complain. 3 2

The position here taken is of course quite inconsistent with the one previously advanced, although the logical deduction was equally good in both cases. T h e inconsistency is readily accounted for by the fact that Secretary Fish had in the meantime acquired a different view of the practical situation, and this had led him to select a different general principle of law as covering the question at issue. Evarts, who succeeded Fish as Secretary of State, took a still different position on the question of matriculation, drawing a distinction between foreigners domiciled in Mexico and those temporarily sojourning there. Thus he wrote to Foster as follows: I t seems that m y predecessor regarded the matriculation law as not at variance with the t r e a t y or public law.

T h i s m a y be concurred in so f a r as that

regulation applies to citizens of the United States domiciled in M e x i c o .

Its

application, h o w e v e r , to travellers or temporary sojourners seems unreasonable, and should in such cases be protested against.

Evarts also protested against the distinction drawn by the Mexican government between those claiming alienage by birth and those asserting it by naturalization, and stated that the assumption of the right to inspect and decide upon the validity of 3-

Fish to Foster, No. 241, July 15, 187s, M S . Inst. Mex., Vol. 19.

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189

American certificates of naturalization must be regarded as wanting in proper courtesy to the government of a friendly power.3* T h e Mexican government continued to deny the right of diplomatic interposition in the case of American citizens who had not matriculated, but the question did not again become the subject of diplomatic discussion until 1882. In April of that year, Morgan, then American Minister at Mexico City, intervened on behalf of certain American citizens who had been imprisoned in Mexico, but the Mexican government refused to discuss the case diplomatically on the ground that the Americans in question had not matriculated. When informed of this position, Secretary Frelinghuysen telegraphed Morgan that, if nonmatriculation was the only ground on which intervention was refused, it was expected that the Americans involved would be allowed to matriculate. Morgan was authorized to advance the necessary funds for this purpose. 34 In reply to this instruction, Morgan pointed out that, according to Mexican law, a certificate of matriculation did not operate retroactively, and that even if the Mexican government should permit the American citizens in this case to matriculate, it did not follow that the government would admit diplomatic intervention in their behalf. 35 As a matter of fact, the Mexican government did permit the imprisoned Americans to matriculate, and although Mariscal called Morgan's attention to the nonretroactive character of matriculation, the prisoners were subsequently released. 36 Secretary Frelinghuysen's position in this case seems to have implied a recognition of the right of the Mexican government to require matriculation as a preliminary to diplomatic interposition. Where the same defense was raised by the Mexican government in a later case, however, Secretary Frelinghuysen took a different view of the matter. T w o American citizens having been murdered in Mexico, Morgan was instructed to request the Mexican Foreign Office that appropriate steps be taken for the 33

E v a r t s to Foster, N o . 642, June 16, 1879, M S . Desp. M e x . , V o l . 19.

34

Frelinghuysen to M o r g a n , N o . 25S, April 21, 1S82, M S . Inst. Mex., V o l . 20.

35

M o r g a n to Frelinghuysen, N o . 407, April 21, 1882, M S . Desp. Mex., V o l . 76.

36

M o r g a n to Frelinghuysen, N o . 428, M a y 13, 1882, M S . Desp. M e x . , V o l . 76.

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arrest of the offender and his prosecution and punishment. In reply to this request, Mariscal stated that, if the purpose of Morgan's note was to bring to the knowledge of the Mexican government the commission of a crime with a view to having the perpetrators thereof punished, the Mexican government would take pleasure in giving attention to the request, but that if the purpose was to lay the basis of a claim, diplomatic intervention could not possibly be admitted, both because the case did not warrant it and because the matriculation records of the Foreign Office did not show that the murdered persons were citizens of the United States. 37 On being informed of this position of the Mexican government, Secretary Frelinghuysen sent a long instruction to Morgan on the subject of matriculation. After reviewing the previous correspondence on the subject, he stated that the government of the United States was " not disposed to question the convenience of formal matriculation as evidencing the right of foreigners resident in Mexico to certain civil and domiciliary rights prescribed under the Mexican law," but the United States did question " the claim of Mexico to debar from the protection of their own government citizens of the United States who may be temporarily in Mexico and who have not matriculated." We hold under the general principles of international law, that the right of an American citizen to claim the protection of his own government while in a foreign land, and the duty of this government to exercise such protection, are reciprocal, and are inherent in the allegiance of the citizen under the constitution of his own land, and that, inasmuch as this reciprocal right on the part of the citizen and duty on the part of his government is not created by the laws of any foreign country, it cannot on the other hand be denied by the municipal law of a foreign State.

Holding thus, it is impossible f o r this gov-

ernment to accept the proposition that its right to intervene f o r the protection of one of its citizens in Mexico can only begin with, and be created b y , the matriculation of such a citizen as a foreign sojourner in Mexico, and can only exist and be exercised with respect to the redress of wrongs which such a citizen may suffer there after his name shall have been inscribed on the books of the Foreign office in the city of Mexico. 3 8 37 38

Morgan to Frelinghuysen, No. 447, June 17, 1882, MS. Desp. Mex., Vol. 77. Frelinghuysen to Morgan, No. 298, July 24, 1882, MS. Inst. Mex., Vol. 20.

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191

The Mexican government did not attempt to reply to the arguments of Frelinghuysen and Morgan on the subject at this time, and apparently refrained for a short period from raising the defense of nonmatriculation. In 1884, however, when Morgan sought to intervene in behalf of an American citizen who had been imprisoned, the Mexican Foreign Office replied that, as a matter of courtesy, it would obtain information on the case for the American Minister, but that since the American citizen in the case (Howard C. Walker) had not been registered at the Foreign Office, diplomatic intervention in his behalf would not in the future be admitted. When informed of this position, Secretary Frelinghuysen expressed his surprise " that the Mexican Government should have again resorted to so untenable a ground," especially since that government had not raised this objection in a number of previous cases presented by Morgan. Frelinghuysen referred to his instruction of July 24, 1882, and stated that, until Mexico should meet the arguments therein contained " on such basis as this government may accept, with due regard to its Consitutional and international right to protect its citizens abroad," Morgan should continue to ignore the Mexican contention that a failure to matriculate necessarily barred a citizen of the United States from the assistance of the American diplomatic representative at Mexico City. 39 Shortly afterward Secretary Frelinghuysen again referred to the question of matriculation and instructed Morgan as follows: It m a y be assumed that in providing for a system of matriculation the aim of the Mexican Government is to defend itself against unjust foreign claims, an object to which as a general principle no exception can be taken. When the Mexican Government, however, by domestic act undertakes to sever the relations of dependence and protection which exist between the citizens of a foreign state and their own government, it is clear that it goes beyond legitimate bounds and that acquiescence in such measures is not to be expected from the government whose constitutional and international rights are so infringed. 4 0 30

Frelinghuysen to Morgan, No. 595, June 23, 1884, MS. Inst. Mex., Vol. 21. Frelinghuysen to Morgan, No. 681, November 4, 1884, MS. Inst. Mex., Vol. 21. 40

L I M I T A T I O N S ON

PROTECTION

In the case of another imprisoned American citizen (Thomas R. Monahan), Frelinghuysen, upon being informed that the Mexican government denied the right of interposition in the case because of the failure of the prisoner to matriculate, instructed Morgan as follows: T h e r e is perhaps in the relations of the t w o countries no one s u b j e c t upon w h i c h an accord is more necessary than this of the right of the citizens of the one country in the territory of the other to the protection of their o w n government.

T h e M e x i c a n law of matriculation seeks to impair this inalien-

able d u t y of protection b y making its exercise depend upon a domestic law of one of the parties.

W e hold, in broad terms that it is not within the scope

of municipal legislation t o impair the relation of an alien t o w a r d his own government, or to impair the international right of his g o v e r n m e n t , as one a m o n g equals in the c o m m u n i t y of States, to intervene w i t h another G o v e r n m e n t to secure him j u s t i c e . 4 1

Morgan presented this view to the Mexican government, but the latter declined to alter its position on the subject. The Mexican Foreign Minister merely stated in reply that the protest of the United States against the matriculation laws did not exonerate the government of Mexico from the duty of respecting them, nor foreigners from the consequences of failure to observe them. He also referred to the position taken by the government of the United States in 1873 that the matriculation law was not illegal and could not properly be protested against. 42 Nevertheless, it appears that the prisoner in this case was subsequently released. 43 In response to a request from Secretary Frelinghuysen as to the operation of the matriculation laws, Morgan brought out the fact that, since the laws had been promulgated, only 255 citizens of the United States had been matriculated, according to the records of the Legation, and of these, 124 had been matriculated since 1880. Morgan stated that this represented but a fraction of the American citizens who had been in Mexico during the period. He asserted that few Americans coming to Mexico 4 1 Frelinghuysen to Morgan, No. 698, December 20, 1884, M S . Desp. Mex., Vol. 21. 4 2 Fernandez to Morgan, December 18, 1884, enclosure with Morgan to Frelinghuysen, No. 951, December JO, 1884, MS. Desp. Mex., Vol. 84. 4 3 Morgan to Frelinghuysen, No. 960, January 1, 1883, M S . Desp. Mex., Vol. 84.

LIMITATIONS

ON

PROTECTION

193

k n e w of the e x i s t e n c e of the m a t r i c u l a t i o n r e q u i r e m e n t , a l t h o u g h t h e L e g a t i o n h a d d o n e e v e r y t h i n g in its p o w e r to b r i n g it t o t h e i r n o t i c e a n d h a d a d v i s e d t h e m to c o m p l y w i t h it.

Morgan

also

s t a t e d t h a t , in a n u m b e r of c a s e s of i m p r i s o n m e n t , the q u e s t i o n of n o n m a t r i c u l a t i o n h a d n o t b e e n r a i s e d b y the M e x i c a n g o v e r n m e n t , a n d in s e v e r a l o t h e r c a s e s , a l t h o u g h the d e f e n s e h a d been r a i s e d , relief h a d n e v e r t h e l e s s b e e n a f f o r d e d t o the A m e r i c a n c i t i z e n s i n volved." In

response

t o this

despatch,

Secretary

Frelinghuysen

re-

s t a t e d h i s o p p o s i t i o n t o t h e M e x i c a n m a t r i c u l a t i o n l a w s in a n i n s t r u c t i o n w h i c h h a s since b e c o m e a c l a s s i c a l s t a t e m e n t of policy

of

the A m e r i c a n

government

on d i p l o m a t i c

the

protection.

T h a t instruction w a s as follows: I t appears that matriculation of foreigners consists in registering their names and nationality in the Foreign Office of Mexico. T h e Mexican Government contends that the national character of the foreigner is proved b y this matriculation, which entitles him to special privileges and obligations called the rights of foreigners, these are: First, T h e right to invoke the treaties and conventions existing between his country and Mexico.

Second: T h e right to seek the protection of his own Government.

T h e y further contend that the want of a certificate of matriculation will be considered sufficient to deny to this Government the right of diplomatic intervention in any case. Against this contention this Government protests as an interference in its relations to its citizens. T h e Government of the United States recognizes the right of Mexico to prescribe the reasonable conditions upon which foreigners may reside within her territory and the duty of American citizens there to obey the municipal laws; but those laws cannot disturb or affect the relationship existing at all times between this government and one of its citizens.

The duty is always

incumbent upon a government to exercise a just and proper guardianship over its citizens, whether at home or abroad.

A municipal act of another state

cannot abridge this duty, nor is such an act countenanced by the law or usage of nations. N o country is exempted from the necessity of examining into the correctness of its own acts.

A sovereign who departs from the principles of public

law cannot find excuse therefor in his own municipal code. This Government being firmly convinced that the position of the Mexican Government is untenable cannot assent to it. 44

Morgan to Frelinghuysen, No. 962, January 2, 1885, MS. Desp. Mex., Vol. 84.

194

LIMITATIONS ON

PROTECTION

Y o u will so inform the Minister f o r Foreign Affairs in such form as y o u m a y deem proper. 4 5

T h e Mexican government did not officially admit that the position of the United States on the matriculation laws was correct. Nevertheless, the attitude of the Mexican government toward foreigners had in the meantime undergone a decided change in the direction of greater encouragement to immigration and the introduction of foreign capital in Mexican enterprises. T o this end a new law regarding foreigners and naturalization was adopted in 1886, and in this law compulsory matriculation was abolished. Matriculation certificates might still be granted, but, while they constituted a legal assumption of foreign citizenship, other methods of proof were also admitted. 40 T h e long dispute regarding the matriculation laws thus ended satisfactorily for the United States. It can scarcely be claimed, however, that this result was brought about by the force of the legal arguments advanced by the Department of State, or that it represented an acknowledgment by the Mexican government of the illegality of the matriculation laws. T h e change in policy of that government was due rather to a change in the practical situation which made the maintenance of the matriculation requirement no longer necessary or desirable. While the law of 1886 abolished the matriculation requirement, the legislative restrictions on the ownership of real property by foreigners remained the same. These restrictions had from time to time been the subject of diplomatic discussion, but the United States did not succeed in bringing about any modification of Mexican policy in this respect, even to the extent of bringing it into accord with the decisions of the Claims Commission of 1868. In the negotiations preceding the recognition of the D i a z government, Foster had taken up the question of the right of Americans to hold property along the frontier, and had endeavored to 4 5 Frelinghuysen to Morgan, No. 732, February 17, 1885, M S . Inst. Mex., Vol. 21. 4 6 Article 39, L a w of Foreigners and Naturalization, June 7, 1886, trans, enclosed with Morgan to Bayard, No. 241, MS. Desp. Mex., Vol. 89.

L I M I T A T I O N S ON

PROTECTION

secure the abrogation of the restriction embodied in the law of February i , 1 8 5 6 , as a condition of recognition.

He did not assert

that this restriction was illegal, but stated that it was the cause of much complaint and inconvenience, and should be removed if cordial relations were to be restored.

Vallarta, however, de-

clined to enter into any stipulation in this regard on the plea that there were some pending questions between Mexico and Guatamala regarding ownership of real estate along the southern frontier that had to be settled first. 47 In 1 8 7 9 , Foster reported to Evarts that the Mexican government had granted a concession for the colonization of the island of Ciare off the coast of the state of Sonora and that this concession bore the specific provision that citizens of the United States should not be admitted as colonists. 48

In reply, Evarts asserted

that this exclusion was invidious and directly at variance with the third article of the T r e a t y of 1 8 3 1 stipulating for perfect equality between citizens of the United States and other foreigners in Mexico. 49

Foster accordingly filed a protest, but the Mexican gov-

ernment declined to alter its policy in the matter.

The Minister

of Foreign Affairs asserted that Mexico had the full right to place limitations upon the acquiring and holding of real estate by foreigners in Mexico.

H e referred to the various laws which Mexico

had adopted in the past on the subject and asserted that such laws were not in contravention of the Treaty of 1 8 3 1 , which conceded equality only with respect to navigation and commerce. H e added that the Mexican government was not without powerful reasons for limiting the acquisition of real estate by foreigners in the frontier territories, and stated that the separation of Texas had been a severe lesson which Mexico would not forget. 50 In response to this note, Secretary Evarts insisted that the limitation in question w a s " invidious, unnecessary, at variance 47 Enclosures 4 and 6 with Foster to Evarts, No. 597, September 4, 1877, M S . Desp. Mex., Vol. 60; also Foster to Evarts, No. 625, November 5, 1877, M S . Desp. Me*., Vol. 60. 48 Foster to Evarts, No. 890, February 18, 1879, M S . Desp. Mex., Vol. 66. 49 Evarts to Foster, No. 609, March 26, 1879, M S . Inst. Mex., Vol. 19. 00 Ruelas to Foster, No. 1, enclosure with Foster to Evarts, No. 944, May 27, 1879, M S . Desp. Mex., Vol. 67.

196

L I M I T A T I O N S ON P R O T E C T I O N

with the treaty and quite incompatible with those friendly relations which the obvious interest of both countries requires should be maintained between them." The government of the United States did not expect that Mexico would again make extensive grants of land to be colonized by American citizens. Mexico, he said, had a perfect right to exercise its discretion upon that point, but this should not extend so far as to exclude American citizens from acquiring real estate in the bordering states of Mexico. Such an exclusion was " both impolitic and unjust, for it cannot fail to cause an irritation which, sooner or later, might lead to other than peaceable courses to make such acquisitions." He accordingly expressed the hope that the policy of the Mexican government on these subjects would be changed. 51 Foster communicated Evarts' protest to the Mexican government but subsequently wrote to Evarts that it was highly improbable that any reply would be made thereto. He saw no reason to believe that the policy of the Mexican government on the subject would be changed as a result of the protest. So far as the records show, his prediction was correct. The Mexican government made no reply to the protest, nor did it modify the restrictions against the ownership of property by American citizens along the northern border. The ruling of the Commission of 1868, that Article 30 of the Mexican Constitution regarding the effect of ownership of real property on foreign nationality was permissive rather than obligatory, brought no change of attitude on the part of the Mexican government on the subject. In 1883, Morgan was informed that the Mexican Foreign Office had refused to grant a certificate of matriculation to an American citizen on the ground that he had purchased real estate without declaring his intention of reserving his foreign nationality and had accordingly become a citizen of Mexico. Morgan thereupon addressed a circular to all American consular officers in Mexico advising them to call the attention of American citizens in Mexico to the constitutional provision in question. He also wrote to Frelinghuysen that few Americans in 51

Evarts to Foster, No. 646, June 23, 1879, M S . Inst. Mex., Vol. 20.

LIMITATIONS ON PROTECTION

197

Mexico were familiar with the Constitution, and that this might bring them into trouble, since, according to Mariscal's interpretation, even a matriculated citizen of the United States who purchased real estate in Mexico without the required declaration became a Mexican citizen and was subject to military service. 52 It does not appear that the Department of State took any exception to the ruling of the Mexican government in this caçe. T h e law of 1886 which abolished matriculation as a compulsory requirement at the same time reënacted the stipulation in Article 30 of the Constitution regarding the effect of acquisition of real property upon foreign nationality. This provision aroused no comment from the Department of State when the text of the law was first published. However, when the American Legation in Mexico later published a notice again calling the attention of Americans in Mexico to the effect of acquiring real estate under this law, Secretary Bayard wrote to Manning (who had replaced Morgan as Minister) that the provision in question contained a principle which the government of the United States was compelled to regard as inadmissible. T h e United States, said Bayard, while freely conceding the right of expatriation, had always maintained that the transfer of allegiance " must be by a distinctly voluntary act," and that the loss of citizenship could not " be imposed as a penalty, nor a new national status forced as a favor, by one government upon a citizen of another." 5 3 Bayard did not attempt to explain why a voluntary acquisition of real estate in Mexico without a declaration of intention to preserve foreign nationality in accordance with the Constitution of 1857 and the law of 1886 should not be regarded as a " distinctly voluntary act." He merely referred to the opinion of the Claims Commission of 1868 on the subject. Manning informed Mariscal of the position taken by Secretary Bayard, but Mariscal merely stated in reply that he could not discuss the right which the Mexican government had to issue laws emanating directly from the provisions of its Constitution, unless some specific case should 52 63

Morgan to Frelinghuysen, N o . 627, M a y 28, 1883, MS. Desp. Mcx., Vol. 79. Bayard to Manning, No. 18, November 20, 1886, MS. Inst. Mex., Vol. 21.

198

L I M I T A T I O N S ON P R O T E C T I O N

arise to give occasion for such discussion.54 Without further discussing the question, Manning sought to induce Mariscal to bring about an extension of the time within which Americans then owning real estate in Mexico might declare their intention to preserve their nationality. His request was subsequently granted by the Mexican government, the original period of six months being extended by an additional period of eight months in which such a declaration could be made." 54 Mariscal to Manning, December i, 1886, enclosure with Manning to Bayard, No. 28, December 3, 1886, MS. Desp. Me*., Vol. 91. 65 Manning to Bayard, No. 147, June 7, 1887, M S . Desp. Mex., Vol. 93.

CHAPTER VIII DENIAL

OF JUSTICE A N D LOCAL

EXHAUSTION

OF

REMEDIES

THE three previous chapters have outlined the defenses raised by the Diaz administration, on the whole successfully, against the demands of the United States in certain specific types of cases. That administration was equally successful over a period of years in parrying the demands of the United States on other types of cases of diplomatic protection. The main defenses relied upon at this time were drawn from the fundamental doctrine of the supremacy of the national administration of justice in all matters falling within its jurisdiction, a doctrine that, in the eyes of the Mexican government, applied alike to foreigners and natives. This doctrine found specific expression in the associated rules of denial of justice and exhaustion of local remedies. This defense was of course not new to the officials of either government. It had, in fact, been advanced by the Mexican government against the first demands made by Joel Poinsett on behalf of American citizens back in 1825. Not until the Diaz régime, however, did the doctrine become the subject of extensive diplomatic discussion between the two governments. When that régime came into power, it found a large number of American diplomatic claims outstanding and an empty treasury. It also found a strong public sentiment against making any concession to the United States on any of the demands which it had made as a price of recognition, including the settlement of outstanding claims. President Diaz had, therefore, every reason to combat the implication of legal liability on all subjects of diplomatic protection presented by Foster. The most convenient method of meeting the situation was to call into play the doctrine of the supremacy of the Mexican courts in all matters falling within the scope of their jurisdiction. This doctrine was sufficiently 199

200

DENIAL OF JUSTICE

elastic to cover nearly all the types of cases habitually espoused by the United States, since the Mexican judicial system provided, in theory at least, a forum for the hearing of all kinds of complaints of individuals, either against Mexican officials or against the government itself. Vallarta, first Minister of Foreign Affairs under Diaz, uniformly advanced the rule of local redress in every complaint presented by Foster on behalf of American citizens. Mariscal likewise relied upon the same defense and developed it to a degree that threatened to reduce the exercise of diplomatic protection almost to the vanishing point. In substance, his doctrine embraced the following assertions: i ) no complaint of a foreigner, whether against a Mexican official or against the government itself, could be made the subject of diplomatic discussion until all possible local remedies had been exhausted; 2) the fact that an individual foreigner believed for any reason that recourse to the local courts was useless was not a sufficient ground to justify his government in taking up his complaint diplomatically; 3) only in case of a notorious denial of justice in re minime dubia in the highest court of appeal was diplomatic interposition proper; 4) such denial of justice must be so obvious as to be apparent to everyone (presumably including the Mexican government itself), and it was not sufficient that the government of the injured individual so regarded it; 5) where a foreigner sought his remedies in the local courts and a judgment was rendered on his case in accordance with the local procedure, such judgment was final and binding and could not even be discussed through diplomatic channels. In substance, Mariscal's doctrine could be reduced to the proposition that diplomatic representation was only proper in the event that an injured foreigner was denied his day in court as provided by the local laws. This doctrine was strenuously resisted by the successive American Secretaries of State and American Ministers at Mexico City during the early years of the Diaz régime. While not denying the existence and force of the rule of local redress, these officials realized, consciously or unconsciously, that, if applied in the manner advocated by the Mexican government, it would practi-

DENIAL OF JUSTICE

20I

cally tie the hands of the Department of State in most matters of diplomatic protection. Not all of these officials, however, saw the practical situation in the same light, and this fact seems to account in large part for the diverse views on the theoretical aspects of the question that were advanced by different American officials at this time. D E C I S I O N S OF THE C L A I M S COMMISSION OF

1868

Before discussing the diplomatic exchanges that took place on the subject, it will be well to examine the decisions of the Claims Commission of 1868. Such an examination reveals quite as much inconsistency in the views of the Commissioners as in the subsequent expressions of opinion of the two governments on the subject. Frequently the requirement of the exhaustion of local remedies was stated by the Commission as a fixed rule, and cases in which claimants had failed to show that they had sought redress in the local courts were dismissed on that ground. On the other hand, in a large number of cases where there was no showing that the claimant had pursued his local remedies, pecuniary awards were made by the Commission, either without any mention of the subject at all, or with a vague statement that the claimants had been dealt with unfairly by the Mexican officials. In the claim of Francis W. Rice v. Mexico, Docket No. 7, which was based on the allegation that the claimant had been imprisoned for three days without any specific charge being brought against him, Umpire Lieber granted an award on the ground that the " habeas corpus principle " demanded, among other things, that prisoners should be given a statement of the reason for their arrest, issued by lawful authority. Nothing was said by the Umpire about any necessity of taking an appeal to a higher court or of seeking redress against the inferior authority who had detained the claimant in prison, although it was clear from the record that no such recourse had been taken by the claimant in this case. 1 1

Commissioner W a d s w o r t h in his opinion referred to the provision of

the

Mexican Constitution of 1824 that prisoners should not be kept for more than sixty hours w i t h o u t the filing of charges, and stated that " if this arbitrary a n d severe

202

DENIAL OF JUSTICE

In the case of Garrison and Fretz v. Mexico, Docket No. 8, an award was granted by Umpire Lieber for damages alleged to have resulted from a decision of a local Mexican court, although no appeal had been taken from the decision and no judicial remedy sought against the judge. The Mexican Commissioner, Palacio, strenuously insisted in this case that there could be no claim without an exhaustion of local remedies. " No one can ever say," he said, " that justice has been denied to him if he does not prove to have asked for it, in such manner as to have exhausted all material and legal means in his power." It was an incontestable principle of international law that a country could not be held responsible to a foreign government for injustices done by judges or tribunals which could have been remedied by legal means established in that country. Every tribunal was liable to commit offenses against the rights of litigants, and for this reason there was everywhere in existence a system of judicial remedies. T h e action of the inferior courts of a country is not the action of the sovereign, and it cannot h a v e this character unless the highest judicial power before which the case m a y be brought confirms the injustice of the inferior or refuses to apply a remedy to it, a f t e r having been requested to do it in the form prescribed b y the local law.

Palacio referred to the provision of the Treaty of 1831 granting to the citizens of the respective countries the same judicial authority is exceeded by an hour, I am compelled to regard it as an outrage, and warned by my regard for the personal rights of every American and Mexican citizen, to say to the Dictator and his usurping officers, ' the limited rights of the individual — the little liberty left by your arbitrary government must be respected. Do not so much as touch it with your finger.' " The Mexican Commissioner maintained, on the other hand, that the delay in informing the claimant of the charges against him was in entire accordance with local Mexican procedure, and afforded no basis of complaint simply because it was not in harmony with the corresponding procedure of the United States. He quoted a statement of former Secretary of State Webster to the effect that so long as the local laws were faithfully followed in proceedings involving foreigners, no complaint could be made, even though the proceedings differed greatly from those to which the foreigner was accustomed in his own country. This, said the Mexican Commissioner, was the only sound principle to be applied in the case and the only one consistent with the equal sovereignty of independent nations. But Umpire Lieber took no notice of this argument in his decision on the case.

D E N I A L OF J U S T I C E

203

rights and remedies enjoyed by those of the country in which they might live, and asserted that this provision might be held to put an end to the right of requesting diplomatic interposition altogether, even in case all remedies afforded by the local laws had been exhausted without result. However, without carrying the doctrine so far, it was evident that, under the treaty, a foreigner to whom the tribunals of a country were open could never say that his rights had been injured " so long as he is able to make use in the country of any legal remedy for the purpose of obtaining the triumph of his right." To say that a foreigner need not exhaust all his legal remedies because of the belief that the courts would not do him justice was " no more than a gross and groundless insult." So long as a competent authority existed which could remedy an unjust act of an inferior authority, the interposition of the government of the person injured by that act was premature and contrary to international law, and ought not to be admitted either by the government against which it was made or by any international tribunal. However, the Umpire overruled the Mexican Commissioner in this case and held that the failure to exhaust local remedies was no bar to an international claim before the Commission. On the question of the finality of the decisions of local courts, the Umpire stated as follows: But it is objected that the case has been adjudicated by the proper Mexican court and cannot be opened before this Commission; that therefore it ought to be dismissed. It is true that it is a matter of the greatest political and international delicacy for one country to disacknowledge the judicial decision of a court of another country, which nevertheless the law of nations universally allows in extreme cases. It has done so from the time of Hugo Grotius. The difficulty and delicacy however, is very much lessened when it is believed that so many irregularities or wrongs have been committed, in two countries, by the authorities of the one against the citizens of the other, that these wrongs by the respective authorities are spoken of in a special treaty or convention, as that under which our Commission has assembled, in which the governments of these two countries agree to redress the wrongs as much as possible, according to justice and equity.

There was no doubt in the Umpire's mind that the Mexican court had acted with great irregularity and some violence in the

204

D E N I A L OF J U S T I C E

case and that it had been " by no means fully adjudicated." The whole case, he said, was wrapped in confusion and presented a very fair subject to be adjudicated by the Commission. Similarly, in the case of Augustus Jonan v. Mexico, Docket No. 70, Umpire Thornton made an award of $35,000 in favor of an American citizen for unjust treatment by the judicial authorities of Mexico, in spite of the fact that the claimant had not carried his case to the highest court of appeal. The basis of Jonan's complaint was that he had been subjected to prolonged legal proceedings in Mexico, during the course of which the Mexican authorities had been guilty of various irregularities. There was also some evidence that the proceedings had been instituted by a Mexican named Limantour to prevent Jonan from returning to California to testify in a suit pending against Limantour in the American courts, and that there had been some collusion between Limantour and the Mexican judicial officials. In its defense against this claim the Mexican government insisted that, since the claimant had voluntarily renounced the recourse to remedies open to him to obtain reparation of his wrongs in the Mexican courts, he could not complain of any denial of justice. Nor could he complain against the final judicial decision in his case " without violating the principles of respect for such decisions, as res judicata, which is acknowledged among all enlightened nations." The Mexican Commissioner upheld this view and ruled that the claim should be dismissed. He asserted that there had been no unnecessary delay in the proceedings and that the acquittal of the claimant removed all cause for complaint. He also denied the assertion that the acts for which the claimant was tried were not in fact within the jurisdiction of the Mexican courts. Umpire Thornton ruled, however, that the claimant was entitled to compensation. He held that the arrest of Jonan had been illegal in form and that most of the offenses with which he was charged had not been within the jurisdiction of Mexican tribunals, being based on acts committed in the United States. He found that, from the beginning to the end of the proceedings, the forms of law had been infringed to the prejudice of the accused. He added that the Legation of the United States had

DENIAL OF

JUSTICE

205

called the attention of the Mexican government to the lack of jurisdiction of the local courts over the question at issue, and that the Mexican government " having been thus warned and having abstained from attempting to prevent these illegal acts, which it had full power to do, assumed the responsibility for those acts." In the claim of Thomas Dolan v. Mexico, Docket N o .

2

79,

Umpire Thornton made an award for " unnecessary and illegal delay " in the trial of an American citizen involved in the Zerman expedition, and for harsh treatment to which the claimant had been subjected, although he held that the Mexican authorities had been justified in arresting the claimant.

T h e fact that

the claimant in this case had not endeavored to obtain redress for his wrongs in the courts of Mexico was not taken into account by Umpire Thornton in his decision. Similarly, in the case of Stillman D . Willis v. Mexico, Docket No. 89, Umpire Thornton granted an award to an American citizen in compensation for a fine levied upon him b y Mexican officials, which Thornton considered to have been unjustified.

Noth-

ing was said by the Umpire about any necessity for the claimant to pursue his remedies against the subordinate officials in the Mexican courts, although this necessity had been insisted upon by the Mexican government in its argument on the claim. Likewise, in the case of Frederick Bronner v. Mexico, Docket No. 1 1 5 , Umpire Thornton granted an award in favor of an American citizen who had not exhausted the remedies available to him in the Mexican courts.

T h i s claim was based on the con-

fiscation by Mexican customs authorities of certain goods imported by the claimant on the allegation that the invoices of these goods were not in due form and that the defects therein proved an intent to defraud.

It appears that the invoices had

2 It would seem that under this rule, foreigners involved in proceedings in the local courts should lose no time in bringing to the attention of their diplomatic representatives any irregularities in the proceedings in order to establish the responsibility of the government internationally in the event that the government took no steps to prevent thei consummation of these irregularities. This doctrine should be compared with the position steadily maintained by the Mexican government that diplomatic discussion of any case was improper until a denial of justice had been sustained in the highest court of the land.

206

DENIAL OF

JUSTICE

in fact been defective as charged, but that a corrected set of invoices had subsequently been sent b y mail to Mexico and had arrived before the goods. T h e claimant appealed against the decision of the collector of customs confiscating the goods, but the local court upheld the action of the collector. The claimant then appealed to the local court of appeals, which confirmed the sentence of the court of first instance. N o appeal was taken to the federal courts of Mexico from this decision. N o charge was made that the collector or the trial judge had been corrupt, but merely that their decision had been unjust. T h e Mexican Commissioner, Zamacona, ruled that the claim should be dismissed on the ground that, since the penalty of confiscation had been given upon a formal trial and had been confirmed by the local court of appeals, it was not an injury which could constitute the grounds for an international claim, nor did it involve a denial of justice. He defined denial of justice as " an injustice so great and so palpable as not to be explainable as an error in the application of the law, doubtful and difficult to be understood; nor admitting the supposition that the Courts acted in good faith in giving an erroneous decision." He asserted that, on the evidence presented, the claimant had failed to show an unjust or arbitrary decision in re tninime dubia. T h e American Commissioner, Wadsworth, held, on the other hand, that the action of the authorities " was contrary to justice and equity, and the condemnation injurious." He added that both the Commission of 1868 and the prior AngloAmerican Commission had " affirmed their power and duty to review the decisions of the Municipal Courts, and in cases where no appeal had been taken from the Judgments of the lower courts." Umpire Thornton agreed with Commissioner Wadsworth that the Mexican government was liable for damages in this case. While stating that he was " always most reluctant to interfere with the sentences of judicial courts," he held that in this instance the decision was " so unfair as to amount to a denial of justice." H e thought that the evidence against the claimant did not prove any intention to defraud, but rather that it showed unusual precautions to prevent the possibility of any such accusation. H e

DENIAL OF JUSTICE

207

accordingly overruled the decision of the Mexican courts on this case and gave the claimant an award, in spite of the fact that the claimant had taken no appeal to the highest courts open to him. T h e claim of Samuel A. Belden v. Mexico, Docket No. 131, was one of the tobacco claims that arose after the war of 1846. During the occupation of Matamoros by American troops, large quantities of American tobacco had been brought into that port b y American merchants. Article 19 of the T r e a t y of Guadalupe Hidalgo stipulated that goods brought into the ports and interior points of Mexico during occupation by American troops should not be subject to import or sale duties or to confiscation after withdrawal of the troops. There had been some diplomatic discussion between the two governments as to whether the tobacco at Matamoros should be permitted to be taken into the interior of Mexico and sold without the payment of import duties. There was in existence at that time a tobacco monopoly created by Mexican law which would have prevented the introduction of this tobacco into the interior of Mexico, except for the provisions of Article 19 of the treaty. T h e Mexican government had finally given a permit for the transportation of the tobacco owned by Belden into the interior, but in spite of this permit the tobacco had been seized b y order of a Mexican court on the complaint of the owners of the tobacco monopoly, and a fine levied on Belden. As this fine had not been paid, the store and stock of tobacco of Belden's company at Matamoros had been seized, and Belden himself had fled to T e x a s to avoid arrest. He subsequently filed a claim with his government for the value of the property seized. The Mexican Commissioner, Palacio, held that the claim should be dismissed. He asserted that the stipulations of the treaty were to be dealt with as laws " whose declaration and application, in cases of dispute to be decided by them, indubitably pertained to the courts of the country in which the dispute had arisen." In Mexico, as in the United States, the application of a law to private interests was the business of the courts, which were obliged to fulfill that duty in accordance with the rules established for judicial proceedings. It would be of no avail to say or even to prove that the fiscal laws of Mexico were unjust, severe,

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or too rigorous. " T o that we could reply that they were the laws of the country in which Belden resided, that he had submitted himself to them of his own will, and according to the T r e a t y of 1831, and that their application, whatever their defects might be, was perfectly legal, and could not be attacked in the light of international law." T o hold a government responsible for judgments rendered by its courts in conformity with its legislation, it would be necessary to have satisfactory and convincing evidence that such courts " h a d acted by corruption, with malice, and moved by the criminal desire of causing injuries to somebody under the pretext of the application of a law." Even if it was perfectly established that a subordinate judge of Mexico had violated any of the rights of the claimant in this case, that would not be sufficient in itself to justify an award. Before this could be done it would be necessary to show that the supreme authorities of Mexico had not remedied the injustice, after having been requested to do so in accordance with the local laws. N e i t h e r international law nor the stipulations of any treaty can promise a foreigner that no i n j u r y will ever be caused to him b y the citizens or authorities of the country in w h i c h he resides.

W h a t international law, and the

treaties promise is that if a foreigner suffers an i n j u r y or is the v i c t i m of an injustice his complaint will be heard by the authorities and the d a m a g e redressed b y means of the remedy provided for in the laws of the c o u n t r y .

But

if the injured p a r t y does not claim anything, if the superior authorities are not afforded the opportunity to take knowledge of the i n j u r y and order its reparation, it cannot be said that they h a v e neglected their duties

whose

exercise nobody p r o v o k e d , or refused to administer a justice w h i c h n o b o d y a s k e d of them.

In those cases the responsibility f o r the i n j u r y c o m m i t t e d

remains exclusively in its author, and is not transmitted to the g o v e r n m e n t , w h i c h has done nothing against the rights of the injured p a r t y .

Umpire Lieber, however, overruled the contentions of the Mexican Commissioner and held that an award should be granted to the claimant. In doing so, he asserted that his opinion had never been clearer or more distinct than in this case. H e did not discuss the issues in his opinion, but merely stated that " according to all the facts known to us, and according to public justice the claimants in this case are entitled to an award against the government of Mexico."

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Among the goods in Belden's store that had been seized by the Mexican authorities was some merchandise belonging to another American citizen, Isaac Moses. Moses appears to have made no attempt to recover for the seizure of his goods in the local Mexican courts but merely brought a claim before the Commission of 1868 (Isaac Moses v. Mexico, Docket No. 1 9 7 ) . The Mexican Commissioner advanced the same argument in this case that " the wrongs caused by the judicial authorities do not make the Nation responsible unless they come from an authority against whose acts there is no remedy provided by the laws of the country." According to the statement of the American Minister at Mexico City, Moses had not been willing to appeal to the Mexican courts for redress because, in his opinion, they were too corrupt to expect justice from them; but according to the Treaty of 1 8 3 1 , Americans in Mexico were entitled to the enjoyment of the same legal remedies as natives, and were bound to yield obedience to the laws and authorities of the country. The Mexican Commissioner concluded that if Moses, knowing this fact, had not wished to be judged by the courts of Mexico, it would have been well for him not to have gone to Mexico at all, or to have acquired any property there which might come under the power of the local authorities. Commissioner Wadsworth, on the other hand, thought that a complete answer to Palacio's argument regarding the necessity of exhausting local remedies was found in the fact that the original proceedings in Mexico by which the goods were confiscated had been directed against Belden, and Moses had not been a party to them. Hence the latter was not in a position to complain of that decision nor take an appeal from it. Even if it were conceded that Moses had a remedy under the local law which he did not pursue, Wadsworth held that this would not bar the investigation of the claim by the Commission. Any American citizen injured by the authorities of Mexico could seek redress before the Commission. If the injury arises out of a judicial decision, it may be a question whether it can be redressed, where the party fails to appeal, because it may be urged that he is not injured until the final decision.

But however sound this m a y be

(and I give no opinion), it does not apply where the injured party has never

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sought a remedy in the courts, and has n o judicial decision to complain of. F o r although he m a y have had a remedy there, y e t the convention has also given jurisdiction to this commission of e v e r y claim f o r injuries to persons or property since F e b r u a r y 2, 1848, w h i c h has not been settled. 8

Wadsworth was willing to admit that local remedies should be exhausted before nations resorted to reprisal or war because of injuries to their nationals, but he held that such requirement was not a necessary preliminary to the amicable adjustment of claims as contemplated by the Convention of 1868. Umpire Lieber granted an award in this case as in the case of Belden. In this instance he took note of the argument of the Mexican Commissioner that the claimant should have exhausted his local remedies, but concluded that it was no bar to the jurisdiction of the Claims Commission over the case. The Commission, said Lieber, was an extraordinary one; " i t is no American or Mexican Court of Appeal." He held that the claim of Isaac Moses fell distinctly within the limits prescribed by the convention and that the Commission was bound to adjudicate the claim. The case of Turner, Renshaw & Co. v. Mexico, Docket No. 143, was another tobacco case arising out of circumstances similar to those of the Belden case. In this instance the owners of the tobacco had applied for permits from the Mexican customs officials to take the tobacco into the interior of Mexico for sale, but had been denied such permits and had been compelled to sell their tobacco at the ports of entry at a sacrifice. Umpire Thornton granted an award in this case without reference to the question of exhaustion of local remedies, although the Mexican Commissioner had advanced this as a ground for refusing to recognize the claim.4 In the case of Abel G. Alexander v. Mexico, Docket No. 162, Under this construction of the rule of local redress, it would seem to be advantageous for foreigners to avoid any proceedings in the local courts on injuries sustained at the hands of authorities. If they once instituted such proceedings it would be necessary for them to pursue their remedies to the highest courts before they could file a diplomatic claim. 4 In like manner, Umpire Thornton made an award in the case of Felix Maxon v. Mexico, Docket No. 183, for losses growing out of similar circumstances, without taking note of the defense raised by the Mexican Agent that the claimant had not exhausted his local remedies. 3

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Commissioner Wadsworth, speaking for the Commission, made an award to the claimant without any reference to the question whether local remedies had been exhausted or not. In this case a Mexican colonel in command of troops had taken a horse and other personal property from the claimant and had detained the claimant for one night. It was argued on behalf of the Mexican government that the officer in question " w a s but an inferior subaltern, and as such he should have been called before his respective superiors, the claimant having no right to come before this Commission until after having exhausted his legal remedies." N o note was taken of this argument by either the American or Mexican Commissioner, who agreed that an award should be made. The claim of " T h e M a r y B r e w e r " v. Mexico, Docket No. 165, arose out of the seizure of goods by customs officials for alleged violation of the revenue laws of Mexico, although the owner of the goods had been furnished with entry permits by the Mexican government. The Mexican Commissioner, Zamacona, insisted that the condemnation of the goods had taken place before a competent tribunal and that there had been grounds for the seizure of the goods. Furthermore, the claimant had not exhausted his legal remedies, since he had left the port while the suit was pending and had taken no appeal therefrom, but had sought instead the assistance of the American Minister at Mexico City. Umpire Thornton, however, made an award in favor of the claimant. He expressed the opinion that there was not sufficient proof that the proper forms had been complied with on the trial or that the requisite steps had been taken to notify the claimant before the sentence had been pronounced. He held that, since permits had been issued covering the goods in question, the allegation that they had been fraudulently imported should have been shown by the clearest evidence and that the goods should not have been confiscated on mere probabilities. The failure of the owner of the goods to pursue his remedies in the local courts was cited by the Umpire only as a reason for fixing the damages at a smaller sum than had been claimed by the owner. In the case of Mather and Glover v. Mexico, Docket No. 178, the Commission again gave an award to claimants who had not

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exhausted their local remedies. This claim arose out of the seizure by Mexican customs officials of a sum of money in silver coin on the ground that it had been transported in violation of the fiscal laws of Mexico. The owners appealed from this decision to the district judge, who decided that the money should be returned to them, but at the same time rejected their claim for indemnity for the loss of the use of the money during the proceedings. The Mexican customs officials appealed from this decision to the Circuit Court, which revoked the previous decision and declared the forfeiture of the money. Thereafter, the claimants appealed to the Supreme Court of Mexico. That court overruled the Circuit Court and upheld the original decision, including that part which denied the claimants any compensation for the loss of the use of the money. Their claim before the Commission of 1868 was based on this latter feature. Commissioner Palacio expressed the opinion that the jurisdiction of the Mexican courts was exclusive on all questions dealing with the fiscal laws and could not be the subject of international discussion or reclamation. He further pointed out that the appeal on behalf of the government from the first decision had only related to the acquittal of the accused and not to that part of the judgment which refused indemnification. As the claimants did not appeal from this part of the judgment, the legal consequence was that it became res adjudicata as against them and could not be further discussed. They could have brought this question before the Circuit Court and also before the Supreme Court but had failed to do so, and it accordingly could not be said that the decision of the Supreme Court was a violation of justice in re minime dubia. Umpire Lieber held, however, that the judgment of the Mexican courts on the subject of indemnification could not be looked on as res adjudicata since the appeal to the Claims Commission was, among other things, " for the very purpose of getting redress for wrongs, asserted to have been suffered at the hands of the Mexican Government." The Commission was " not a link in the common administration of justice, in the one or the other country, nor bound by anything but by the principles of justice and equity, progressively acknowledged by the jurisprudence of our whole race,

D E N I A L OF J U S T I C E

213

and the law of nations of that same race." Under all the circumstances, he decided that indemnification should be paid to the claimants for the loss of the use of their money plus an amount for legal and other expenses undergone by them as a result of the seizure of the money. The case of Schneider v. Mexico, Docket No. 195, is another instance in which the Commission of 1868 made an award without going into the question of exhaustion of local remedies, although the Mexican Commissioner insisted that this should have been done. In claims for losses and damages sustained at the hands of federal troops, requisitions of property for military uses, forced loans and other credits, the Mexican government and the Mexican Commissioner consistently maintained that claimants should have sought redress under the laws of August 20 and November 19, 1867, which provided for the presentation and adjustment of such claims by a Mexican Board of Liquidation. Such a defense was raised in the case of Anderson and Thompson v. Mexico, Docket No. 333. The Mexican Commissioner asserted that thousands of claims had been presented and settled under these laws and that bonds had been issued in payment of all claims found to be valid. These bonds had been offered in the market as negotiable securities, " sometimes, at not a very low price." The Mexican Congress had, in recent years, appropriated a sum of money for their partial amortization. The Mexican Commissioner insisted that claimants who had not resorted to this procedure to obtain a settlement of their claims could not assert before the Claims Commission that the Mexican government had not granted justice to them. However, both Umpire Lieber and Umpire Thornton held that claimants in this class could come before the Claims Commission, without regard to whether or not they had sought redress under the system of liquidation adopted by the Mexican government. In the case of Robert Wulfing v. Mexico, Docket No. 345, the Commission allowed an award for a forced loan and other losses, without going into the question of the exhaustion of local remedies. In this case the Mexican government had moved to dismiss the

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D E N I A L OF J U S T I C E

claim on the ground, among others, that no complaint had been made by the claimant to the Mexican government and that this was a necessary preliminary step to the presentation of the claim to the Commission. In the case of Vicente Costanza v. Mexico, Docket No. 3 5 1 , Thornton allowed part of a claim arising out of the taking of property by federal troops, without regard to the question of exhaustion of local remedies. Another part of the claim was disallowed for lack of proof, and the fact that the claimant had made no complaint to the superior Mexican authorities was noted merely as throwing doubt upon the claimant's assertions. The Mexican Commissioner took the ground that the claimant should have sought his remedy under the procedure established by the law of November 19, 1867, for the adjustment of claims arising out of military exactions or requisitions, but the Umpire took no notice of this argument in this case, although he had previously given it great weight in dismissing the claims arising out of forced loans as described in Chapter V. In the case of John McMerty v. Mexico, Docket No. 409, Umpire Thornton allowed an award for damages arising out of the seizure and use of a wagon train by Mexican troops. The failure of the claimant to make any representation to the Mexican government in regard to his losses was taken into consideration only in connection with the matter of proof of the extent of his losses. The claim of J . S. Manassee & Co. v. Mexico, Docket No. 432, arose out of the sale of supplies and munitions of war to a general of the Mexican Army. Umpire Lieber held that an award should be made to the claimants for the unpaid portion of the amount originally due for the material. The Mexican Commissioner insisted that the claimants should have sought an adjustment of their claim through the procedure provided by the law of November 19, 1867, but Umpire Lieber stated that the answer to this argument was that the claimants had not done so " and their not doing so does not necessarily deprive them of the right to appear before an international Commission and have their claim adjudicated." Umpire Lieber gave no further reason in support of this finding.

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215

In the case of Benjamin Elliott v. Mexico, Docket No. 460, Umpire Lieber allowed an award for the taking and destruction of claimant's property by Mexican troops and the arrest and imprisonment of the claimant for two hours. The question of exhaustion of local remedies was not discussed by the Umpire in this case. In the case of Rudolph Brach v. Mexico, Docket No. 462, Umpire Thornton made an award for losses sustained through the sequestration of a debt owed by a Mexican firm to the claimants. This debt had been seized by the Governor of the state of Tamaulipas on the ground that it was due to a commercial house situated in territory then occupied by the enemy. The claimants had brought suit against the debtor in the local courts, but, pending the decision of the case, the state legislature had passed an act ratifying the sequestration made by the Governor and ordering all suits for moneys seized by him to be dismissed. The Mexican Commissioner asserted that these judicial proceedings were " perfectly in order " and that the claimants had no reason to complain of them. He also asserted that the claimants possessed an adequate remedy in the courts which they had not exhausted. Umpire Thornton took no note of this argument in his decision. In the claim of Cyrus W. Lander and Melvin B. Lander v. Mexico, Docket No. 603, Umpire Thornton made an award for damages resulting from the arrest and detention of one of the claimants by Mexican soldiers under the command of an officer. He stated that " if there was any reason for the arrest and imprisonment, and for the imposition of a fine, it should have been shown by the defence; but no excuse whatever has been given for these acts." It is implied in this decision that the burden of proof was on the Mexican government to show that the arrest was justified, even though the claimant took no steps to exhaust his local remedies against the officials who had made the arrest. Similarly, in the case of Alfred F. Marshall v. Mexico, Docket No. 650, Umpire Thornton made an award for damages resulting from the arrest and detention of the claimant by Mexican troops, without giving any consideration to the question whether the claimant had exhausted his local remedies or not.

D E N I A L OF J U S T I C E

2l6

Likewise, in the case of Amos O. Strickland v. Mexico, Docket No. 669, Thornton made an award for cattle taken by Mexican soldiers; although the Mexican Commissioner had insisted that the claim should be dismissed for lack of proof and because no complaint had been made to the superior authorities, who were very accessible to the claimant at the time of the alleged seizure. In the case of D. D. Brainard & Co. v. Mexico, Docket No. 672, Commissioner Wadsworth, speaking for the Commission, made an award for forced loans exacted of the claimants, although the Mcxican Agent argued that, sincc the claimants had not presented their claim before the proper liquidating board, there had been no denial of redress. In the well-known case of the heirs of Cyrus W. Donoughho v. Mexico, Docket No. 703, Umpire Thornton made an award for the death of an American citizen at the hands of a Mexican mob alleged to have been headed by an alcalde. It appears that the alcalde had come to the house of an American citizen with a posse for the purpose of removing a Mexican woman who had taken refuge there from her husband, that the Americans had declined to turn the woman over to the alcalde, and that in the ensuing struggle Donoughho had been killed. While the primary question involved in this case was the responsibility of Mexico for failure of police protection,r' one of the defenses raised by the Mexican government was that the claimants should have sought redress by a civil suit against the alcalde in the local courts. Thornton held, however, that, considering the way in which the other Americans had been treated during the trial which subsequently took place and the partiality shown toward the Mexican officials involved, " it cannot be supposed that the claimants in the above mentioned claim would have been able to obtain justice in any action for damages which they might have instituted " against the alcalde. In two other claims growing out of the same occurrence (Alexander H. Dixon v. Mexico, Docket No. 730, and George Buxton v. Mexico, Docket No. 731), Umpire Thornton granted awards in favor of the claimants for injuries sustained during the same disturbance. In the first of these claims, Umpire Thornton stated 5

This subject is discussed in the next chapter.

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that, while under some circumstances he would have held that the claimant should have brought an action to recover damages from the alcalde, considering the " evident injustice " which had been shown to the American prisoners and the partiality toward the Mexican authorities, it was " impossible to suppose that the claimant would have met with justice " in an attempt to recover damages from the alcalde. In the claim of A. J. Howard v. Mexico, Docket No. 919, the Umpire granted an award for property taken and destroyed by one Colonel Mendez during the intervention in 1863. This award was made even though the claim was obviously exaggerated and the Umpire did not doubt but that, " had this claimant asked the Government of Mexico for the reparation of the losses sustained by him, he would have obtained it, as many others who suffered in consequence of the late war of that country." It might readily be concluded from the above cases that the Claims Commission of 1868 did not approve of the doctrine of the supremacy of the national administration of justice in all matters falling within its scope. These cases are against the contention frequently advanced by the Mexican government that international responsibility can only arise out of a denial of justice in re minime dubia and that such denial of justice cannot be alleged until all local remedies have been exhausted. T h e number of these cases is much greater than is usually thought necessary to establish a negative proposition at law by reference to past practice, and would ordinarily be considered more than enough to show that, at least in the opinion of the 1868 Commission, the rule of local redress contended for by the Mexican government was not in fact a rule of international law. Y e t in a large number of other cases, the Commission of 1868 rendered opinions directly supporting the contentions of the Mexican government on the subject. Among the first decisions rendered by the Commission was one which fully upheld the rule of local redress. This decision was in a Mexican claim against the United States (The People of Cinecue v. the United States, Mexican Docket No. 120), and Commissioner Wadsworth concurred with his Mexican colleague in dismissing it. T h e claim arose out of an act of the state legis-

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D E N I A L OF J U S T I C E

lature of Texas, in 1854, incorporating a part of the Mexican town of Cinecue (which had become separated from the remainder by a change in the course of the Rio Grande) into the town of L a Plata, Texas. The inhabitants complained that their vested rights had been adversely affected by this act, but Commissioner Palacio held that the case was not a proper international claim, since there were local judicial remedies which could be pursued, and, if the decision of the lower courts was unsatisfactory, an appeal was open to the Supreme Court of the United States. In the case of Snow and Burgess v. Mexico, Docket No. 102, Umpire Thornton disallowed a claim arising out of the alleged unlawful condemnation of a vessel by a Mexican court, on the ground that the claimants had failed to exhaust their local remedies. In doing so, Thornton stated that " whether the proceedings were in due form, or the sentence in accordance with law and equity, or not, it was the sentence of a competent tribunal, and from it the claimants had the right of appeal." He added that they might easily have availed themselves of that right, but there was no evidence that they had taken any steps whatever in that direction. Similarly, in the case of Samuel Montgomery and William Wilkinson v. Mexico, Docket No. 105, Umpire Thornton dismissed a claim arising out of the alleged unlawful seizure by Mexican customs officials of a quantity of goods belonging to the claimants, because they had taken no steps to obtain redress from the local authorities. He considered it quite unjustifiable that the claimant's agent " should not even have taken the trouble to enquire on what grounds the seizure was made, or for what cause the goods were subsequently confiscated," and added that there seemed to have been great negligence on the part of the claimants in not appealing to the superior authorities. Frequently, in cases where evidence of wrongdoing was not very convincing, the Commission resorted to the rule of local redress as a means of disposing of the claims. This was apparently so in the claim of William Blumhardt v. Mexico, Docket No. 1 3 5 . Blumhardt had been arrested and imprisoned on a charge of resisting officers of the law who had come to arrest one of his asso-

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JUSTICE

219

ciates. H e had been detained only a short time in prison and had been subsequently acquitted of the charges against him. T h e evidence in the case indicated that he had probably given some cause for his arrest by offering resistance to Mexican police officials, and in any case it was clear that his associate had treated the local judicial authorities with considerable disrespect. T h e amount of the claim also appeared to have been greatly exaggerated. On this state of facts Umpire Thornton expressed himself as follows: If the claimant felt himself a g g r i e v e d and considered the c o n d u c t of J u d g e A l v a r e z to h a v e been u n j u s t or illegal, it w a s his d u t y t o h a v e recourse t o the remedies w h i c h were open to him b y the l a w s of M e x i c o .

F o r at that t i m e

he would easily have been able to produce the e v i d e n c e of the w a n t of w h i c h in support of his case he n o w complains.

I t m u s t also b e r e m e m b e r e d t h a t

if the complainant, w h o e v i d e n t l y a l w a y s had the intention of availing h i m self of the first o p p o r t u n i t y to p u t f o r w a r d a claim, now finds it difficult t o collect the necessary evidence, it m u s t be m u c h more so f o r the d e f e n d a n t , w h o when once the right of appeal to a higher court w a s abandoned, w a s entitled t o consider the question as finally settled. T h e U m p i r e is of opinion that the M e x i c a n G o v e r n m e n t cannot be held responsible f o r the losses occasioned b y the illegal acts of an inferior judicial authority, w h e n the complainant has t a k e n no steps b y judicial m e a n s to h a v e punishment inflicted upon the offender, and t o obtain d a m a g e s f r o m him. T h e Umpire does not believe that the G o v e r n m e n t of the U n i t e d S t a t e s or of any nation in the world w o u l d admit such a responsibility under the

cir-

cumstances w h i c h appear f r o m the e v i d e n c e produced on the part e v e n of the claimant, showing that J u d g e A l v a r e z w a s the person t o blame in the m a t t e r and that it was against him that proceedings should h a v e been taken.

For similar reasons, Umpire Thornton dismissed the claim of Charles B . Smith v. Mexico, Docket N o . 139, which was based on the imprisonment of the claimant for four hours for having written an insulting letter to a Mexican judge. Umpire Thornton held that if the judge had acted illegally in the matter, the claimant should have endeavored to obtain redress from a higher Mexican court, and that the Mexican government could not be held responsible " for the illegal acts of inferior judicial authorities when no appeal has been made to a higher court." In another case arising out of a condemnation of an American vessel by a Mexican inferior court (Schooner " Ada " v. Mexico, Docket No. 188), Thornton expressed the belief that, while the

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DENIAL OF JUSTICE

action of the local judge in the case might not have been in accordance with the law, there had been no such clear denial of justice as to call for the exercise of the jurisdiction of the Commission. He added that the Commission should not take cognizance of the claim because the claimants had not availed themselves of the legal remedies which were at their command. There was no doubt that they could have appealed from the sentence of the lower court, and, if they considered themselves aggrieved by that sentence, they ought to have done so. The claimants were regularly established as a commercial house in Mexico and should have been conversant with the local laws and judicial proceedings. " It would be preposterous to expect," said Thornton, " that on every occasion when foreigners consider themselves aggrieved by the sentences of inferior courts of Justice, their respective governments should intervene, . . . should insist upon a reversal of the sentences of those courts, and should pretend to make the government of the country responsible for all the damages which may be alleged to have accrued." Thornton obviously felt that in this case the question involved in the suit before the Mexican court had been a complicated one and that the claimants could easily have obtained a hearing before a higher court if they had wanted one. In the case of James Selkirk v. Mexico, Docket No. 362, Umpire Lieber disallowed a claim arising out of the seizure and condemnation of a vessel, chiefly on the ground that the claimant had not taken any rational steps in the matter and could have easily avoided the losses complained of if he had pursued the proper course of action before the local authorities. Selkirk had been deceived by someone into thinking that a receipt for tonnage dues was a permit to enter a Mexican port then closed to foreign vessels. When he entered this port, his vessel was seized. Under the Mexican law, the vessel was subject to condemnation, but the Mexican court, in view of the extenuating circumstances, only levied a fine of $200 and costs on Selkirk and informed him that the execution of the sentence would be suspended during the period allowed for the taking of an appeal. Selkirk took no appeal nor did he pay the fine, and subsequently the vessel was lost

DENIAL OF

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during a storm while in the custody of the M e x i c a n officials. S e l k i r k returned to the United States and laid his case before the D e p a r t m e n t of State, but no action was taken upon it.

H e took

no further steps in the matter until the establishment of C l a i m s Commission nearly twenty years later.

the

U m p i r e Lieber

felt that the loss sustained b y the claimant had been due to his own l a x i t y rather than to any unfairness on the part of the M e x i can customs officials, and accordingly dismissed the claim. T h e case of Jennings Laughland & C o . v. M e x i c o , D o c k e t N o . 374, arose out of private litigation in M e x i c o , in which it was charged that the judge of the inferior court had acted unjustly and had failed to account for the proceeds of the sale of certain property under judicial order.

In this case, Umpire T h o r n t o n

declined to pass upon the question whether the action of the M e x i can judge had been just or unjust.

H e stated that if the claimants

considered the sentence unjust, " they failed in their duty in not appealing to a higher court against the conduct of an inferior judge with a view to his punishment and to the recovery of damages."

T h e y had t a k e n no steps to avail themselves of remedies

open to them, and for this reason T h o r n t o n concluded that M e x i c o could not be held responsible for the misconduct of the inferior judicial officer.

In this decision T h o r n t o n again indicated that

he had little s y m p a t h y with foreign commercial houses permanently established in M e x i c o which complained of the decisions of lower courts without going through the usual steps of appeal to higher courts. T h e claim of H a y w a r d and M c G r o t y v. M e x i c o , D o c k e t N o . 414, arose out of the seizure of certain cotton belonging to the claimants, which was at the time in the possession of a merchant in Mexico.

T h i s merchant had been arrested and his property

attached on certain charges filed against him b y the M e x i c a n government.

H a y w a r d and M c G r o t y had taken no steps what-

ever to inform the M e x i c a n judicial officials that the property attached really belonged to them.

Umpire Thornton held that

the seizure of the property was lawful, since it was prima facie the property of the person against whom charges had been brought, and that the failure of the claimants to take any steps to establish

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DENIAL OF J U S T I C E

their ownership precluded them from bringing any claim against the Mexican government. The claim of The Tehuantepec Ship Canal and Mexican and Pacific Rail Road Co. v. Mexico, Docket No. 491, for $546,315,038.66, arising out of the alleged failure of the Mexican government to comply with the terms of a concession, was dismissed by Commissioner Wadsworth on the ground that the claimants had agreed in the contract to adjust all questions arising thereunder by private arbitration, and could not bring an international claim until recourse had been had to this method of settlement. Wadsworth referred to the claim as " appalling." The case of Richard King and Mifflin Kennedy v. Mexico, Docket No. 555, arising out of the alleged stealing of cattle along the Texas border, was dismissed by Umpire Thornton because of lack of evidence. The fact that the claimants had never made any complaint to the Mexican government of the conduct of the subordinate Mexican authorities who were involved in the case was noted by Umpire Thornton as throwing doubt on the allegations of the claimants. In the case of Edward Wright v. Mexico, Docket No. 573, the claimant complained of the actions of a lower Mexican court in enforcing a decision against him of private arbitrators in a dispute which he had agreed to submit to arbitration. The claimant had refused to accede to the decision of the arbitrators and had resisted the action of the court in enforcing the judgment. As a result of this action, he had been imprisoned for a few hours for contempt of court. Commissioner Wadsworth, speaking for the Commission, found that the judicial proceedings against the claimant had been wholly regular, and that even if they had not been, the claimant should have availed himself of his local remedies. In order to render the claim admissible before the Commission, the claimant " ought to have shown us that he experienced a denial of justice." Wadsworth found that he had " absolutely shown nothing of the sort," and held that the claim was " condemned by its own showing, as well as its scandalous exaggeration."

D E N I A L OF J U S T I C E

223

The case of Sanforth Kidder v. Mexico, Docket No. 575, was based on an award of $16,000 by a municipal Board of Liquidation for the burning of a house during the hostilities at Matamoros. Umpire Thornton dismissed the claim on the ground of complete lack of proof of the facts of the alleged loss, and also of lack of proof that application had ever been made to the state or federal authorities for the payment of the award. The claim of Salome and John McAllen v. Mexico, Docket No. 591, for damages alleged to have been caused by the troops of General Carbajal during the siege of Matamoros in 1 8 6 1 , was dismissed by Umpire Thornton on the ground of insufficient evidence. Thornton added that it was " also very remarkable that although a Commission was subsequently appointed to assess the damages which had been suffered during the siege, Mrs. McAllen is not shown to have presented any claim to that Commission either on her own account or that of her son, although, as she had Mexican friends and relations, it would have been very easy for her to have done so." Similarly, in the case of David O. Shattuck and Dickson P. Shattuck v. Mexico, Docket No. 600, Thornton dismissed the claim on the ground of insufficient evidence, and took note of the failure of the claimants to demand payment from the Mexican government for their losses as throwing doubt on the validity of the claim. The claim of Margaret Briggs v. Mexico, Docket No. 677, was based on the arrest and detention of claimant's husband by Mexican authorities on certain charges filed by the passengers of a vessel of which the claimant's husband had been captain. After a detention of sixty-three days, the prisoner had been released on bail and allowed to leave the country without further proceedings being taken against him. Umpire Thornton dismissed the claim because the evidence had not shown that " there was such a denial of justice as would justify him in awarding that the Mexican Government should be held responsible for the acts of an inferior Court." He added that if the proceeding had been so irregular as the claimant wished to make it appear, there was no doubt that

224

D E N I A L OF J U S T I C E

Briggs might have appealed to a higher court. It is obvious from Thornton's opinion that he had a very poor opinion of Briggs and also doubted that the claimant was really Briggs' wife. The claim of William L . Thompson v. Mexico, Docket No. 765, was based on a debt due to the claimant by one of the municipalities of Mexico for goods sold to the municipality. I t appeared that portions of the debt had already been paid and that the municipality was willing to recognize and pay the balance due. Under these circumstances Commissioner Wadsworth held that the claim was not a just one against the government of Mexico, that government not being obligated to pay the debts owed by either its cities, villages, or people. The Mexican Commissioner, Zamacona, held that if the municipality should fail to pay, " and if after being sued, the courts should deny the claimant justice, then upon the proof of this, a diplomatic claim might be brought." Until then, however, the claim should be considered as " irrelevant and groundless." The claim of R. W. Black and N. L . Stratton v. Mexico, Docket No. 770, arose out of the seizure of live stock by the Mexican customs officials for violation of the Mexican customs regulations. It appears that at the time of the seizure an extensive traffic in contraband horses and cattle was being carried on across the frontier, and the Mexican officials were endeavoring to suppress this traffic. The claimant asserted that he had obtained the necessary customhouse documents legalizing the removal of the live stock but that these documents had been lost. Umpire Thornton dismissed the claim, holding that " the presumption must be that the Authorities acted in accordance with law in confiscating and selling the animals in question, unless there be very strong proof to the contrary; but there is no such proof." The inference was, said Thornton, that not only had the confiscation been legal, but that the claimants had acquiesced in its legality, " for if not, it is incredible that upon such a flagrant violation of law as the claimant wishes us to believe that it was, neither Mr. Black nor his partner should have appealed to the courts of Justice, nor have made any representation to the nearest United States Consul, to the United States Minister at Mexico, to the Mexican or their

D E N I A L OF own Government."

225

JUSTICE

H e felt that he would not be justified in con-

demning the Mexican government to the payment of compensation " upon such weak evidence as to the illegality of the acts of its authorities, and after more than sixteen years had elapsed without the claimants having made any complaint whatever of the conduct of those authorities."

It is obvious from Thornton's opinion

that he had little faith in the statements of the claimants. Similarly, in the case of Alfred A . Green v. Mexico, Docket N o . 776, based in part on an alleged unlawful imprisonment, U m pire Thornton held that " the first inference must always be that the sentence of a judge or court must be a just one."

He added

that " the strongest proof must be produced to justify a contrary belief."

If the claimant had been illegally imprisoned, " it was

certainly in his power to appeal to a higher court " and to sue the judge of the lower court for false imprisonment.

Umpire Thorn-

ton's decision in this case may possibly have been influenced b y the fact that the remaining portions of the claim were for services rendered to the Mexican government which, in his opinion, " were certainly not in accordance with the neutrality which should have been observed by a citizen of the United States with reference to the hostilities which existed in Mexico." T h e claim of William L . Zuber and Edmund Hodapp v. M e x ico, Docket N o . 778, arose out of the alleged theft by Mexican troops of photographic materials being transported by the claimants.

Umpire Thornton observed that " the natural course for

persons who found themselves in this position would have been to have endeavored to find out what became of the twenty valuable cases which they allege were carried off, and to have appealed to the Authorities for assistance."

It did not appear, however,

that the claimants had made any application to the authorities, nor any representation on the subject to the nearest American Consul or to the American government.

Thornton held that it

was not sufficiently proved that the persons who had carried off the cases had really been Mexican soldiers or that they had acted in the presence or under the orders of a Mexican officer. cordingly held that the claim should be dismissed.

H e ac-

A s in so many

other cases, the failure to exhaust remedies in this case was looked

226

D E N I A L OF J U S T I C E

upon merely as evidence unfavorable to the claimants' statements of fact. The claim of Caroline B. Slocum v. Mexico, Docket No. 798, was based on the arrest of the claimant following her refusal to pay a tax of $ 1 1 levied on her by the Mexican authorities. When revenue officers had been sent to collect the tax, she had resisted them forcibly. Thornton held that " to make the Mexican Government responsible for the action of the Authorities, it must be most clearly proved that there was a denial of justice, which it does not appear to the Umpire that there was in this case." He held that the claimant had certainly not been justified in refusing to pay the tax, even though it might have been unjust. She had the power, if she deemed it expedient, to protest against the payment and to appeal to the proper authorities for a refund. As for her imprisonment by the Prefect, she likewise had it in her power to appeal to a higher court and to hold the Prefect to account for her arrest if it had been illegal. Thornton accordingly ruled that the Mexican government could not be held responsible " for such acts of inferior Authorities." In the case of Edward Carey v. Mexico, Docket No. 924, Thornton dismissed a claim for the seizure of property by officers of the Liberal army in 1867, for the reason, among others, that the claimant lived in Mexico City and could easily have applied to the Mexican government for redress. There was clear evidence of fraud on the part of the claimant in this case, and it never should have gone to the Umpire for decision since both of the national Commissioners had disallowed it. The claim of John D. Cramer v. Mexico, Docket No. 950, was for $250,000 damages for his arrest and detention for thirtyfive days by Mexican military authorities during the French intervention on charges of implication in an attempted revolution against the government. At the time the arrest had been made, the civil guarantees of the Constitution had been suspended, and a simple order by a military or civil authority was adequate warrant for arrest. Umpire Thornton held that there had been sufficient ground for suspicion against the claimant to justify the authorities in detaining him, and that the period of thirty-five days

D E N I A L OF J U S T I C E

227

was not an unreasonable time for making the necessary inquiries. Furthermore, the claimant had not availed himself of his right to bring an action for damages against the judge who had detained him, nor even to report the case to the Mexican government. Thornton accordingly held that the claim should be dismissed for lack of proof of any injury at the hands of the Mexican authorities. In the case of Charles D. Gibbs, Executor of Henry Ballenger, v. Mexico, Docket No. 1 3 4 , the question of exhaustion of local remedies was not directly discussed by the Commission, but was subjected to unusually frank and outspoken treatment in the brief of the Mexican government. In this brief the Mexican Agent bitterly complained against the practice of presenting claims arising out of decisions of local Mexican courts which had not been appealed to the higher courts. He pointed out that, in the case of the People of Cinecue v. the United States, the American government had insisted that, until the claimants had exhausted their remedies in the courts of law, Mexico had no right to complain that the United States had refused justice, and this view had been upheld by the Commission in that case. Nevertheless, said the Mexican Agent, in more than one hundred cases of claims against Mexico presented by the United States, " this perfectly well understood and universally received doctrine of the law of nations is forgotten, lost sight of, or deliberately disregarded by the government of the United States." I f undisturbed by the intolerable pretensions of privilege, which, in abuse of treaties, you set up f o r your citizens residing or sojourning in the Mexican Republic, we should gladly welcome them, with their enterprise and their capital, among us; but your shortsighted policy, in promoting the groundless and shameless reclamations of your citizens, has the necessary effect of rendering every American in the Mexican Republic an object of distrust, aversion, and fear to individual Mexicans, and of jealousy and suspicion to the Mexican Government.

The Mexican Agent referred to the fact that a former American Minister in Mexico had " distinguished himself by the precipitancy and bad temper with which he took up the unjust complaint of every American or pretended American; interfering, without reason or common sense, with the action of our courts and our

228

DENIAL OF JUSTICE

revenue officers," and stated that, in consequence of this and similar incidents, " the name of American in the Mexican Republic has now come to represent a jobber in exorbitant reclamations, and a getter-up of false claims and fictitious grievances under the diplomatic auspices, and with the implied approval of the American government." T h e Mexican brief concluded with the following statement: H o w e v e r unequal the two Republics m a y be in w e a l t h , in population, a n d in material power, t h e y are co-equal in their t r e a t y relations; they are coequal in the e y e of the law of nations; t h e y are co-equal in the rights and duties of their respective citizens residing or s o j o u r n i n g in the other; and t h e y are co-equal b e f o r e this Commission. I t m a y happen to the M e x i c a n Republic, — w h i c h G o d forbid, — that she should become i n v o l v e d in w a r with the United S t a t e s as the sequel of the u n j u s t pretensions of the G o v e r n m e n t of the United S t a t e s in the m a t t e r of some of the reclamations b e f o r e this Commission.

B u t such a catastrophe,

calamitous as it would be to the M e x i c a n R e p u b l i c , w o u l d be more endurable to her, than acceptance of the dishonorable international condition, in w h i c h she would stand, by voluntarily submitting to the premises of public

law

assumed in these cases b y the United States

T h e opinion of the Commission in this case was rendered by the Mexican Commissioner, Palacio, who dismissed the claim on the ground that the action of the Mexican judicial authorities complained against had been in full accord with the local laws. T h e question of the exhaustion of local remedies was not directly discussed in the opinion. In the light of the above decisions it would be difficult to maintain that the Commission of 1868, in dealing with cases involving the allied questions of denial of justice and exhaustion of local remedies, consistently applied established principles of law and nothing else in reaching their decisions. One might more plausibly argue that, while the Commission recognized in theory the existence of the principles contended for by the Mexican government, it applied them only when they led to conclusions which the Commission, for some other reason, desired to reach.

D E N I A L OF JUSTICE SUBSEQUENT

DIPLOMATIC

229

DISCUSSIONS

During Foster's term of office at Mexico City, the question of exhaustion of local remedies came up most frequently in connection with seizures of American vessels and cargoes by Mexican customs officials on the ground of alleged infractions of the local customs laws. The large increase in the number of customs cases at this time was due partly to an increased hostility toward Americans generally in Mexico as a result of President Hayes' Mexican policy, and partly to an unusually widespread state of corruption in the Mexican customs service.8 At any rate, Foster appears to have received more complaints based on the action of customs authorities in this period than on any other subject. A typical case of this sort was that which arose out of the seizure of the Schooner " Montana." This vessel had left the United States in 1877 with a shipment of goods for Guatemala and also one for the Mexican port of Mazatlan. While discharging at the port of Mazatlan the shipment destined for that place, the vessel and cargo had been seized by the customs officials on the charge that the vessel was engaged in the coastwise trade, which was forbidden to any but Mexican vessels. The customs officials based this action on a literal interpretation of a circular issued by the Treasury Department of the federal government. That Department, however, repudiated this interpretation and ordered the release of the vessel and cargo. In the meantime, the Collector of Customs had commenced proceedings in the federal District Court for the condemnation of the vessel and cargo. The court decided that the seizure was unwarranted by law and decreed the release of the vessel and cargo, but held at the same time that the Collector was not liable in damages for the seizure, inasmuch as he had ostensibly acted under the directions of a Treasury circular, although his interpretation of that circular had 6 In September, 1879, Foster reported to Evarts that " the exorbitant tariff, the revolutionary condition of the country for two generations, and the want of responsibility of the officials to the central government have created a chronic state of corruption in the customs houses which is notorious and is not seriously denied by the authorities." Foster to Evarts, No. 1038, September 22, 1879, M S . Desp. Mex., Vol. 69.

DENIAL OF JUSTICE

230

been wrong. T h e owners of the vessel and cargo sought the assistance of the United States government to obtain redress for the losses resulting from the seizure, and Foster was instructed by Evarts to present the case to the Mexican government. Foster did so in March, 1877, and at frequent intervals in the next two years, but without result. T h e Mexican government invariably advanced the defense that the judgment of the local court on the matter was final and could not be changed by the executive branch of the government. Foster sought to meet this argument by pointing out that the case arose out of the enforcement of the tariff laws, which was a function specially within the control of the executive. Secretary Evarts took the position that the case amounted to a denial of justice and that the action of the Mexican government was not only in contravention of the spirit of the Treaty of 1831 but was also in conflict with " the recognized rules and principles of public maritime law." He instructed Foster to press the claim with his accustomed energy and prudence, and to state to the Mexican government that the United States " must look alone to the supreme authorities of Mexico for indemnity for the losses to American citizens resulting from the misconduct of subordinate Mexican officers." 7 Foster presented these arguments as instructed, but at the same time expressed the view to Evarts that the Mexican Foreign Minister would not consent to any satisfactory settlement " until in some way we give him to understand that it must be done, — then a settlement will come." 8 On being informed by Foster that his representation in this and other similar cases had brought no response from the Mexican government, Evarts took a more determined tone in his instructions. H e stated that the improvement in the conditions along the border and the apparently increased disposition to cultivate mutual good understanding and to develop international trade had led to the belief that all points of difference between the two governments might soon be disposed of, but the inaction of the Mexican government in these cases tended to dissipate the 7 8

Evarts to Foster, No. 576, January 24, 1879, MS. Inst. Mex., Vol. 19. Foster to Evarts, Confidential, February 15, 1879, M S . Desp. Mex., Vol. 66.

D E N I A L OF hope entertained.

JUSTICE

231

Assuredly the citizens of the United States

would hesitate, he said, to embark on commercial enterprises in any region where life and property were insecure. T h e y must naturally look to their own government to lend them such protection as m a y be within its power and to the Mexican government for such cooperation in that protection as is customary among friendly nations. Above and beyond the mere question of the development of international trade, however, is the paramount obligation of every government to protect the lives and property of its people. This duty the government of the United States cannot neglect or relinquish and so long as diplomatic channels are open f o r the interchange of views, it must insist on their use for the accomplishment of definite results. 9

Foster presented Evarts' instructions to the Mexican Minister of Foreign Affairs, but the latter's answer was " a complete and positive rejection " of the claim and a denial of all responsibility on the part of the Mexican government. A t the same time, Foster learned that, in another case arising out of almost identical facts, an arrangement had been made by the Mexican government with a German firm, whereby the latter agreed to pay the claim in its full amount of $ 3 2 , 0 0 0 and to loan to the government the sum of $40,000, receiving in return orders on the customhouse at Mazatlan for $72,000.

Foster took this

matter up with the Mexican government and argued that the " Montana " claim was the stronger of the two cases and was equally entitled to a settlement, but the Mexican Foreign Minister refused to admit any liability in the " Montana " claim. 10

He

defended the settlement in the other case by saying that, where claimants approached the government through private or unofficial channels, the latter was able to consider the cases with much more freedom of action, and the question of " convenience " often facilitated their adjustment.

In other words, while the Mexican

government could not afford to admit officially its liability in this class of cases, it was not indisposed to settle them privately if a convenient means of settlement were afforded. 11 9

Evarts to Foster, No. 621, April 16, 1879, MS. Inst. Mex., Vol. 19. Foster to Evarts, No. 1 0 1 1 , August 9, 1879, MS. Desp. Mex., Vol. 68. 11 Foster to Evarts, Confidential, No. 1012, August 9, 1879, MS. Desp. Mex., Vol. 68. 10

D E N I A L OF J U S T I C E

232

Morgan, who succeeded Foster as Minister at Mexico City, encountered the same rigid attitude of the Mexican government on the subject of the supremacy of the local courts. A typical case during his term of office arose out of the seizure of the American schooner " E . D. Sidbury," for alleged violation of the customs laws. The owner had brought suit in the local courts and obtained a verdict that the seizure was illegal and that the vessel should be returned. There had been some delay by the customs authorities, however, in carrying out this verdict, and the owner had thereupon filed a claim with the American Legation for damages resulting from the illegal detention of the vessel from the time of its original seizure. One of the grounds advanced by the Mexican Foreign Office in rejecting the claim was that, since the owner of the vessel had elected to pursue his remedies in the local courts, he could not complain of the delays incident to that mode of procedure. The Mexican Foreign Office also asserted that the local courts were open to the claimant if he felt that he had any complaint against the customs officials. In reply, Morgan took the position that since a Mexican court had held the seizure illegal, the right of the claimant for damages became established without the necessity of further judicial action. The Mexican government declined, however, to alter its position on this case. 12 Another customs case presented by Morgan at this time brought on a lively exchange of views on the subject of diplomatic protection. In this case, Morgan requested the Mexican government to return certain fees which he asserted had been unlawfully exacted from the captain of an American vessel by Mexican customs officials. Mariscal flatly denied the right of diplomatic interposition in the case. He asserted that every complaint of illtreatment or illegal exactions received at the American Legation was presented without question to the Mexican government through diplomatic channels. He took the position that diplomatic interposition was permissible only when the injured foreigner had carried his case to the court of last resort and had there sustained a denial of justice. Morgan, in reply, refused to 12

Morgan to Frelinghuysen, No. 704, October 6, 1883, M S . Desp. Mex., Vol. 80.

D E N I A L OF J U S T I C E

233

accede to this doctrine, which he held was a new departure in the practice of the Mexican government. He stated that he would continue to present such cases diplomatically wherever necessary, until otherwise instructed by his own government. 13 Mariscal took the same position on the exhaustion of local remedies even in a case in which the three Claims Commissions of 1839, 1849, a Q d 1868 had held that Mexico was internationally liable in damages. Back in 1836, a building owned by Mr. John Belden, an American citizen, had been seized and occupied by the Mexican authorities as a military barracks and had been retained until 1878 without compensation to the owner. All three Claims Commissions had awarded generous sums to Mr. Belden for the use of the building, the last award covering the period up to 1868. T h e Mexican government continued in possession of the building for ten years thereafter, and Belden subsequently filed with the Department of State a claim for compensation during this last period at the rate established by the Claims Commissions. Secretary Frelinghuysen authorized Morgan to bring the case to the attention of the Mexican government, but Mariscal, in reply, insisted that Mr. Belden would have to proceed against the Mexican government before the local courts. 14 Frelinghuysen refused to accede to this position and instructed Morgan to bring the claim again to the attention of the Mexican government and to press it to a " satisfactory and speedy conclusion." 1 5 However, Señor Mariscal firmly maintained his position that diplomatic representation was not justified in the case until all other remedies had been exhausted. The Mexican government recognized, he said, that the claim of Mr. Belden was founded in justice, but the government was far from accepting either the amount claimed or " the diplomatic form to which the party in interest appeals for bringing it forward." Only in case of a complete denial of justice would the intervention of a diplomatic rep13 Morgan to Frelinghuysen, No. 520, October 17, 1882, MS. Desp. Méx., Vol. 78. 14 Frelinghuysen to Morgan, No. 306, August 8, 1882, MS. Inst. Méx., Vol. 20; and Morgan to Frelinghuysen, September 16, 1882, MS. Desp. Méx., Vol. 77. 16 Frelinghuysen to Morgan, No. 517, March 6, 1884; and Bayard to Morgan, No. 761, April 30,1885, MS. Inst. Méx., Vol. 21.

234

DENIAL OF JUSTICE

resentative of the United States be admissible in the case. Mariscal contended that this doctrine was not a new one; that it had been maintained for many years by the Mexican government; that it was found in the laws, treaties, and even in the constitutions of several of the Central and South American Republics; and that it was also a principle followed by the government of the United States. In support of this assertion he referred to a despatch addressed to an American claimant by the American Minister to the Republic of Colombia in 1883, stating in part as follows: F o r a g o v e r n m e n t to be justified in this intervention in the judicial proceedings of a n o t h e r G o v e r n m e n t , there should be a positive denial of justice or a c t s of n o t o r i o u s i n j u s t i c e and these acts should be established in such a manner as to l e a v e no doubt as to their e x i s t e n c e ; besides it should equally appear that the complainant

had exhausted

all the ordinary

means of

repa-

ration.

Mariscal maintained that, although the Commission of 1868 had established Mexico's liability to pay compensation to M r . Belden for the use of his premises, it was not proper for Mr. Belden to institute a claim through diplomatic channels covering the part of the occupation subsequent to the decision of the Commission, when he had not even addressed a demand for payment to the Mexican government nor asked for a proper liquidation thereof. 19 Secretary B a y a r d eventually referred the case to Dr. Francis Wharton (who was then acting as L a w Officer for the Department of State) for examination. D r . Wharton took the position that since the Mexican government had offered to hear and determine Mr. Belden's claim through its municipal tribunals, it was not advisable for the Department of State to interpose diplomatically unless it should appear that the remedy in the Mexican courts was inadequate or that there would be an unfair discrimination against M r . Belden as a citizen of the United States." Secretary Bayard accepted this opinion and stated to Mr. Belden's 1 6 Mariscal to Morgan, M a y 27, 1885, enclosure with Morgan to Bayard, No. 1037, June 1, 1885, M S . Desp. Mex., Vol. 85. Italics in the original. 1 7 Report No. 86 of Dr. Francis Wharton, June 12, 1885, MS. Desp. Mex., Vol. 83.

DENIAL OF JUSTICE

235

attorneys that the United States could not interpose further in his behalf, except under the conditions outlined by Dr. Wharton. 18 In another case in which Mariscal took the same position, Morgan inquired of him whether the Mexican government could be sued in its own courts. He replied that it could, but that the courts had no power to enforce their judgment against it. If such a judgment were rendered, it would be in the province of the Mexican Congress to provide for its satisfaction. 19 The controversy over the doctrine of local redress reached its height during the term of office of Morgan's successor, Jackson. The uncertain handling of this controversy by the Department of State under Secretary Bayard eventually led to Jackson's resignation as Minister. The diplomatic discussions on the issue centered on four specific cases, the schooner " Daylight," the schooner " Rebecca," the schooner " Mina Bell," and the case of John C. Joy. It will be instructive to examine these four cases in some detail before considering the general discussion of the issue.

The Schooner " Daylight

"

On March n , 1882, the American schooner " Daylight " was sunk while at anchor in the harbor of Tampico, as a result of having been struck by the Mexican gunboat " Independencia," which had apparently got out of control in a high wind. T h e captain and crew of the " Daylight " were rescued by another vessel, and, after filing a protest with the American Consul at Tampico, they returned to the United States. On February 15, 1883, Morgan, acting on instructions from Secretary Frelinghuysen, presented a claim to the Mexican government for the sum of $8,702.93 for the loss of the vessel. The basis of the claim was that the disaster had been the result of carelessness on the part 18

B a y a r d to Jackson, N o . 8, June 13, 1883, M S . Inst. M é x . , V o l . 21.

den's claim for $43,000 (including $10,000 punitive

damages)

was

M r . Bel-

subsequently

settled f o r $8,708.10; see Jackson to B a y a r d , N o . 80, O c t o b e r 14, 1885; and N o . 84, October 21, 1885, M S . Desp. M é x . , V o l . 86. 19

M o r g a n to Frelinghuysen, N o . 377, M a r c h 30, 1882, M S . D e s p . M é x . , V o l . 75.

D E N I A L OF J U S T I C E

236

of the commander of the Mexican gunboat that was " little short of culpable negligence." 20 In reply to this demand, Señor Mariscal stated that if the captain and the crew of the " D a y l i g h t " thought responsibility for the accident rested upon the Mexican government, they should apply directly to the Department of War and Marine, which had jurisdiction over the gunboat. If that Department admitted the responsibility of the government in the matter, all difficulties would at once disappear; but if the contrary were held, Y o u r E x c e l l e n c y k n o w s , and the p r a c t i c e is a general one, that in cases of m a r i t i m e disaster, g i v i n g rise to controversies b e t w e e n parties, it is f o r the tribunals of the c o u n t r y h a v i n g jurisdiction over the w a t e r s w h e r e the disaster occurred, to declare w h e t h e r the disaster occurred through neglect, or not, a n d upon w h o m the responsibility t h e r e f o r falls.

For this reason, interposition on behalf of the claimant through diplomatic channels could not at that time be justified in any manner, and therefore could not be accepted by the Mexican government. 21 In reply to this note, Secretary Frelinghuysen stated that he was at a loss to understand Mariscal's position that the claimant should apply directly to the Department of War and Marine for redress, since, " by the custom of nations, a complaint of an alien when not cognizable by the Courts of law can only be presented in the mode recognized by diplomatic usage, through the proper officer of his own Government, and he is not permitted to appeal directly to any of the political Departments of the Government against whom the complaint is made." Frelinghuysen thought that the propriety and reasons for this course were too apparent to require statement. He accordingly assumed that some peculiar feature in the administrative powers of the Mexican Department of War and Marine caused the suggestion of M r . Mariscal, " which, on its face, does not seem to be in harmony with diplomatic usage and precedents." As for Mariscal's statement that 20

M o r g a n to Mariscal, February 1 5 , 1883, enclosure with M o r g a n to Freling-

huysen, N o . 583, M a r c h 6, 1883, M S . Desp. Méx., Vol. 78. 21

Mariscal to M o r g a n , March 3, 1 8 8 3 , enclosure with M o r g a n to

huysen, N o . 5 8 3 , March 6, 1 8 8 3 , M S . Desp. Méx., Vol. 78.

Freling-

DENIAL

OF

JUSTICE

237

in the event of an adverse decision b y the Department of W a r and M a r i n e the claimant should seek redress in the

Mexican

courts, Secretary Frelinghuysen stated as follows: If Mr. Mariscal's second point is intended to intimate that an alien may proceed in the courts of Mexico against a national vessel in the usual form prescribed for suits against private vessels owned by individuals, not used for the national protection but in the peaceful operations of commerce, this Government might be disposed to concede that the owner of the " Daylight " must, in this, as in other cases of collision, first exhaust his judicial remedy, after which the case might, or might not, become a proper one for diplomatic representations. Mr. Mariscal, however, is not so explicit in his statement as to leave the subject entirely without doubt, and as such a power in an individual to proceed at law against a national vessel of war does not exist in this country, nor so far as is known, elsewhere, unless in Mexico, this Department would be glad to receive further information on the subject. 22 I n response to Frelinghuysen's questions, Señor

Fernandez

(acting in place of M a r i s c a l ) stated that Article 8 of the M e x i c a n Constitution gave to both citizens and foreigners the right of petition to the different executive departments of the government to seek justice, and hence the claimants in this case had access to the Department of W a r and Marine.

Furthermore, b y Article 9 7

of the Constitution, the federal tribunals had jurisdiction of controversies arising under maritime law, and of those to which the government was a party, and hence a double reason existed w h y the claimants in this case should resort to the local tribunals if the Department of W a r and M a r i n e refused them redress.

Fer-

nandez also recalled to M o r g a n ' s attention " the principle which has been invariably maintained b y this Department, that diplomatic intervention on behalf of foreigners except where there has been a denial of justice, is not admitted."

23

T h i s position w a s

again advanced at length b y Fernandez in a second note to M o r gan on M a r c h 2 3 , 1 8 8 4 . " A f t e r examination of the several propositions advanced b y 22

Frelinghuysen to Morgan, No. 382, March 24, 1883, MS. Inst. Méx., Vol. 20. Fernandez to Morgan, September 18, 1883, enclosure with Morgan to Frelinghuysen, No. 690, September 21, 1883, MS. Desp. Méx., Vol. 80. 24 Enclosure with Morgan to Frelinghuysen, No. 775, March 25, 1884, MS. Desp. Méx., Vol. 81. 23

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Fernandez in his two notes, Secretary Frelinghuysen wrote to Morgan that he found himself unable to agree with the conclusion that the doctrine embraced in these propositions could " with any legal propriety " be considered applicable to the case of the " Daylight." He asserted that the municipal laws of any country could " only be held applicable to and operative on the rights, property and persons of the citizens of the country and foreigners who may be either permanently or temporarily residing in the country," but the owners of the " D a y l i g h t " were never residents of Mexico, either permanent or temporary, nor was the master of the vessel. A t the time of the occurrence, which gave rise to the claim, the vessel could scarcely be said with strict propriety to have been in Mexican waters; she was anchored outside the bar near the harbor of Tampico, in an exceptionally rough sea at the close of a severe storm, which rendered it unsafe for her to attempt to cross the bar or enter the harbor. T o insist that those claimants shall go from Maine to Tampico to seek redress in the Mexican tribunals for a grievous wrong suffered at the hands of a high officer of the N a v y of that Republic and in such proceedings to be met by the evidence which the Commander of the Independencia would readily be able to elicit from the ships' crew, would in the estimation of this government, be a practical denial of justice. 3 5

In answer to this position, Mariscal (who had in the meantime returned to the Department of Foreign Affairs) asserted that the " Daylight " had in fact been anchored within Mexican territorial waters at the time of the accident, and hence, both under the principles of international law and Article i of the Treaty of 1854 between Mexico and the United States, the event had taken place with Mexican jurisdiction. As for the point made by Secretary Frelinghuysen that the owners of the vessel were not residing in Mexico, Mariscal replied that the incident had occurred within Mexican territory, and also that the government which was sought to be held responsible for the damages likewise existed in the same territory, and hence the demand for redress could be made before no other tribunals than those existing in that country. Mariscal further argued that, even supposing dip25

Frelinghuysen to Morgan, No. 570, May 17, 1884, MS. Inst. Méx., Vol. 21.

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lomatic interposition to be in order, sufficient grounds did not yet exist for an international claim in the case. For example, it had not yet been established by conclusive evidence that the gunboat had been the cause of the sinking of the schooner, nor had the amount of damages claimed by the owners been proved. This demonstrated " the propriety and necessity" that the claim should be heard first by the Department of War and Marine, and then, if satisfaction was not received, by the judicial tribunals of the country. Mariscal went on to state as follows: I t is not the first time that I have had occasion in my friendly discussions with Y o u r Excellency, to call your attention to the marked inclination of certain foreigners in countries like Mexico, to constitute their governments and ministers as their agents in every complaint and for every claim which they wish to make against the authorities of the nation, endeavoring always to begin their negotiations by a diplomatic reclamation which produces an international discussion. In many cases they do it to avoid the inevitable difficulties which the claims and complaints of foreigners present; f o r important as they m a y be, it is clear that foreigners have no right to cut off every defence to such reclamations, commencing where they should have ended, and this in the event of their being devoid of justice.

In conclusion, Mariscal assured Morgan that if the claimants would present themselves either in person or by attorney to the Department of War and Marine, the complaint would be attentively considered, and if the circumstances justified it, they would receive the reparation to which they were entitled.29 In reply to Mariscal's note, Secretary Bayard (who had in the meantime succeeded Frelinghuysen) stated that the issue in the case was " now narrowed to the question of whether a United States merchant vessel which is driven by a storm into Tampico Bay and is there run into by a Mexican war vessel, can appeal to this Government for diplomatic intervention or is limited, when seeking redress, to Mexican tribunals." It was not necessary to discuss, he said, " the question of whether there is such an equity of rights between aliens and subjects suing in Mexican tribunals, as to make torts on aliens on Mexican soil a matter of municipal 28 Mariscal to Morgan, May 30, 1885, enclosure with Morgan to Bayard, No. 1041, June 6, 1885, MS. Desp. Mex., Vol. 85.

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and not of international intervention," for, in any view, " the claimants in the present case did not voluntarily enter Mexican territory." T h e y were driven into the harbor of Tampico b y storms against their will and beyond their control. Under these circumstances, the claimants had the election of proceeding through the Department of State for redress for their injury. T h e y had so chosen to present their claim, and as it afforded grounds for diplomatic intervention, B a y a r d felt that it should be urged again on the Mexican government. H e concluded as follows: But it is of great moment to the sea-faring interests of the United States that when vessels belonging to the United States are driven by stress of weather to the Mexican coast, their owners should be entitled to appeal to their Government for that protection and that redress for injuries which belong to them by the rules of international law.

T h e right to approach a harbor, during

storms, is regarded as one of the most sacred rights which international law secures.

And, if this right, belonging to our citizens when at sea, is invaded

by attacks, negligent or wilful, from the cruisers of the asylum port acting under commission from the Government of such port, then it is the duty of the Government of the United States to call on the Government of the offending State for an explanation, and, if necessary, for reparation. 27

I t will be noted that in this instruction Secretary B a y a r d reaches out for a new principle on which to base the claim of the owners of the " Daylight," i.e., that owners of vessels driven into a foreign port by stress of weather are entitled to appeal to their own government for protection and redress for injuries received in such port. Jackson believed this statement of the case inaccurate, and he accordingly did not present Bayard's argument as instructed. He pointed out to Bayard that the original statement of facts was quite inconsistent with the position that the schooner " D a y l i g h t " had been driven into Tampico B a y by a storm. As a matter of fact, the vessel had sailed for that very port with a cargo of lumber, and had arrived there a full day prior to the accident. Jackson accordingly modified the argument of Secretary Bayard in presenting it to Mariscal. He sought to justify diplomatic interposition in the case on the ground 27

Bayard to Jackson, No. 15, July 2, 1885, MS. Inst. Mex., Vol. 21.

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that the wrong had been committed by the official agents of the government of Mexico, " and therefore, in the eye of the law, committed by itself." He asked whether any precedent could be found for referring such an issue to another branch of the same government for adjudication. Since the master of the vessel could apply directly to the Department of War and Marine, " is there any sound reason why he should not be permitted to do through his Government what it is thus conceded he might do by himself? " It could not be assumed that the government of the United States would be disposed to demand for one of its citizens more than the citizen would demand for himself. " Why depart from the diplomatic usages of the past by denying to a friendly Government such hearing in behalf of its citizens as would be accorded to the citizen himself? " He stated that his government would leave its citizens who resided or held property in Mexico to the administration of Mexican law by the Mexican courts (except in case of a denial of justice), but he argued that the claims of the " Daylight," having arisen out of an act of official agents of the Mexican government, was different in its origin from these other cases.28 No reply having been received from the Mexican government to this note, Secretary Bayard on November 17, 1885, instructed Jackson " to press courteously but decidedly " for an answer to his note of July 25, 1885, "which, in obedience to your instructions, you addressed to Mr. Mariscal." 20 Subsequent developments in this case will be treated below.

The Schooner " Rebecca " The schooner " Rebecca " entered the port of Tampico February 17, 1884, with a cargo of timber from Brashear, Louisiana. It also had on board twenty-nine packages of merchandise in transit for delivery at Brazos, Santiago, Texas, which it had been unable to deposit at that port owing to storms and rough weather. 28

Jackson to M a r i s c a l , J u l y 15, 1885, enclosure w i t h Jackson to B a y a r d , N o .

22, J u l y 15, 1885, M S . D e s p . M e x . , V o l . 86. 29

B a y a r d to J a c k s o n , N o . 91, N o v e m b e r 17, 1885, M S . Inst. M e x . , V o l . 21.

242

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These packages were not entered on the manifest for Tampico, but were noted on a so-called " master's manifest " which was presented to the customs officer examining the cargo at that port. This officer seized the twenty-nine packages on the ground of attempted smuggling and failure to enter the merchandise on the manifest for Tampico. He likewise caused the arrest of the captain. The matter was laid before the District Court at Tampico, and that court dismissed the charge of attempted smuggling but sentenced the captain to pay a fine of three times the amount of the duty on the merchandise as a penalty for entering the port without the proper papers. As the captain did not pay the fine and the value of the goods was not sufficient to cover it, the vessel was ordered to be sold at auction. Part of the proceeds of the sale was applied to the federal Treasury and the balance distributed among the customs employees who had participated in the seizure. 30 On this state of facts, the Department of State instructed Jackson to file a claim with the Mexican government for the value of the vessel and cargo. Acting Secretary Porter, in his instruction to Jackson, stated that " the only question of law arising in this case is whether a vessel driven by stress of weather into a foreign port is liable to penal process in such port either for ' smuggling' or for ' bringing goods into the port without proper papers.' " Porter contended that the vessel was not so liable. It had frequently been held by the United States government, he said, that unavoidable necessity was " a defence to any charge of invasion of Custom-house regulations." 3 1 In reply to the demands of the United States in this case, Mariscal stated that the ship had been confiscated in accordance with the local laws, and that, under the circumstances, no effective step could then be taken in order to satisfy the desires of the United States in the matter. As for the assertion that the vessel had been forced into Tampico by stress of weather, Mariscal 30 Report of the Mexican Treasury Department to the Department of Foreign Relations, May 6, 1884, enclosure with Romero to Frelinghuysen, June 5, 1884, Mexico, Notes, Vol. 33. 31 Porter to Jackson, No. 63, September 14, 1885, MS. Inst. Mex., Vol. 21.

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pointed out that it had in fact cleared for that very port. Since the executive was " unable to remedy or change the consequences of an affair which has been followed, resolved upon and consummated by the judiciary," Mariscal deemed it useless to forward to the court at Tampico the statement of the case submitted by Jackson. 32 On receipt of this reply of the Mexican government, Secretary Bayard instructed Jackson that " in view of what appears to be the final and positive refusal of the Mexican Government to give favorable consideration to the representations heretofore made in this case," it did not seem hopeful to press it further. At the same time, Bayard thought that the argument of the Mexican government was " undeniably weak in several important particulars." He called especial attention to the point made that the " Rebecca " could not be deemed to have entered Tampico in distress and said that '' it was never asserted that she did." 33 Stress of weather had been the cause of her failure to enter the port of Brazos, Texas, but not of her entry into the port of Tampico. He concluded that the controversy had resolved itself into a matter of " diplomatic management," and that there was little use in formally joining issue with the Mexican government after its position had been so distinctly announced. He thought, however, that at some future time the prospect might be more favorable.34 Following the receipt of this instruction, Jackson, in a long note to the Mexican government, sought to refute the arguments advanced by Mariscal, and concluded with the following statement: It is my duty to say to Y o u r Excellency that all the evidence and all the argument, which it is possible for my Government, so far, to accept, conduct to the suspicion (to say the least of it) that, in order to " hand to the corre82 Mariscal to Jackson, October 3 1 , 188s, enclosure with Jackson to Bayard, No. 109, November 19, 1885, MS. Desp. Mex., Vol. 87. 83 Compare this with the statement in the Department's instructions of September 14, 1885 (quoted above) that " the only question of law arising in this case is whether a vessel driven by stress of weather into a foreign port is liable to penal process in such port." 34 Bayard to Jackson, No. 102, December 5, 1885, MS. Inst. Mex., Vol. 21.

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sponding employees the part to which they were entitled," the property of American citizen, brought into a Mexican, as into a friendly, port, for security from the dangers of the sea, and with no criminal intent whatsoever, has been confiscated and sacrificed by the harsh enforcement of the mere letter, in reckless disregard of the reason, and therefore, the life of the Mexican L a w ; and that, too, in contempt of the interposition of the American Government through its Minister at this Capital. 3 5

The subsequent correspondence on this case will be dealt with below. The Schooner " Mina Bell " In an instruction dated April 19, 1879, Secretary Evarts instructed Foster to present to the Mexican government the claim of the owners of the schooner " Mina Bell," arising out of the seizure and detention of that vessel by the Mexican customs authorities at San Bias. It appears, according to Secretary Evarts' statement of the facts, that the " Mina Bell " sailed from San Francisco on July 22, 1871, for San Bias to obtain a cargo of timber there. It had on board clothes and supplies for the employees of the owner engaged in cutting timber in Mexico. These supplies were of a value of $2,890, and had not been entered on a manifest since it was believed that they were entitled by Mexican laws to be admitted duty free. The vessel having anchored four miles off the port of San Bias, a Mexican boat containing six marines commenced firing on it without warning. Thereafter the officer in charge of the marines took control of the " Mina Bell," ordered her into the harbor and seized the supplies on board. The captain submitted a schedule of the goods and claimed that they should be admitted duty free, but this was denied by the collector, and proceedings were commenced against the vessel in the local courts. As a result of these proceedings, the master of the vessel was fined $1,200, and both the vessel and cargo were held for the payment of the fine. After a detention of three or four months, the vessel was finally released, Jackson to Mariscal, December 17, 1885, enclosure with Jackson to Bayard, No. 127, December 26, 1885, MS. Desp. Mex., Vol. 87. 85

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but was compelled to return to San Francisco without any cargo.36 The Mexican Foreign Office promised to transmit the case to the Treasury Department and to inform the Legation of the results of the investigation of the case. It appears that in August, 1879, the Treasury Department published a pamphlet containing all the documents in the case, a copy of which was sent to the American Legation. Nothing further seems to have happened in the case until it was recalled to the attention of the Mexican government by Jackson in 1885. Mariscal then stated that since the Legation had not, after the receipt of the pamphlet, pressed the claim, it had been assumed by the Mexican government that " in view of the proofs of said pamphlet, or knowing, at least, that the business was finally settled in the Courts," the Legation had decided not to press the case. Mariscal stated that he was restrained from discussing the facts of the case by the respect which he owed to the duly pronounced judgment of the Mexican court and to the principle of international law " which establishes that determinate sentences dictated by competent Judges or Tribunals should be considered as just and incontrovertible." He added that the claimants had not availed themselves of the opportunity of appeal which the laws afforded to them, and for this reason " the sentence was legally sustained and acquired the authority of a thing judged." After this " the Government of Mexico has nothing to do in the case." 37 John C. Joy On June 4, 1885, Acting Secretary Porter instructed Jackson to present to the Mexican government the claim of Mr. John C. Joy for damages to the amount of $4,217 (including an item of $2,500 for indirect damages), arising out of personal injuries and property losses sustained at the hands of Mexican customs officials at L a Ascension in the state of Chihuahua in May, 36

Evarts to Foster, No. 623, April 19, 1897, MS. Inst. Mex., Vol. 19. Mariscal to Jackson, December 18, 1885, enclosure with Jackson to Bayard, No. 126, December 22, 1885, M S . Desp. Mex., Vol. 87. 37

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JUSTICE

1884. It appears that Mr. Joy was transporting to New Mexico a drove of ninety-seven horses and that by inadvertence (or so he alleged) he passed the Mexican customhouse at L a Ascension without having his papers certified. Thereafter he was set upon and beaten by Mexican customs officers and his horses were seized. In the opinion of the Department of State, the claimant was entitled to be indemnified by the government of Mexico. There might be some question as to the consequential or exemplary damages claimed, but not so as to reparation for direct injuries involved. 38 In presenting the claim to the Mexican government, Jackson stated that, from all points of view, the punishment inflicted upon Joy seemed " hugely disproportioned to the venial offense with which he was charged." 39 In reply to this note, Mariscal informed Jackson that the complaint would be transmitted to the Treasury Department " solely and exclusively for the purpose of investigating the matter as quickly as possible " in order that the guilty parties might be punished. A t the same time, Mariscal pointed out that Mr. Joy had appealed to no Mexican authorities except an alcade, " quite a subordinate officer in the administrative rank," and that Joy had abstained from all demands for justice before the properly constituted superior authorities. Mariscal stated that in analogous cases he had been obliged to manifest to Jackson's predecessor the " surprise and pain " his Department had felt each time that American citizens had undertaken to convert their grievances into diplomatic questions, without having previously made any effort to bring these grievances before any tribunal or district authorities who might have repaired the injury. I t has b e e n o b s e r v e d that there is a certain t e n d e n c y on the part of these claimants to regard those incidents w h i c h occur along the b o u n d a r y line of the R e p u b l i c s as of an exceptional character, w h i c h places t h e m at once, and w i t h out any judicial process, in the c a t e g o r y of international cases, w h e n it is p e r f e c t l y o b v i o u s that this idea has no legal or political basis, and that the nature of said a c t s does not change w h e t h e r t h e y take place on the F r o n t i e r or in the interior of the R e p u b l i c , because t h r o u g h o u t this territory there are S8

Porter to Jackson, No. 2, June 4, 1885, M S . Inst. Mex., Vol. 21.

39

Jackson to Mariscal, June 23, 1885, enclosure with Jackson to Bayard, N o . 9,

July 2, 1885, M S . Desp. Mex., Vol. 85.

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properly constituted authorities whose duty is to protect honest men and punish all persons — whether foreigners or natives — who violate the existing law.

Mariscal referred to the observations he had already made on this subject in the case of the schooner " Daylight," and stated that the increase of trade between the two countries made it desirable that the citizens of one visiting the other across the frontier " should become accustomed to obey the respective authorities and should repose confidence in them, believing that in all cases these officers will accord prompt and complete justice." Otherwise, if every wrong, real or imaginary, were to be at once converted into a diplomatic controversy, neither the American Legation nor the Mexican Department of Foreign Affairs would have time " to attend to the numerous actions to which such a system would give rise." 40 In transmitting the above note to Secretary Bayard, Jackson expressed apprehension at the position there assumed on the subject of diplomatic interposition. He thought that if the relations between the two countries were to remain amicable, it was of the greatest importance that the principles controlling interposition in these cases should be settled at the earliest practicable moment. He denied that there was any analogy between the case of the " Daylight" and the case of Mr. Joy, and then stated as follows: Still, recognizing, as I do, the importance of drawing, at once, a clear line of distinction between the multitudinous cases which are occurring, (and I f e a r will continue to occur), in which American citizens, who bring their persons and their property into Mexican T e r r i t o r y must look, as it seems to me, in the first place, to the exhaustion of Mexican law as administered by Mexican Courts, for the protection of their rights, and the comparatively f e w cases of wrongs inflicted directly by the Government itself through its official agencies, where it is manifest from the beginning that it would be idle, and therefore improper, to refer the citizen to the ordinary remedies provided by the law of the land, I have thought it wise to await further instructions f r o m yourself, or a further communication f r o m M r . Mariscal (which I have a right to expect) before joining issue with him, upon any of his propositions. 4 1 40 Mariscal to Jackson, June 26,1885, enclosure with Jackson to Bayard, No. 9, July 2, 1883, MS. Desp. Mex., Vol. 85. 41 Jackson to Bayard, No. 9, J u l y 2, 1885, MS. Desp. Mex., Vol. 85.

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JUSTICE

In response to this request for instructions, Secretary Bayard stated that the position assumed by Mariscal was not new. If the case were reversed, and a Mexican were maltreated by the customs authorities of the United States, it was not difficult to suppose that the Mexican government would ask an investigation and the punishment of the delinquent officer, and it was scarcely to be expected that the government of the United States would remit the claimant to the local courts and allege that diplomatic cognizance of the matter could be entertained only after a denial of justice had occurred. Bayard referred to the fact that Mr. Joy had appealed to an alcalde, who was the nearest local Mexican authority, but this application had not been with the most satisfactory results. Under the circumstances, said Bayard, it was the Department's judgment that Jackson " should decline to discuss the general principles advanced by M r . M a r i s c a l " but should await his specific answer in Mr. Joy's case after the Treasury authorities should have reported. 42 Resignation

of Minister

Jackson

A t this point in the discussion of general principles, Secretary Bayard instructed Jackson to revive the long dormant claim of Mrs. Ernestine Stevens arising out of the seizure b y Mexican officials in 1867 of a quantity of coal belonging to her husband, who, shortly afterward, had died in Mexico. This claim had not been presented to the Commission of 1868, and was accordingly technically barred by the convention establishing that Commission, but it had been presented to the Mexican government by the Department of State in 1878 as " a strong case for the equitable consideration of the Mexican Government." 4 3 Upon receiving instructions to revive the claim, Jackson wrote a long despatch to Secretary Bayard reviewing the whole claims situation and asking for further instructions. He referred to the fact that Foster had been unable to obtain any satisfaction on the Stevens claim, and that the same thing had been true in regard to all of the claims 42 43

Bayard to Jackson, No. 25, July 20, 1885, M S . Inst. Mex., Vol. 21. Evarts to Foster, No. 458, March 23, 1878, M S . Inst. Mex., Vol. 19.

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which, during his six years of office, he had submitted to the Mexican government. The same situation had been encountered by Mr. Morgan during his term of five years. Jackson stated that the conviction was forced upon him, both by the experience of his predecessors and the actual status of cases which he himself had presented, that " unless something be done to check the momentum of the past," it would certainly engulf all the claims which he might present. In support of this statement, he referred at length to the four claims described above, and stated that the position taken by the Mexican government in those cases would apply with full force to the claim of Mrs. Stevens. Jackson pointed out that, taking these four cases together, the Mexican government was endeavoring to establish, not only that diplomatic interposition could not take place until after a denial of justice in the courts, but also that a judgment rendered by a Mexican court could not even be the subject of diplomatic discussion. Under the circumstances, he did not see upon what ground there was any hope that the Mexican government would consent to inquire into the merits of the Stevens claim. He concluded as follows: But, after long and painful reflection, I profoundly realize that I should be false to my sense of official duty and to myself, if I refrained from expressing, at this juncture, m y matured opinion that we should either cease f r o m presenting any claim whatever to that Government, or should insist upon a respectful consideration and speedy adjustment, under the established principles of International Law, of the claims already submitted and discussed; and that it would be worse than idle to undertake the revival of one of the large number of claims which are counted dead by the Mexican Government, until the dogmas of Mexican Diplomacy, by which it will be assumed that they were consigned to the tomb, shall have been exploded; for while such effort will certainly redound in no benefit to the claimant, it cannot fail, under existing circumstances, to prejudice our chances of success in other, younger and intrinsically stronger cases. I have thus made bold to express the conclusions forced upon me by the unhappy condition into which this matter of claims against the Mexican Government, presented through this Legation, has been lapsing for years. Convinced, on the one hand, that, if the case of Mrs. Stevens is t o be effectively revived, something far more forcible and decisive than the ordinary stereotyped note recalling it to the attention — something, indeed, tantamount to

DENIAL OF

JUSTICE

opening a fire all along the line — must be written; and anxious, on the other, to do nothing that shall mar in the slightest degree the cordial relations between the two Governments, I turn to you for specific direction; simply adding that I have thought it might be wise to await, yet awhile longer, the reply to my note in the case of the " Daylight," and the specific answer which was promised in the case of Mr. Joy — thus allowing the silence of Mr. Mariscal, should it continue, to become yet more significant; and, in the meanwhile, to make out a catalogue of the claims which for twelve years past have been accumulating in this Legation. 44 In reply, B a y a r d wrote that the Department shared with J a c k son " the feeling that protracted delay, refusal to consider questions of equity and justice, presented in a spirit of perfectly evident candour and good will, and, in some instances, neglectful silence " were not what the United States expected from a neighbor " toward whom we have on every occasion manifested the warmest friendship."

T h e last occasion, he said, of an inde-

pendent adjudication of claims between the two countries had been afforded b y the Claims Commission of 1 8 6 8 .

Since then, no

channel had been open " save the diplomatic w a y , " and J a c k s o n ' s sober examination of the subject showed the unsatisfactory operation of this resort, " so necessary in the intercourse of friendly states."

H e was of the opinion that replies should be pressed for

in all pending cases and that J a c k s o n should intimate to the M e x i can government, courteously but clearly, " that refusal on its part to state its defense is a serious disrespect which we cannot but view with mingled regret and dissatisfaction."

B a y a r d concluded

b y stating that the claim of M r s . Stevens was on a different basis from the others because of the treaty bar which the Mexican government could raise against it.

All that could be asked in this

case was that the Mexican government might avail itself of the opportunity to manifest its sense of magnanimity and justice in the matter if its examination of the appeal should w a r r a n t it in doing s o . " U p o n the receipt of this instruction, J a c k s o n again took up the case of the " Rebecca " and informed Mariscal that the government of the United States could not accede to the position 44 45

Jackson to Bayard, No. 1 3 1 , December 30, 1885, M S . Desp. Mex., Vol. 87. Bayard to Jackson, No. 120, January 26, 1886, M S . Inst. Mex., Vol. 21.

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taken by the Mexican government in that case. Mariscal replied, however, that the Mexican government could do nothing in the matter. He asserted that the case was one which had been " examined, decided upon and executed by the judicial power, in conformity with the laws of the Republic, and which must not and can not be subject to revision by the Executive." The Mexican Constitution guaranteed " the most complete independence among the supreme Federal Powers, and the duty as well as the decorum of the President of the Republic, prevent him from accepting a discussion respecting the legality of the acts of the other powers." As for Jackson's intimation that the real motive behind the imposition of a fine in this case had been the desire of the Mexican officials to share in it, Mariscal asserted that the district judges who took cognizance of cases of contraband had no share in the distribution of fines imposed by them. However, he did not deny that the customs authorities involved in the case had shared in the proceeds of the sale of the vessel. He added that the President of the Mexican Republic had, on occasion, remitted heavy fines imposed upon American vessels for violation of the customs laws, but in the present case it was not within his power " to destroy what was done by virtue of a sentence pronounced with the legal requisites." 46 In response to this note, Jackson took exception to the principle announced by Mariscal that "determinate sentences dictated by competent Judges or Tribunals should be considered as just and incontrovertible." Jackson asserted that, in dealing with the complaints of American citizens, he had " clung tenaciously to the principle that the foreigner, who shall place his person or his property upon Mexican soil, must submit them to Mexican Law as administered by Mexican Courts; and that his own Government will always assume that those laws have been rightly administered." But he had invariably coupled this principle with another which was inseparable from it, namely, that if a litigation between private parties in a Mexican court should finally result in an unjust sentence against an American citizen, he would have the 46

Mariscal to Jackson, February 9, 1866, enclosure with Jackson to Bayard, No. 160, February 25, 1886, MS. Desp. Méx., Vol. 88.

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right " to appeal to his own Government for protection against it." This latter principle was, he said, quite inconsistent with the one advanced by Mariscal, and one or the other must succumb, or the hope of maintaining cordial relationships between the two governments would be imperiled. In support of this statement he referred to the rule announced by Grotius that an unjust sentence prejudicial to a foreigner entitled his government to obtain reparation by reprisals, and to similar statements of Bynkershoek, Vattel and Wheaton. He assumed that the resort to diplomatic interposition had been for the purpose of superseding the more violent remedy of reprisals, but under the doctrine that a judgment of a court was an impassable bar to diplomatic interposition, no recourse was left to the government of the injured foreigner but the remedy of reprisals. Furthermore, it seemed that Mariscal intended to apply this doctrine not only to judgments in suits between private individuals, but also in cases where the wrong complained of was inflicted " by act of Government through its officials." If this view should be sustained, Jackson thought that the " via diplomatica " would disappear from the relationships of nations. If Mariscal did not concede the right of the government of the United States to decide for itself the question whether justice had been denied to one of its citizens by the sentence of a Mexican court, then it would seem that the mere privilege of being heard before condemnation was all that would be included in the idea of justice. In fact, the right to decide such a question for itself involved " the exercise of a power which no sovereignty can possibly abdicate, since it is coupled with a duty which no Government, that has a decent respect for itself or the opinion of mankind, can fail to discharge! " 4 7 Upon receipt of copies of the above correspondence, Secretary B a y a r d seems to have weakened in his former position on the subject and to have felt that the claim for compensation in the " Rebecca " case should be put upon equitable rather than legal grounds. He accordingly instructed Jackson as follows: 4 7 Jackson to Mariscal, February 25, 1886, enclosure with Jackson to Bayard, No. 160, February 25, 1886, MS. Desp. Mex., Vol. 88.

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T h e position t a k e n b y y o u is in the main sound and in the line of y o u r instructions.

I am n o t quite sure, h o w e v e r , that y o u m a y not h a v e developed

the logical aspects of the a r g u m e n t b e y o n d the limits w h i c h I m i g h t p r e f e r r e d t o assign to them.

have

I t w a s clear to m y m i n d that the case w a s one

exhibiting sufficient equities to m a k e it the occasion of an earnest effort on the part of b o t h G o v e r n m e n t s to bring a b o u t a consideration t h e r e o f , outside of and a b o v e the narrow bounds of precise law.

T h i s resort is a l w a y s in order

as b e t w e e n sovereigns, w h o are responsible t o no c o m m o n arbitrator save the national sense of j u s t i c e and e q u i t y . . . . H e n c e , there m a y be some e m b a r r a s s m e n t to y o u r s e l f , in the f u r t h e r conduct of the matter, if its technical discussion b e pushed t o a d e a d l o c k b y confining ourselves to the allegation that such a denial of j u s t i c e has in f a c t been perpetrated against an A m e r i c a n citizen as international l a w m a y and should take cognizance of.

I t m a y be p r e m a t u r e to hinge the a r g u m e n t on the right-

fulness of reprisals in the given case.

A n d it m a y not be convenient to f o r c e

Señor M a r i s c a l ' s hand, and constrain him to abide b y the doctrine he has announced ( a p p a r e n t l y as a finality in his e y e s ) that there can be no denial of justice w h e r e the r e c l a i m a n t has v o l u n t a r i l y o m i t t e d to a p p l y to the ordinary f o r m of redress prescribed by the laws. I understand the a r g u m e n t laid d o w n in y o u r note of 25th F e b r u a r y to Señor M a r i s c a l as being a v o w e d l y h y p o t h e t i c a l , as setting f o r t h the ultimate d r i f t of the discussion should an a c t u a l denial of j u s t i c e be established.

I

understand, also that Señor M a r i s c a l ' s doctrine, to w h i c h I h a v e j u s t a d v e r t e d , is put f o r w a r d as an offset to a n y assumption of denial of justice w h i c h y o u might set up.

If I a m right in this I see no reason w h y the discussion m a y

not be led a w a y f r o m the narrow p a t h w a y t o w a r d a dead-lock, and into the broader field of equitable consideration, as b e t w e e n sovereigns w h o are and must be equally jealous of their judicial independence, and e q u a l l y a n i m a t e d b y m o t i v e s of deferential a m i t y .

M a t t e r s of this nature m a y be b e s t settled

b y f r a n k concurrence, rather than b y insistence on the one hand and submission on the other. 4 8

In the meantime, Mariscal sent a long and elaborately argued reply to Jackson's note. A s for the intrinsic justice of the case of the " Rebecca," Mariscal stated that he knew nothing about it, nor was it within his province to investigate it since the case had been decided by a competent judge. 49 He insisted that the doctrine of the finality of the judgments of domestic courts was a principle of universal law known in all civilized nations. As for Bayard to Jackson, No. 141, March 9, 1S86, MS. Inst. Méx., Vol. 21. This position effectively disposed of any consideration of the case on equitable grounds as suggested by Secretary Bayard. 43

49

DENIAL OF JUSTICE the doctrine of Grotius, cited by Jackson, that unjust sentences called for reprisals, this doctrine " might be accepted as incontrovertible," but nevertheless an insoluble difficulty would be encountered whenever it was sought to be applied. If the injustice of a decision was " plain, palpable, and there is no question regarding it " and still it was sustained by the country where the sentence had been pronounced, then the doctrine appeared to be founded on reason as well as on the authority of respectable jurists. " But the difficulty lies in ascertaining who is to pass an opinion upon the clearness of the injustice of the sentence, under what conditions can this be done, what are the cases in which the injustice shall be held as palpable." Upon this point, said Mariscal, no light was thrown by any of the authorities cited by Jackson. To hold that this should be left to the government of the injured foreigner would be to place the decision in the hands of an interested party. However upright such a government might be, it could not be deemed impartial in the matter. Furthermore, it would scarcely ever have the necessary means to give such an opinion, when acts and legal questions occurring abroad are under consideration. Mariscal then examined in detail numerous authorities on the subject of denial of justice, and concluded that if the jurists of America and Europe were consulted, one by one, " nearly all of them would acknowledge in theory the principle that the notoriously unjust sentences against foreigners must not be respected by their Governments," but that quite a different result would be obtained on asking these jurists who was to pronounce judgment upon the matter, or what means should be employed to arrive at an impartial and adequate conclusion. Some would say (as we have before seen) that the notoriety of the injustice could not be shown without the votes of the generality of nations, should this be possible; others, that only when the foreigner has been denied the means provided for the natives, or when the forms of procedure have been changed to his prejudice; others, when it can be proven that there has been corruption on the part of the judges; others, perhaps, in different cases. But it would be difficult to find any one who would sustain that the above takes place when the Government of the complainant looks upon the facts in a manner different from the opinion of the Tribunal which pronounced the

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sentence, even though supposing that the difference of opinion should consist of n e w e v i d e n c e hot produced in the course of the suit.

In the particular case of the " Rebecca," no circumstances had existed which might, in accordance with the opinions of the authorities quoted, have rendered applicable the doctrine set forth by Grotius. A n d neither its proportions, n o r the s c a n t y interest w h i c h it inspires, can m a k e it possible f o r the generality of nations to decide in f a v o r of or against the j u s t i c e of the sentence; n o r h a v e the proceedings been altered in o d i u m t o w a r d s a foreigner, but w e r e carried on as the l a w s p r o v i d e , j u s t the same as are followed when M e x i c a n s are i n t e r e s t e d ; n o r has there been a n y corruption on the part of the J u d g e or of those w h o intervened in the suit, so as to influence the result of the same, since nothing of the kind has e v e n b e e n insinuated.

Finally, C a p t a i n D u j a y w a s r e f u s e d none of the recourses w h i c h

the laws of the country allow in this class of suits.

On the contrary,' he w a s

absolutely free to e m p l o y the recourse of appeal, and it w a s he w h o declined to interpose the same, p r e f e r r i n g to present his complaint at o n c e t o W a s h ington.

In conclusion, Mariscal resorted to a practical argument. Suppose, he said, the Mexican government should in this particular instance condescend to revise the judgment rendered b y the local court, what would be the result? S o soon as it b e c a m e known, the foreigners in this c o u n t r y w o u l d no longer appeal f r o m the decisions w h i c h were a d v e r s e to t h e m , b e f o r e the r e s p e c t i v e Superior C o u r t , but exclusively to the G o v e r n m e n t s of their c o u n t r y , so that, with ex parte allegations and p r o o f s , t h e y might declare u n j u s t the judicial decisions, and ask f r o m the M e x i c a n G o v e r n m e n t the non-compliance of the same.

Instead of interposing their appeal within the legal time, t h e y w o u l d

allow this to expire and that the resolution should b e c o m e a matter judged

already

upon, confident that this would not i n v o l v e a n y i m p o r t a n c e w h a t e v e r

f o r them, considering the recourse w h i c h , w i t h o u t a n y

fixed

time or a n y

rules, they would a l w a y s h a v e at their disposal so as t o end their suits w i t h the intervention of their G o v e r n m e n t s . H o w could such an idea be consented t o ?

N o G o v e r n m e n t w h i c h respects

itself could abdicate, in that f o r m , the right of s o v e r e i g n t y p e r t a i n i n g to it to exercise jurisdiction, in an independent and absolute manner, in all cases submitted to its laws, whether natives or foreigners are interested therein. 5 0 5 0 Mariscal to J. L. Morgan, April 2, 1886, enclosure with Morgan to Bayard, No. 200, April i2, 1886, MS. Desp. Mex., Vol. 88. Italics in original.

D E N I A L OF JUSTICE

256

Upon receipt of this note, Secretary Bayard wrote to J. L . Morgan (who was in charge of the Legation while Jackson was on leave of absence) that, in view of Mariscal's position, " there would seem to be no reason to hope for any more favorable result by reviewing the case," and that he would accordingly not attempt to do so. A t the same time he added the following reservation : W h i l e I do not propose to contest the general principles w h i c h are laid down b y M r . M a r i s c a l in the p r e l i m i n a r y pages of his note, I m u s t offer the qualification that his a r g u m e n t implies that the claimants' g o v e r n m e n t must determine f o r itself w h e t h e r a denial of justice, supposing it to be controverted b y the d e f e n d a n t s ' g o v e r n m e n t was sufficiently to j u s t i f y a suspension of intercourse or reprisals.

flagrant

and glaring

A n d while I do not con-

sider that this can be p r e d i c a t e d of the action of the M e x i c a n tribunals in the " R e b e c c a " case, y e t I m u s t say that it is a source of regret and disappointment to this g o v e r n m e n t that the M e x i c a n G o v e r n m e n t did not recognize that its course in this case h a d been harsh and oppressive, and hasten to m a k e p r o m p t and s a t i s f a c t o r y a m e n d s t h e r e f o r as it was hoped its sense of justice would h a v e led it to do. Y o u m a y express these v i e w s to M r . M a r i s c a l . 5 1

In other words, Secretary Bayard was apparently prepared to accept in this case the broad doctrine of the supremacy of the local administration of justice as a bar to diplomatic interposition in all cases that were not sufficiently grave to involve the question of reprisals or suspension of diplomatic relations. When Jackson returned to his post and found that the position originally taken by the Department of State in the case of the " Rebecca " had been abandoned during his absence, he was very indignant. In a long despatch to Bayard he reviewed the principles he had previously sought to uphold on instructions from the Department, and expressed his conviction that these principles should be maintained. T h a t the a c t u a l situation d e m a n d s the application of such principle or power a d m i t s of no d o u b t .

V a i n l y h a v e I labored if I h a v e failed t o c o n v e y

to y o u r m i n d the t r u t h that the administration of justice in the M e x i c a n C o u r t room can n e v e r be relied on, if b r i b e r y , on the one hand, or official p o w e r on the other, see proper to t o u c h the scale. 51

F r o m A m e r i c a n citizens in various

Bayard to Morgan, No. 167, April 27, 1886, MS. Inst. Mex., V o l . 21.

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257

parts of M e x i c o c o m e s complaint to this one e f f e c t ; and I a m c o n v i n c e d that t h e h o p e l e s s n e s s o f s e c u r i n g j u s t i c e f r o m M e x i c a n C o u r t s , or M e x i c a n o f f i c i a l s , is p r o d u c i n g in t h e m its l e g i t i m a t e f r u i t o f d i s c o u r a g e m e n t ; a n d is c o m b i n i n g w i t h o t h e r p r e j u d i c i a l i n f l u e n c e s , o f w h i c h m e n t i o n h a s b e e n m a d e in m y p a s t correspondence, to w e a k e n our hold u p o n c o m m e r c e in M e x i c o , a n d to contract the hope of t h e future.5-'

For these reasons he had sought to make the case of the " Rebecca " a test case, believing that the treatment of that vessel by the Mexican authorities, if exposed to the world, would " s h o c k the general sense of mankind." H e did not believe that the Mexican government in the last resort would have permitted such exposure to be made. Accordingly, if that government had persistently refused to look into the merits of the claim, he would have urged the policy of making a peremptory demand upon it for the amount of damages claimed. He was convinced that this demand would have been complied with. He had given the case a great deal of thought, and it had not occurred to him as possible that the case might be disposed of during his absence. There was no doubt, he said, that the instruction to Morgan during his absence had put an end to the case so far as the Legation was concerned, yet to his surprise, he had learned that, subsequent to the writing of this instruction, Secretary Bayard had informed the attorneys of the claimants " that the United States representative at the City of Mexico has been instructed to continue to press the 52

A year previously, J a c k s o n had expressed to B a y a r d a similar opinion of

the M e x i c a n judicial system in the f o l l o w i n g w o r d s : " I have more than once intimated t h a t the M e x i c a n C o u r t R o o m is n o t a place where ' justice is judicially administered,' in the English and A m e r i c a n acceptation of those terms.

In m y correspondence w i t h the M e x i c a n g o v e r n m e n t , a n d

w i t h American citizens I a l w a y s assume that it is; but, in m y correspondence w i t h yourself, my sense of d u t y impels me t o express the conviction t h a t it is not.

I

think it w o u l d be difficult, n a y ! that it w o u l d be impossible, to find a n y intelligent man in Mexico, w h o is also honest and conversant w i t h public affairs, entertaining a n y other opinion.

It w a s but yesterday t h a t one of the most conspicuous M e x i -

cans in this C i t y , o c c u p y i n g no political position, w i t h o u t the slightest i n v i t a t i o n f r o m me to impart information of the kind, g a v e me a n account of a v e r y

heavy

litigation in which he w a s deeply interested, and stated that, unless the personal influence of General D i a z should intervene to save him, his rights w o u l d be lost through bribery mere gossip." V o l . 87.

of the Judges.

I hope y o u will believe t h a t I a m indulging in no

J a c k s o n to B a y a r d , N o . 100, N o v e m b e r 7, 1885, M S . D e s p . M e x . ,

DENIAL OF JUSTICE case." No such instruction had in fact been given. As for the possibility of presenting the case of the " Rebecca " on equitable rather than on legal grounds, Jackson pointed out that, in view of the position assumed by Mariscal, this would be worse than useless. He referred to a statement once made by Mariscal that an appeal by an American citizen to diplomatic protection was " an additional reason for not entertaining his claim." Jackson concluded as follows: The effect of succumbing to such assumption must be enfeebling, I think, to any American representative at this Capital; it is paralyzing to one who, like myself, has expressed in official correspondence views so decided of the " R e b e c c a " outrage upon personal right and international deference; and who is oppressed by the conviction that, if some decisive action,' looking to the protection generally of American citizens and property in Mexico, cannot be predicated upon it, such action can be predicated on nothing. T o say, therefore, that I am " embarrassed " in " the further c o n d u c t " of the " Rebecca " " matter " does not fully reveal my condition. I find myself impotent to carry out your instructions; and a demoralizing sense of weakness runs along the entire line of m y duty.

Under the circumstances he felt that there was but one thing to do, and that was to submit his resignation.53 Just at this time the famous Cutting case arose, and action on Jackson's resignation was postponed. It will be recalled that Cutting, an American citizen, published in a Texas newspaper an alleged libel on a Mexican citizen, and that when he subsequently went to Mexico he was arrested and subjected to criminal prosecution for this libel. When informed of Cutting's arrest, Secretary Bayard immediately intervened and demanded his release. This demand was based on two grounds; first, that the Mexican government could not punish an American citizen in Mexico for an act committed in the United States, and second, that the proceedings against Cutting in Mexico had involved a denial of justice. On this second point Bayard stated as follows: B y the law of Nations, no punishment can be inflicted by a sovereign on citizens of other countries unless in conformity with those sanctions of justice which all civilized nations hold in common. 53

Among these sanctions are the

Jackson to Bayard, No. 256, June 30, 1886, MS. Desp. Mex., Vol. 90.

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2

59

right of having the facts on which the charge of guilt was made examined b y an impartial court; the explanation to the accused of these facts, the opportunity granted to him of counsel; such delay as is necessary to prepare his case, permission, in all cases, not capital, to go at large on bail till trial; the due production under oath of all evidence prejudicing the accused, giving him the right of cross-examination, the right to produce his own evidence in exculpation, release even from temporary imprisonment in all cases where the charge is simply one of threatened breach of the peace, and where due security to keep the peace is tendered. A l l these sanctions were violated in the present case. Mr. Cutting was summarily imprisoned by a tribunal whose partiality and incompetency were alike shown by its proceedings. He was refused counsel; he was refused an interpreter t o explain to him the nature of the charges brought against him; if there was evidence against him, it was not produced under oath, with an opportunity given him for crossexamination, bail was refused to him, and after a trial, if it can be called such, violating in its way the fundamental sanctions of civilized justice, he was cast into a " loathsome and filthy " cell where according to one of the affidavits attached to Mr. Brigham's report, " there are from six to eight other prisoners, and when the door is locked there are no other means of ventilation," an adobe house, almost air tight, with a " d i r t floor"; he was allowed about " eight and one half cents American money for his subsistence " ; he was " not furnished with any bedding not even a blanket." In this wretched cell, subjected to pains and deprivations which no civilized government should permit to be inflicted on those detained in its prisons, he still languishes; and this for an act committed in the United States and in itself not subjcct to prosecution in any humane system of jurisprudence, and after a trial violating the chief sanctions of criminal procedure.

These circumstances, said Bayard, provided a basis for demanding Cutting's immediate release that the government of the United States would " not permit to be questioned." 54 It will be noted that in this instance the question of exhaustion of local remedies and of the necessity of appeal to the highest local court were not mentioned. As for the question which government, in the case of a denial of justice, was to pass upon the justice or injustice of the proceedings, no room was left for doubt that in Bayard's opinion this was a matter for the government of the injured individual. Bayard subsequently wrote to Jackson that the Cutting case had led to an extended conversation between himself and M r . 54

Bayard to Jackson, No. 221, July 20, 1886, MS. Inst. Mex., Vol. 21.

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Romero, the Mexican Minister at Washington, on the general subject of the treatment by Mexican authorities of American citizens and their property interests in Mexico. Bayard reported this conversation in part as follows: I stated to h i m . personally, and at some length, the single voice that h a d c o m e to this D e p a r t m e n t

f r o m M r . F o s t e r , M r . M o r g a n and yourself, in

w h i c h a declaration w a s m a d e of the hopelessness of obtaining justice t o our citizens in cases w h e r e t h e y had been wronged b y the officials and g o v e r n ment of M e x i c o . I also called his attention t o the a v o w e d policy and action of M r . M a r i s cal of compelling all c l a i m s wherein the g o v e r n m e n t of M e x i c o was sought to be held liable f o r tortious proceedings to be tried and decided in tribunals of her o w n creation and under her sole control, whose judgments, he claimed, should be held final and conclusive against citizens of the United States. A s this pretension of exclusive control w a s now under consideration and the s u b j e c t of correspondence, n o t a b l y

in the case of

the " R e b e c c a , "

I

stated m e r e l y that the U n i t e d S t a t e s did not accept the j u d g m e n t s of M e x i c a n tribunals in cases w h e r e M e x i c o w a s a p a r t y to the dispute to be binding upon the U n i t e d

States.

I passed, h o w e v e r , to the b r o a d e r v i e w of the necessity of administering international l a w s in a spirit of a m i t y , c o m i t y and j u s t i c e ; that these w e r e the wise and true p a t h s of p e a c e f u l g o v e r n m e n t and that the alternatives of reprisal and f o r c e w e r e the last and m o s t u n s a t i s f a c t o r y

resorts. 5 5

N o notice of Jackson's letter of June 30, 1886, containing his resignation was taken until August 19,1886, on which date Bayard wrote to Jackson informing him that his resignation had been accepted. 56 Jackson gathered from this letter that Bayard thought the reasons given for his resignation were trivial, and this brought from Jackson a long despatch defending his actions and criticising severely the various inconsistent and confusing instructions which had been sent to him in the four cases above mentioned. Jackson accused Bayard of " sheer indifference " to the problems facing the American Legation in Mexico. He complained that Bayard had, without any justification, retreated from the strongest case the Legation then had (the " Rebecca " ) and at the same time had made a " peremptory demand, resonant, as in the nature of things Bayard to Jackson, No. 228, July 27, 1886, MS. Inst. Mex., Vol. 21. 5« Bayard to Jackson, No. 236, August 19, 1886, MS. Inst. Mex., Vol. 21. 55

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it could but be, with the ring of impending war, in the weakest of conceivable cases." " It is interesting to compare Secretary Bayard's action in the " Rebecca " case with the position he took at the same time in the case of H. E. Kleman. Mr. Kleman, an American citizen, owned a ranch in Mexico near Piedras Negras and was engaged in the export of cattle to the United States. It appears that in 1886, the Mexican customs officials filed a complaint against him in the local courts on a charge that he had failed to pay an export tax on a herd of cattle which he had delivered in the United States. Notice of the proceedings was given by advertisement rather than personal service, and Kleman was apparently not aware of them; at any rate he did not attend them. By decree of the court, the authorities seized 177 head of cattle and 20 horses from Kleman's ranch and sold them at auction to pay the export duty and fines on the previous shipment. It appears that, when Kleman heard of this seizure, he offered to produce evidence that the cattle exported had belonged to someone else and that all proper charges had been paid. However, instead of reopening the case, the court issued a warrant for Kleman's arrest, and Kleman thereupon fled across the border to the United States. It appears that Kleman took no further steps to exhaust his local remedy in Mexico. On these facts, Secretary Bayard instructed Jackson that the case was one which called for the intervention of the government of the United States. It was of no consequence, he said, whether the " outrage " on Kleman had been committed in obedience to Mexican law or not. N o sovereign can restrict his international liability b y his own statutes. same principle applies to the rulings of his courts.

The

He can no more limit

his international liability by decisions of the judicial department of his government than he can by acts of the legislative department. T h e position that a sovereign is internationally liable f o r rulings of his courts, in violation of international law, was taken b y us early in the wars growing out of the French Revolution, and was

finally

British Government against w h o m it was advanced.

acceded to b y the

I t w a s also accepted

by us as respondents, after the late civil w a r , when the relations of the parties 5 7 Apparently Jackson is here referring to the Cutting case. Bayard, No. 307, September 4, 1886, M S . Desp. Mex., Vol. 91.

JacksoD to

2Ô2

DENIAL OF JUSTICE

being reversed, we agreed that we could not set up as a bar to a British claim for damages for illegal seizure, a decision of our courts that the seizure was legal. It is impossible for us to yield to Mexico a principle that we successfully maintained against Great Britain when she was belligerent and which we yielded to her when she was neutral. The question, then, in the present case, is whether the ruling of the Mexican Court sustaining the seizure in question was right by international law.

Bayard asserted without hesitation that the seizure had been wrong under international law, since a hearing had been refused to the defendant and an offer on his part to produce testimony in his defense had been followed by an order of the court directing his arrest.58 As a foreign sovereignty, said Bayard, the United States could not inquire by what municipal agency of Mexico the wrong had been done. " To us the Government of Mexico is a unit, and responsible for whatever wrongs either of its several departments may inflict upon us." He thought that this position was not inconsistent with the rule frequently declared by the Department of State that " when a Government opens its courts to alien suitors in claims against itself or its officers the judicial remedy must be exhausted by aliens who feel themselves aggrieved, before they can rightfully apply to their own sovereigns to intervene." In the present case, it was the duty of the claimant to exhaust his remedies in the Mexican courts before he came to his own government for diplomatic intervention, but Kleman had been precluded from doing this by the adverse proceedings instituted against him by the Mexican authorities, and hence it must be held that "justice was not only denied him, but denied in violation of settled principles of international law." Bayard concluded by saying that the question of the legality of the proceed68 The assertion that Kleman was refused a hearing was hardly in accord with the facts of the case. Kleman asserted that he had not appeared at the proceedings because he had not received any personal notice of them, although the proceedings had been advertised in accordance with the local law. The fact that a warrant for his arrest was subsequently issued could scarcely be construed as a denial of a hearing. Under the rule announced by Mariscal in the " Rebecca " case, Kleman should have submitted to the proceedings against him, and if these proceedings had been irregular he should have exhausted his remedies against the officials responsible for the irregularity.

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ings against Kleman under Mexican law was a question with which the Department of State had no concern. That Department could not undertake to review Mexican judicial or executive action by the standards of Mexican jurisprudence, " but it can review such action by the standard of international law; and testing the injuries done to Mr. Kleman by that standard, I am obliged to pronounce them, no matter what may be the municipal authority by which they are sustained, to be an unjust invasion by Mexico of the rights of a citizen of the United States." 59 It is difficult to find any basis in legal theory for reconciling the position of Bayard in the Kleman case with his final position in the case of the " Rebecca." Bayard seems to have been confused, not only on the legal issues involved, but also on the facts of both cases. It is scarcely to be wondered at that Jackson should have been puzzled as to the position he was supposed to take on the general subject of diplomatic interposition. In the Cutting case, the question of denial of justice as alleged by Secretary Bayard was soon overshadowed by the question of the international validity of the Mexican law giving to the courts criminal jurisdiction over acts committed in other jurisdictions. On this point the Mexican government argued that, since Cutting had voluntarily come within Mexican jurisdiction, he had submitted himself to the local laws and must abide by the decisions of the Mexican tribunals thereon. Although Bayard had apparently acquiesced in a similar claim in other cases, he emphatically rejected it in the Cutting case. One of his statements on this point has become a classical citation on the question of the supremacy of international rights and duty over municipal laws. That statement is as follows: In respect to the latter ground it is only necessary to say, that if a government could set up its own municipal laws as the final test of its international rights and obligations, then the rules of International L a w would be but the shadow of a name and would afford no protection either to states or to individuals. It has been constantly maintained and also admitted by the government of the United States that a government cannot appeal to its municipal regulations as an answer to demands f o r the fulfillment of international 59

Bayard to Jackson, No. 251, September 7, 1886, M S . Inst. Mex., Vol. 21.

DENIAL

OF

JUSTICE

duties. Such regulations may either exceed or fall short of the requirements of International L a w , and in either case that law furnishes the test of the nation's liability and not its own municipal rules. This proposition seems now to be so well understood and so generally accepted that it is not deemed a necessity to make citations or to adduce precedents in its support. 80 T h e owners

of the " R e b e c c a "

subsequently brought

their

c l a i m to the attention of the C o n g r e s s of the U n i t e d S t a t e s , a n d in 1 8 8 7 , t h a t b o d y c a l l e d u p o n the S e c r e t a r y of S t a t e f o r t h e p a p e r s in the c a s e .

S e c r e t a r y B a y a r d r e f u s e d t o c o m p l y w i t h this r e q u e s t

o n the g r o u n d t h a t the c o r r e s p o n d e n c e b e t w e e n the t w o g o v e r n m e n t s on the c a s e w a s " still o p e n a n d p r o c e e d i n g , " a n d t h a t its publication at that time would not be compatible with the public interest.

B a y a r d b r i e f l y o u t l i n e d the i s s u e in the c a s e a n d

de-

s c r i b e d the position of the D e p a r t m e n t of S t a t e a s f o l l o w s : This Department has contested and denied the doctrine that a government may set up the judgment of one of its own courts as a bar to an international claim, when such judgment is shown to have been unjust or in violation of the principles of international law; and has further maintained that, under the circumstances of the case and in view of the f a c t that the prior proceedings had been so palpably arbitrary and unjust, the master and owner were not bound to attempt further judicial remedies in the local tribunals. 8 1 A s a m a t t e r of f a c t , b o t h of t h e s e s t a t e m e n t s w e r e m i s l e a d i n g . I t w a s not true t h a t the c o r r e s p o n d e n c e in t h e c a s e w a s " still o p e n a n d p r o c e e d i n g , " since the c l a i m h a d b e e n d e f i n i t e l y a b a n d o n e d 80

Bayard to Connery, No. 200, November 1, 1887, MS. Inst. Mex., Vol. 22. Another classical citation inspired by the Cutting case is the following extract from President Cleveland's annual message to Congress of December 6, 1886: " When citizens of the United States voluntarily go into a foreign country, they must abide by the laws there in force, and will not be protected by their own Government from the consequences of an offense against those laws committed in such foreign country; but watchful care and interest of this Government over its citizens are not relinquished because they have gone abroad, and if charged with crime committed in the foreign land a fair and open trial, conducted with decent regard for justice and humanity, will be demanded for them. With less than that this Government will not be content when the life or liberty of its citizens is at stake." Richardson, op. cit., Vol. V I I I , p. 502. 61 Report of Bayard to the President, February 26, 1877, Senate Ex. Doc., 49th Cong., 2d Sess. Reprinted in Moore, International Law Digest, Vol. V I , pp. 666667.

DENIAL OF

JUSTICE

265

by the Legation on specific instructions from Bayard. Neither was Bayard's statement of the position of the Department of State on the issue in accordance with the final instructions he had sent to the Legation on the subject (April 27, 1886). In that instruction he had impliedly accepted the general principles laid down by Mariscal on the subject of exhaustion of local remedies and denial of justice, with the single qualification that a claimant's own government must determine for itself whether a denial of justice was sufficiently flagrant and glaring to justify reprisals or a suspension of diplomatic intercourse; a condition which he admitted did not exist in the " Rebecca " case. 82 Apparently in order to make good his statement that the D e partment was still pressing the case, Bayard thereupon sent instructions to Jackson's successor, Edward S. Bragg, to reopen the correspondence and present the claim again to the Mexican government. 63 Bragg complied with these instructions, although he wrote to Bayard that he found it " a difficult, as well as a delicate thing to do, owing to former correspondence, and the fact that the case had been at least twice closed, without any prospect of ever arriving at an amicable and satisfactory solution." 61 In reply to Bragg's note, Mariscal firmly declined to reconsider his position on the case. He observed that the Legation had made no effort to rebut the arguments he had advanced in his previous notes on the subject, and recalled that the government of the United States had in fact admitted that there had been no denial of justice in the case sufficient to warrant reprisals or a suspension of diplomatic relations. He expressed his surprise that the government of the United States should seek to reopen the case without meeting the arguments repeatedly advanced by the Mexican government for declining to consider it. In transmitting this note to Secretary Bayard, Bragg commented on it as follows: 82

See supra, p. 256.

63

B a y a r d to Bragg, N o . 3, F e b r u a r y 17, 1888, M S . Inst. M e x . , V o l . 22.

84

B r a g g to Mariscal, M a r c h 30, 1888, enclosure w i t h B r a g g to B a y a r d , N o . 15,

M a r c h 30, 1888, M S . Desp. M e x . , V o l . 95.

DENIAL OF

266

JUSTICE

This Government has a judicious fear at heart of the American people, but their constitutional disposition to trifle is so great that it crops out more and more as they feel certain of the desire of the Administration to preserve friendly relations with them. Mr. Mariscal's note is almost defiant; and I incline to the opinion that our Government is very much in the condition of the old man, in the spellingbook, who desired to drive boys out of his apple tree, and tried tufts of grass as missiles until the boys in defiance sat upon the limbs and jeered him; when he said in reply: " I will now try what virtue there is in stones," and, suiting the action to his words, a volley of stones soon cleared the apple tree, and brought back respectful demeanor on the part of the boys. 8 5

In 1890, Congress again requested copies of the correspondence in the case, and this time the request was granted. However, no action was taken on the correspondence by that body, and the Department of State displayed no further interest in the case. 66 On the face of the above record, it might be concluded that the long controversy between the two governments over the subjects of denial of justice and exhaustion of local remedies ended favorably for the Mexican viewpoint. In not a single case in which these issues were involved during this period did the United States succeed in breaking down the Mexican defense of the supremacy of the local administration of justice, and in several instances the Department of State went a long way toward recognizing in principle the validity of the Mexican contentions. Y e t it is equally apparent that the officials of the United States did not intend to make any concessions to the Mexican viewpoint so far as the practical operation of the doctrine of local redress was concerned. While recognizing the necessity of having some general rules of local redress, they showed no disposition to accept any formulation of those rules that threatened to deprive Americans in Mexico of the ordinary guarantees of security to which they were accustomed. However broad were their admissions of 65

B r a g g t o B a y a r d , N o . 66, June 7, 1888, M S . Desp. M c x . , V o l . 96.

66

T e n years later, Secretary H a y , in response to a letter f r o m one of the claim-

ants, recalled the fact that Congress h a d requested the papers in the case in 1890, and stated that under the circumstances it w a s c u s t o m a r y t o suspend the prosecution of a claim against a foreign government until Congress h a d t a k e n some action thereon. V o l . 248.

H a y to S. J. Allison, October 26, 1900, Domestic

Letters,

D e p t . of State,

DENIAL OF JUSTICE

267

the supremacy of the local administration of justice, it is clear that few American officials conceived of that doctrine as extending to the point of releasing the Mexican government from responsibility for an inefficient, biased or corrupt judiciary as judged from American standards. T h e ostensible aim of the Mexican doctrine was to establish the rule that foreigners coming into Mexico must accept whatever brand of administration of justice they found there, regardless of how it compared with any external standard. 67 It is clear that the officials of the Department of State had no intention of accepting any such rule. T h e fact that they made more concessions on the rule during this period than they had formerly been willing to do may be accounted for by the fact that the D i a z régime gave promise of a more orderly administration of justice in Mexico than had existed since the early days of the Republic. 68 T h e effect of changing practical conditions upon the attitudes 67

T h i s is frequently spoken of as the " C a l v o doctrine " although C a l v o h i m -

self did not maintain it in this extreme f o r m . 68

See Eagleton, op. cit., p. 107.

It is of interest to note t h a t both the " D a y l i g h t " case and the " Rebecca "

case h a v e recently been passed u p o n by the General C l a i m s Commission established under the C o n v e n t i o n of S e p t e m b e r 8, 1923, b e t w e e n the United States and M e x i c o . T h e question of the exhaustion of local remedies w a s not, h o w e v e r , in issue b e f o r e the Commission since b y Article s of the c o n v e n t i o n the t w o governments

had

agreed that no claim should be disallowed b y reason of a n y failure of the claimant t o exhaust local remedies. In the case of the " D a y l i g h t , " the decision of the Commission turned u p o n the issue w h e t h e r the collision in this case had been due to the negligence of the c o m m a n d e r of the M e x i c a n w a r vessel or to the force of the storm.

The Commis-

sion held that since there w a s no conclusive evidence establishing the former, the claim should be disallowed.

( O p i n i o n s of Commissioners,

In the case of the " R e b e c c a , " the Commission

V o l . I , p. 241.)

found that the seizure

and

confiscation of the goods and the subsequent sale of the vessel h a d been w r o n g f u l and made an a w a r d of $3,000 in f a v o r of the claimant.

T h i s decision w a s based

on the finding that the " R e b e c c a " had in f a c t entered the port of T a m p i c o in distress and hence should not h a v e been subjected to the operation of the regular c u s toms laws.

(Opinions

oj Commissioners,

V o l . II, p . 174.)

A claim w a s also brought on behalf of the estate of C a p t a i n D u j a y of t h e " Rebecca " for damages resulting from his arrest and imprisonment f o l l o w i n g t h e entry of the " Rebecca " into T a m p i c o .

In line w i t h its previous decision, the C o m -

mission held that the treatment accorded C a p t a i n D u j a y b y the Mexican authorities had been " clearly (Opinions

unjustifiable " and made an a w a r d of $300 against

of Commissioners,

V o l . I I , p. 180.)

Mexico.

268

DENIAL OF

JUSTICE

of the two governments toward these legal issues is well illustrated by the general character of the discussions on diplomatic protection that took place during the remainder of the D i a z régime. B y 1890 that régime was firmly established in Mexico and had demonstrated both its desire and its ability to create conditions favorable to industry and commerce. Foreigners were encouraged to establish new enterprises in the country and were treated with unusual consideration by government officials. T h e administration of justice was in better condition than it had been before in the history of the Republic. Complaints of injuries to American citizens received at the American Legation were less in number and importance than at any previous period. Under these conditions, the Department of State showed an increasing disposition to refer American complaints to their local remedies. T h e attitude of the Department at this time is well described in the following instruction from Secretary Gresham to Minister R y a n in April, 1893: In this connection, I call your attention to a general principle, with which you are of course familiar, — but which does not appear to be clearly understood by parties claiming to be American citizens, who not infrequently appeal for diplomatic intervention, where the decisions of the Mexican Courts are adverse to their claims. The principle referred to is that where complete reciprocal international equality is recognized, — as it is fully recognized between the United States and Mexico, a necessary consequence thereof is that each country must as a rule admit the competency and the disposition of the courts of the other country to do complete justice to all litigants properly subject to their jurisdiction, regardless of nationality. This presumption in favor of the competency, and the integrity of the courts is very strong and is not to be lightly ignored upon the application of disappointed litigants, seeking for diplomatic intervention. I t is not meant to say that a palpable denial of justice to citizens of one country in the courts of the other, may not in extreme cases, be made the subject of international demands. But the circumstances which may sanction diplomatic intervention as a matter of right in such cases, must be very cogent in order to overcome the presumption above referred to. This Department, moreover, entertains the opinion that something of an unusual character must have occurred to warrant even the use of the good offices or mere unofficial requests of our diplomatic representatives with foreign governments in behalf of American citizens, litigants in their courts. The bare fact of an adverse decision will not warrant it, and in all cases judicial remedies must be exhausted by appeal

D E N I A L OF J U S T I C E

269

or otherwise, before executive interference is asked. The difficulties which would exist in the way of any executive action in this country, for the correction of alleged delinquencies in the conduct of the judicial tribunals should always be bome in mind. These difficulties with us, proceed, it is true, from the fact that by the express provisions of our organic law, the independence of the judiciary and its freedom from executive interference is clearly established and carefully guarded. It may be that under other forms of government this judicial independence is not so completely established, yet cherished as it is with us, as one of the principal safeguards of constitutional liberty, we should be slow to prefer any demand, or even any unofficial request, to other governments, which may imply its non-recognition. 69

With the noticeable falling off in the number of demands for redress made by the United States through diplomatic channels, the attitude of the Mexican government toward diplomatic protection likewise underwent a modification. In place of the former rigid opposition to all diplomatic interposition, Mariscal showed an increasing tendency to receive complaints sympathetically and to do what he could to remove their causes. In several instances, the Mexican government even went so far as to make pecuniary amends for wrongs done to foreigners by government officials, although local remedies had not in fact been exhausted. 70 In one case, however, which involved an issue on which both nations were peculiarly sensitive — the crossing of the border by police officials in pursuit of fugitives — the two governments reverted to their former attitudes on the question of local remedies and engaged in a long and fruitless debate, ending in a deadlock. This deadlock was finally broken by submission of the case to arbitration, resulting in a victory for the Mexican viewpoint. The case was that of Oberlander and Messenger against Mexico for damages for unlawful arrest and mistreatment by Mexican police officials on both the Mexican and American sides of the border. It appears that Oberlander was a deputy sheriff of San Diego 69

Gresham to R y a n , N o . 945, April 26, 1893, M S . Inst. Mex., Vol. 23.

70

See, for example, the case of Pat Rose, in which a refund of taxes illegally

collected was made following diplomatic interposition, although local remedies had not been exhausted; E . C. Butler to Gresham, N o . 4 1 6 , J a n u a r y 29, 1895, M S . Desp. Mex., Vol. 1 2 5 .

D E N I A L OF J U S T I C E County, California, and that he resided near the Mexican border. It was alleged by the United States that, on May 20, 1892, Oberlander, while on his way home from some place on the Mexican side of the border, was ordered to halt by a Mexican policeman; that, fearing some evil was intended against him, he disregarded the order and fled across the line. He was pursued by the Mexican policeman, who captured him on the American side and forcibly took him back to Mexico. He was there imprisoned on a charge of having attempted to make an arrest on Mexican soil under an American warrant. The next day he made his escape and took refuge at the house of a Mr. Messenger about half a mile from the line on the American side. During the night a number of Mexicans crossed the border and took Oberlander by force from Mr. Messenger's house. He was again placed in jail and, according to the allegations of the United States, treated with the utmost cruelty. Three days later he was released by order of a local judge. Subsequently, on information furnished by Oberlander, the Mexicans who had arrested him were tried in Mexico on a criminal charge of kidnapping, but were finally acquitted on the ground that the evidence did not show that either arrest had in fact taken place on the American side of the border. Oberlander took no further steps to obtain redress in Mexico, but filed a claim for damages with the Department of State. Secretary Gresham instructed the American Legation to present the claim to the Mexican government and to express the expectation that a just and substantial indemnity would be paid. 71 The Mexican government, after investigating the claim, rejected it on the ground that, according to the decision of the Mexican court, the charge of kidnapping had not been established. However, the Department of State, after examining the record, concluded that the court had reached its decision on false testimony and insufficient proof, and instructed the Legation to inform the Mexican government that this " failure of justice " in the criminal proceedings in Mexico did not sustain the Mexican government in its refusal to make adequate indemnity. 72 In reply, the 71

Gresham to Butler, N o . 1 3 8 , November 25, 1 8 9 3 , M S . Inst. Mex., Vol. 2 3 .

72

Uhl to Butler, N o . 366, March 15, 1 8 9 5 , M S . Inst. Mex., Vol. 2 3 .

DENIAL OF JUSTICE

271

Mexican government insisted that, on the question whether the arrest of Oberlander had taken place on the Mexican or American side of the border, the decision of the Mexican court must be taken as final. T h i s conclusion, said Mariscal, was unanswerable, not only in accordance with the laws of Mexico, but also with the principles of international law which were recognized by all civilized nations. Mariscal added as follows: I b e l i e v e it is a well established legal precept in the United States that a g o v e r n m e n t m u s t not be held responsible in a n y case w h a t e v e r , with respect t o another g o v e r n m e n t , even w h e n error is alleged to h a v e taken place in a j u d i c i a l sentence that w o r k s t o the p r e j u d i c e of a s u b j e c t or citizen of the l a t t e r , if the complainant neglected t o procure, it being in his power to do so, the redress of the injustice w h i c h he is supposed to h a v e received, b e f o r e the court of last instance w h i c h could r e v o k e the sentence.

Secretary Olney denied, however, that the proceedings of the Mexican court could be held as final on the subject. Those proceedings, he said, were conducted by the Mexican government against Mexican citizens and Oberlander was not a party to them. Accordingly, the judgment of the court could not have any legal effect upon the right of indemnity presented by the United States. In a civil case, the judgment of a court might be admitted to be in general " conclusive upon the parties as to the issues involved in the suit, but no further." A judgment in a criminal case, however, could have no effect on an international claim. If Mariscal's position were accepted, the effect would be " t o make the criminal courts of a country the arbiters of international claims against that country." B y instituting criminal proceedings touching the subject matter of a claim and prosecuting these proceedings to an acquittal, the rights of the claimants could be determined ex parte. Secretary Olney accordingly renewed his demand that an indemnity be paid in this case by the Mexican government. 73 Mariscal, in his reply, insisted that the decision of the criminal court must be accepted as final on the question whether or not a wrong had been done to Oberlander, even though these proceedings had been conducted by the Mexican government. Ober73

Olney to Ransom, No. 127, November 30, 1895, MS. Inst. Mex., Vol. 24.

Italics in original.

D E N I A L OF

272

JUSTICE

lander, he said, could have demanded " the civil responsibility " in the same trial.

T h e fact that he had " abandoned the proceed-

ings to the sole action of the prosecuting attorney " and had not tried to obtain redress by a civil action for assault and damages showed that there was no reason to justify the recourse to diplomatic protection in this case.

It was a recognized principle, said

Mariscal, that a claimant against a foreign government who failed to make use of legal remedies open to him could not convert his demand into an international claim.

In support of this

view, Mariscal quoted several American Secretaries of State and also the Claims Commission of 1868.

H e accordingly declined to

consider the claim. 74 Secretary Mariscal.

Olney

refused to accept the position taken by

He asserted that, although a remedy by civil action

might have existed for Oberlander, the judicial proceedings that had taken place in the case were of such a character as to discourage the hope of obtaining justice by private suit and to justify the government of the United States in presenting the case diplomatically.

He expressed the belief that a suit for damages in the

courts of the community " where the influence of the defendants was dominant" would have failed of a fair hearing and substantial justice.

H e concluded that nothing seemed to be left open for

further discussion except the amount of indemnity to be paid. 75 The Mexican government, however, insisted that no indemnity was due in the case. After further discussion it was agreed by the two governments to submit the claim to arbitration.

T h e arbitrator chosen was

Senor Don Vicente G. Queseda, Argentine Minister at Madrid. His decision fully upheld the Mexican viewpoint.

H e dismissed

the claim on the ground that the claimant " did not bring the criminal and civil actions which he had a right to bring before the courts of the country, but had recourse to diplomacy without any good cause to do so."

In support of this position he referred

particularly to the position taken by the United States in refusing 74 Mariscal to Ransom, April 22, 1896, enclosure with Ransom to Olney, No. 136, April 29, 1896, MS. Desp. Mex., Vol. 128. 75 Olney to Ransom, No. 207, May 15, 1896, MS. Inst. Me*.. Vol. 24.

D E N I A L OF

JUSTICE

to p a y an indemnity in the case of the killing of a number of Chinese at Rock Springs, Wyoming, in 1885. 76 In this latter incident, Secretary Bayard had emphatically denied any legal liability of the United States on the ground that the provision of an organized forum for the administration of justice " excludes the idea of direct recourse by the alien to other means of obtaining justice or redress." 77 While this statement of the rule of local redress was obviously broad enough in its terms to include the Oberlander case, the practical problem involved in the Rock Springs incident was quite different. This problem will be discussed in the next chapter. 76 77

Foreign Relations of the United Stales, 1897, p. 387. Bayard to Cheng Tsao Ju, February 18, 1886, ibid., 1886, p. 158.

CHAPTER

IX

POLICE PROTECTION THE discussions outlined in the preceding chapter were concerned primarily with the question of the local administration of justice in Mexico. The only other subject of diplomatic protection that came in for extended discussion during the Diaz régime was the question of adequate police protection for the lives and property of Americans in Mexico against crimes or banditry. This subject of police protection had in fact been a frequent topic of discussion between the United States and Mexico ever since the beginning of the relations between the two countries. The extended periods of political disorder and revolution in Mexico had inevitably been accompanied by a considerable amount of local lawlessness and banditry. Perhaps the majority of claims presented by the United States had been based on injuries to Americans arising out of acts that were criminal in nature under the local Mexican laws and hence involved the question of police protection. T h e basis on which the United States had sought to hold the Mexican government internationally responsible for these injuries was either: i ) that there had been some culpable failure on the part of the police authorities to prevent the crime, or 2 ) that there had been a failure to prosecute the perpetrator of the crime in accordance with the local laws. 1 Diaz succeeded in establishing far more adequate police protection in Mexico than had any of his predecessors in office, and 1

T e x t writers customarily deal w i t h cases arising out of failure to prosecute

under the heading " denial

of justice," p r e s u m a b l y because this failure is o f t e n

attributable to the courts or the judicial authorities.

It should be noted, h o w e v e r ,

t h a t the function of the judicial authorities in these cases is primarily t h a t of prev e n t i n g crimes rather than of p r o v i d i n g redress to i n j u r e d individuals.

H e n c e it

seems preferable to regard a n y failure to fulfill this function as a failure of

the

police administration of the state rather than of its system of administering justice. T h e w o r d " police " is here u«ed t o include all g o v e r n m e n t a l agencies charged w i t h the prevention of crime and the enforcement of the criminal laws.

274

POLICE

PROTECTION

275

during most of his régime foreigners enjoyed an unusual amount of security. Nevertheless, in spite of his efforts in this direction, there were occasional instances of alleged failure of police protection resulting in injuries to American citizens, and these instances led to diplomatic discussions between the two countries. Before considering these discussions it will be well to look back for a moment at the decisions of the Claims Commissions of 1849 and 1868 on the subject of international responsibility for lawless acts committed against foreigners. In considering these decisions it should be remembered that there is an element present in the determination of responsibility by claims commissions that does not exist in diplomatic discussions, and that is the terms of the conventions under which the commissions operate. For example, the Board of 1849 was formed to consider " a l l claims of citizens of the United States against the Government of the Mexican Republic." 2 This Board displayed some reluctance in holding Mexico responsible for injuries originating in acts of minor officials or private individuals. T h e Commission of 1868 was formed to consider all claims of citizens of the respective countries upon the other government arising from injuries to their persons or property by " authorities " of that government. 3 This Commission was, on the whole, more readily inclined to grant awards for delinquencies of minor officials than was the Board of 1849.

D E C I S I O N S OF T H E B O A R D OF

1849

The general attitude of the Board of 1849 o n the question of police protection in times of disorder is indicated in its decision in the case of James Johnson. T h e claimant in this case had been engaged in 1839 in running a line of stages in Mexico, but had been compelled to abandon the business as a result of revolutionary conditions. In his memorial he made the specific allegation that General Santa Anna, being interested in another line of stages on the same route, had employed robbers and bandits to plunder the claimant's stagecoaches with a view to destroying his business. 2

Malloy, op. cit., Vol. I, p. 1120.

3

ibid., p. 1128.

Italics added.

276

POLICE

PROTECTION

He appears to have rested his claim on the ground that these bandits were in the pay of the Mexican government. T h e Commission dismissed the claim on the following ground: So grave a charge against the government of any country should be maintained by the most unquestionable proof. It should be alleged as a distinct fact and ground of reclamation and proved by evidence of the clearest character. The board find no sufficient ground for the allegation in this case. It is well known that during the frequent periods of civil commotion with which Mexico has been afflicted, violence, robbery, and crime of every description have fearfully abounded. A t such times of turbulence and disorder the laws are powerless to protcct individual rights, and property and life are at the disposal of the most profligate and abandoned. In many of the dispatches from the minister and consuls of the United States in Mexico this state of things is described; and the difficulty of transmitting letters through under the safe conduct of the government is stated. But it is nowhere suggested, so far as the board has the means of examining the public documents, that the Government of Mexico tolerated these scenes of disorder, much less that they set them on foot, or kept the scourges of their country in its pay. It is undoubtedly true that the memorialist sustained great losses by undertaking the business he was concerned in in Mexico; but they do not appear to have been occasioned by any act of the government, or for which the government was responsible.

T h e Board of 1849 took the same position in dismissing a claim for damage to property by a mob following a revolutionary attack on Mexico City in 1828 (claim of P. A. Lagueruene v. Mexico). On the subject of responsibility of the Mexican government for mob violence, the Commission stated as follows: The violence which the claimant says occasioned his loss was done, not by the authority or assent of the Mexican Government, but by a lawless mob, and were all other objections to the claimant's right removed it is difficult to conceive how the Mexican Government can be held liable for the consequences of the violence committed. Mobs and rioters are enemies of the public peace, and it is the duty of all peaceable citizens to assist in putting them down. It is the duty of a government to pass laws to punish individuals who commit acts of violence, but the government is not responsible for those acts. For personal injuries and injuries done to the property of an individual by a mob the laws are open for redress, and to such means of redress persons must look, and not to the government. It is not pretended that the government of Mexico refused redress through her laws.

POLICE

PROTECTION

277

T h e real reason, however, for disallowing this claim appears to have been the fact that the claimant did not have actual title to the property destroyed but merely a lien against it to recover the purchase price. In another claim arising out of the same incident (Nicolas Ricardi v. Mexico), the Commissioners granted an award for the value of the property destroyed by the mob. In this case the claimant had actually been the owner of the property destroyed. T h e only reason advanced by the Commissioners for holding the Mexican government responsible for damages caused by the mob in this case was the following: There is some reason to suppose that Mexico admitted her responsibility to indemnify those who lost goods by the outrage before alluded to, though the evidence on this point is by no means conclusive. Under this uncertainty, however, it may be more in accordance with equity to allow the claimant the benefit of such doubt.

Apparently the only evidence of this assumed admission of liability by the Mexican government was the fact that the claimant had, in 1845, instituted an inquiry before a local judge to prove his losses. It does not appear, however, that the Mexican government had made any move to compensate the claimant for the losses so established. Apparently the Commissioners felt more sympathetic with Ricardi who had lost his own property in the uprising than with Lagueruene who had merely lost a chance to collect the purchase price of goods he had sold to Mexicans. T h e attitude of the Board of 1849 on the question of responsibility for acts of minor officials is illustrated in the three claims filed by John Bensley, an American circus proprietor, against the Mexican government for interference with his circus business by the local authorities. One of these claims was based on the alleged forceful seizure and detention by a Mexican alcalde of nine mules and two servants attached to the circus. The Board denied this claim on the ground that there was no allegation that the acts complained of " were perpetrated by any officer or persons in the employment or under the control of the Mexican government, or for whose proceedings that government was or ought to be responsible." T h e Board held that the injury complained of had

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been inflicted by a municipal officer of the village of Dolores, against whom redress might have been had before the judicial tribunals of the country. Bensley's other two claims arose out of the seizure and detention of two apprentices attached to the circus, the first being made on orders of a municipal prefect and the second by the Governor of the state of San Luis Potosi. T h e Commissioners dismissed both of these claims on the ground that the Mexican government was not responsible for the acts of the officials concerned. In the first claim, the Commissioners asserted that " it would be an extraordinary position to assume under the law of nations that a government is liable to afford an indemnity for every injury which may result from the illegal or irregular acts of any of its subordinate municipal officers." In the second case, the Board stated that it could not " regard the Government of Mexico as liable to a claim for indemnity on account of the wanton or malicious trespass of the person holding the office of governor of one of the States constituting the confederacy." T h e Board added that " it might with the same propriety be claimed that the government was liable for every trespass committed by a private citizen." Where the acts complained of were perpetrated by Mexican soldiers in command of officers, however, the Board of 1849 held the Mexican government liable. In the case of T e r r y and Angus v. Mexico, the Board granted an award for the value of property destroyed by a body of Mexican soldiers because there was " good reason to believe that this outrage was perpetrated b y the order of General R e a . " Another claim based on the seizure of property by Mexican troops was dismissed by the Board because it was not shown b y the claimant that the property had been taken " by order of an officer in command of a detachment of the army for the public service." D E C I S I O N S OF T H E COMMISSION OF

1868

A greater lack of uniformity is found in the reasons given b y the Commission of 1868 for its decisions on claims falling within the general field of police protection.

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279

In the case of the heirs of H . A . Dorris v. Mexico, Docket N o . 695, Umpire Lieber declined to hold the Mexican government responsible for the death of an American citizen who had been killed by a Mexican soldier following a street brawl.

T h e claim

was based partly on the ground that the perpetrator of the crime had been a Mexican soldier and partly because no one had been arrested and punished for the crime.

On the first point, Umpire

Lieber held that, according to the Convention of 1868, it was necessary to show that the wrong complained of had been committed " by an authority of the G o v e r n m e n t " acting as an authority.

He held that, although the crime might have been com-

mitted by a Mexican soldier in uniform, it was done in his capacity as a private individual and not as an authority of the Mexican government.

On the question of the failure of the Mexican gov-

ernment to prosecute the criminal in this case, Umpire Lieber held that such a delinquency could not be made the basis of a pecuniary claim.

H e added that

the L a w of Nations acknowledges the right of a government to insist on the penal prosecution of offenders having committed crimes against its own citizens or subjects living in the country of the criminals, and the L a w of Nations admits of the right of resorting to reprisals and retorsions, in cases of persevering denial of justice, [but he held that all such cases] belong to the authorities directing the international conduct of the two governments,

and the Commission could not take cognizance of a complaint of this nature.

T h e Mexican Commissioner, Palacio, took the same

attitude on this question in his opinion, and asserted further that a failure to prosecute criminals could not be measured in pecuniary damages. Umpire Thornton took a different view of the subject in the frequently cited Glenn case (Margaret Glenn v. Mexico, Docket No. 6 2 ) , arising out of the murder of two American citizens and the robbery of their personal property.

It was not charged in

this claim that the Mexican police could have prevented the crime, but that they had not been diligent in prosecuting the criminals. Umpire Thornton decided that there had been a " denial of justice " in the failure to bring to trial those who had committed the

28o

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crime, " b y which means their guilt or innocence might have been established." He accordingly made an award of $20,000 as compensation to the claimants for the injuries sustained by them as a result of the crime. He gave no reason for holding that the measure of damages for failure to prosecute the criminals in this case was the actual losses resulting from the crime itself. Likewise in the case of the heirs of Cyrus W . Donoughho v. Mexico, Docket No. 703, Umpire Thornton made an award of $12,000 for the killing of Donoughho by a mob headed by a Mexican alcalde. Thornton based his award on the ground that the killing of Donoughho had been " entirely due to the improper conduct of the authorities on the occasion." Awards were also made in two other cases arising out of the same incident (Alexander H. Dixon v. Mexico, Docket No. 730, and George Buxton v. Mexico, Docket No. 7 3 1 ) , but not in the claim of the Rosario and Carmen Mining Company Docket No. 729, the employer of the persons attacked by the mob. This company had alleged that, as a result of the attack and the subsequent lack of police protection, it had been unable to continue mining operations in Mexico. Thornton held, however, that the violence of the mob had not been directed against the company, nor had there been any general antipathy to the company on the part of the authorities or the people. There was no evidence, he said, to show that if the company had sent other employees to operate the mines, they would have been interfered with by the local authorities. Thornton's decision in this case seems to have been based primarily on the fact that, after the attack had been made on the company's employees, the directors of the company at San Francisco had apparently taken no measures for the safety of the property or the continuance of the work of the mines. In the case of L a Abra Silver Mining Company v. Mexico, Docket No. 489, Umpire Thornton made an award totalling $458,791.06 plus interest for various losses arising out of the failure of the local police authorities to furnish appropriate protection to the claimants and their property. Umpire Thornton based the award in this case on the ground that the Mexican government had encouraged foreigners to bring their capital into

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281

the country and was accordingly bound to compensate the claimants for the losses which they had suffered through the misconduct of the local authorities. This claim was subsequently found to be fraudulent, and the payments made under the award were eventually refunded to the Mexican government. In the case of William W. Light v. Mexico, Docket No. 9 1 2 , Umpire Thornton declined to hold Mexico responsible for an attack alleged to have been made by fourteen Mexicans on a mine belonging to the claimant, on the ground that there was no proof whatever that the criminals had been in any way connected with, countenanced, or instigated by the Mexican authorities, or that the latter did not endeavor to discover and arrest the culprits." Commissioner Zamacona maintained in this case that there could be no basis for the claims unless it could be shown that the fourteen robbers were actually authorities of the Mexican Republic. Both national Commissioners attempted at times to define in general terms the extent of a nation's duty to afford police protection to foreigners. Thus Commissioner Wadsworth, speaking for the Commission in the case of William W. Mills v. Mexico, Docket No. 378, stated the rule of responsibility as follows: A citizen of the United States entering the territory of Mexico, is bound to respect and obey the laws of that country, and so long as he does this at least, he is entitled to protection to his person and property from the authorities of Mexico. He is entitled not only to freedom from injury, but to the execution of justice according to these laws under whose sway he has voluntarily placed himself. . . . Conceding this, it cannot be claimed that the Republic of Mexico, has guaranteed the safety of the citizens of the United States, within her borders, in every case, and under all circumstances. We think the most that can be claimed where the injury happens not by the direct action, or by the connivance of the authorities, or the wrongful act is not after the f a c t assumed or justified by them, is the discharge b y Mexico of her obligations as a nation, and the enforcement of her laws, with reasonable vigor and promptness to prevent violence when practicable or failing in that, to punish the offenders, criminally, and to indemnify the injured party by her remedial civil justice. I t is only, it seems to us, when there has been some plain violation of duty in these particulars of international or treaty obligations, that diplo-

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matic interference may be properly invoked, and the affair assume a national importance. Tested by this perhaps imperfect definition of the rights of citizens of the United States temporarily resident in Mexico, and of the obligations of that Republic to them, we have been wholly unable to perceive from the testimony in this case, any culpable neglect on the part of Mexico, to prevent the outrage on Mr. Mills, or afterwards to punish the wrongdoers, or redress the injuries of the sufferer.

Commissioner Palacio, in the case of Salvador Pratz v. T h e United States, Docket No. 748, expressed his version of the rule as follows: It being thus ascertained that the duty of protection on the part of the government, either by the general principles of international law or by the especial agreements of the treaties, only goes as far as permitted by possibility, the following question arises: What is the degree of diligence required for the due performance of this duty? And the answer will be very obvious — that diligence must be such as to render impossible any other, better or more careful and attentive, so as not to omit anything, practical or possible, which ought to have been done in the case. Possibility is, indeed, the last limit of all the human obligations: the most stringent and inviolable ones can not be extended to more. . . . T h e same truth will be expressed in a more practical language by saying that the extent of the duties is to be commensurate with the extent of the means for performing the same, and that he who has employed all the means within his reach has perfectly fulfilled his duty, irrespective of the material result of his efforts. T o ask of him some other thing, would be the same as to pretend an action ultra posse, which is positively an absurdity.

As a general rule, the Umpire did not inquire into the question whether the Mexican government could or could not have prevented the acts complained of by using the means at its disposal. Occasionally, however, the question of the means at hand was made the test of liability, rather than any external standard of police protection. Thus, in the case of Juan A. Robinson v. Mexico, Docket No. 709, a claim arising out of the alleged robbery of property from an American citizen by a band of Indians was dismissed by Umpire Thornton on the ground that " it would be almost impossible for any Government to prevent such acts by omnipresence of its forces." There was some evidence in this

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case that Mexican troops had in fact pursued the Indians committing the robbery, and the claimant asserted that some of the property had been recovered and appropriated by the troops. However, Thornton held that this charge was not established b y the evidence. On the question of responsibility for acts of soldiers, the Commission of 1 8 6 8 appeared to follow the general rule announced b y the Board of 1 8 4 9 , that responsibility existed only in cases where the crimes were committed b y soldiers in command of officers. In the case of Mildred Standish v. Mexico, Docket N o . 3 8 5 , Umpire Thornton awarded $40,000 for the killing of an American citizen by Mexican soldiers, because it appeared that the act had been committed by the order of a Mexican officer.

Strangely

enough, Thornton appears to have held in this case that the question whether the act resulting in the injury was itself wrongful or not had no bearing on the question of responsibility.

The

killing of Standish and his companions took place during the French intervention, and it was alleged in defense that the attack on them had been made in the belief that they belonged to the Imperialist forces.

Thornton did not go into this question, but

held that the act having been committed by Mexican soldiers under the direction of Mexican officers, " whether with evil intent or not," the families of the victims should be compensated by the Mexican government for the losses which they sustained.

Similar

awards were made in the case of M a r y Ann Conrow v. Mexico, Docket No. 3 9 2 , and S. K e a r n y Parsons v. Mexico, Docket N o . 3 9 7 , arising out of the same incident. Likewise in the claim of Cyrus W . Lander and Melvin B . Lander v. Mexico, Docket N o . 603, Umpire Thornton made an award for the seizure of property belonging to the claimants b y troops commanded by Mexican officers, and also for the arrest and detention of one of the claimants by the same forces.

There could

be no doubt, said Thornton, that the acts complained of " were committed with the cognizance and under the orders of Mexican officers and authorities," and he accordingly granted an award without going into the question whether the acts had in themselves been wrongful or not.

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In the claim of William C. Tripler v. Mexico, Docket No. 144, Thornton dismissed a claim for property stolen and destroyed b y Mexican troops because it was not " clearly shown b y whom the acts were committed, or that they were done by order or in presence of an officer or officers." Thornton added that if the acts had been committed by soldiers only, " without the order or presence of an officer," the Mexican government could not be called upon to make compensation. This, said Thornton, was " one of the unfortunate consequences of choosing to live in a country where revolutions and disturbances are so frequent." Likewise in the case of John Dennis v. Mexico, Docket No. 291, and in a number of other cases, Umpire Thornton dismissed claims based on acts of soldiers who were not shown to have been at the time under the command of a superior officer. 4 In disposing of the cases falling within the general subject of police protection, the only specific rule that the Commissions of 1849 and 1868 applied with any degree of consistency was that fixing the responsibility of the state for injuries resulting from acts committed by soldiers under the command or in the presence of officers. Y e t it appears on examination that even this rule does not in fact reveal the factors primarily responsible for the decisions ascribed to it, since it leaves open the question whether the acts themselves were of such a nature as to entail international responsibility, regardless of whether officers were present or not. T o be sure, in the Standish, Conrow and Parsons cases mentioned above, Umpire Thornton seemed to infer that any act of soldiers in command of officers that resulted in injury to a foreigner gave rise to international responsibility, but such a rule is not supported by the other decisions of the Commission.

SUBSEQUENT

DIPLOMATIC

DISCUSSIONS

T h e subsequent diplomatic exchanges between Washington and Mexico City on the theoretical basis of responsibility for failure of police protection, display even more confusion on the 4

2997.

For a list of cases see Moore, International

Arbitrations,

V o l . I l l , pp. 2996-

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285

subject than the decisions of the two claims commissions. From time to time, the Department of State endeavored to collect indemnity from the Mexican government for injuries to American citizens in Mexico resulting from lack of adequate police protection, but its efforts along this line were greatly embarrassed by the necessity of defending the United States against similar claims brought by other governments for crimes against foreigners in the United States. In several instances the United States did succeed in obtaining compensation from Mexico for the murder of American citizens, but such compensation was usually made as a matter of grace rather than legal liability, in accordance with the practice adopted by the United States in such cases. While Foster was Minister at Mexico City, a number of attacks upon American Protestant missionaries and their congregations occurred in various places in Mexico. These caused Foster to warn the Mexican government that, unless more rigorous measures for police protection of American missionaries were taken, " grave international difficulties " might result. In reply to the Mexican government's plea that it had done all it could in these cases, Foster stated that it was not for him to suggest in what manner the central government might best exert its influence with the local authorities, but that he was compelled to demand most imperatively that an effective remedy be found. 5 In a later note, Foster informed Lafragua that American lives and property were exposed to the fury of fanatical mobs in certain places, and that it was for the Mexican government to decide " whether Mexico or the United States would protect them." 6 A t the same time, Foster demanded an indemnity for the family of one of the American missionaries who had been murdered. 7 Secretary Fish approved of the prompt and energetic measures taken by Foster in these cases, but expressed grave doubt that the United States could require pecuniary compensation in such cases. On this question, he wrote to Foster as follows: 5 6 7

Foster to Fish, No. 237, January 31, 1875, MS. Desp. Hex., Vol. 53. Foster to Fish, No. 243, February 15, 1875, MS. Desp. Mex., Vol. 53. Foster to Fish, No. 241, February 9, 1875, MS. Desp. Mex., Vol. 53.

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Governments are not usually accountable in pecuniary damages for homicides by individuals. All that can fairly be expected of them is that they should in good faith, to the extent of their power, prosecute the offenders according to law. 8

Secretary Fish's attitude on the question of indemnity was doubtless affected by the fact that he had just received from the Mexican Minister at Washington a request for pecuniary compensation arising out of the lynching of seven Mexican shepherds in Texas in 1873. The Mexican government complained that no serious effort had been made by the local American officials to investigate the crime and punish the perpetrators thereof. This request for indemnity was received on January 30, 1875, and on February 19, Secretary Fish replied that the government of the United States was not answerable in pecuniary damages for the murder of individuals by other individuals within its jurisdiction. H e admitted that it was the duty of the government to prosecute such offenders according to law by all the means in its power, but he took the position that the United States had done all it could along this line and hence its obligation in the matter was discharged, even though no one had actually been punished for the crime. 9 A few days later Foster's despatch was received stating that he had demanded an indemnity in the case of the murdered missionary, and it is accordingly not surprising that Secretary Fish should have disapproved of this demand, since the facts in the two cases were very similar. After Secretary Fish had announced this position on the matter of pecuniary liability for failure of police protection, the Department of State refrained for several years from making any similar demands. In 1880, however, the murder of three American citizens by a mob in which Mexican soldiers participated, led Secretary Evarts to bring a demand for indemnity. These three American citizens, Youmans, Connelly, and Arnold, were engaged in an engineering project at Angangueo, in the state of Michoacan, Mexico. It appears that Connelly became involved in a dis8

Fish to Foster, N o . 192, F e b r u a r y 23, 1875, M S . Inst. M e x . , V o l . 1 9 .

9

Fish to Mariscal, F e b r u a r y 19, 1875, Foreign

1875, V o l . I I , p. 973.

Relations

of the United

States,

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287

pute with a Mexican laborer and ejected him from the house in which Connelly, Youmans, and Arnold were staying. T h e laborer and some companions attempted to break into the house, and Connelly fired at the laborer with a shotgun and wounded him in the legs. Soon the house was surrounded b y a threatening mob of Mexicans. Connelly endeavored to surrender to the local authorities, but was driven back into the house by the mob. His employer then requested the mayor of the town to provide protection to the Americans in the house. T h e mayor, being unable to quiet the mob, ordered an officer of the state troops to proceed with soldiers to quell the riot. T h e troops, on arriving at the scene of the riot, instead of dispersing the mob, opened fire on the house, as a consequence of which Arnold was killed. T h e mob then set fire to the house, and Connelly and Youmans were forced to leave. As they did so they were killed by the troops and members of the mob. T h e next day federal troops arrived and established order. President D i a z directed the Governor of the state to take all possible measures to punish the persons responsible for the murders. Court action was subsequently instituted against about twenty-nine people, of which number eighteen were arrested. Most of these were released on nominal bail and were not subsequently apprehended. Five persons were condemned to capital punishment, but of this number one had already died and the remaining four left town before they could be arrested. It appears that no one was actually punished for the crime. 10 When the case was first reported to the Department of State, Secretary Evarts instructed the American Legation to express to the Mexican government the confident expectation that nothing would be omitted toward bringing the offenders to the strictest justice according to law. 11 Subsequently the families of the three murdered men each filed a claim of $50,000 damages with the Department of State, and Acting Secretary Hunter instructed Morgan to present the claims to the Mexican government. In 10

See Opinions of Commissioners under the C o n v e n t i o n of September 8, 1923,

Opinion in the case of T h o m a s H . Y o u m a n s v . M e x i c o , D o c k e t N o . 2 7 1 ; 0/ Commissioners, 11

V o l . I , p. 150.

E v a r t s to M o r g a n , N o . 8, April 20, 1880, M S . Inst. Mex., V o l . 20.

Opinions

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doing so, Hunter took the position that, under the plainest principles of international law, the participation of the soldiers in the crime rendered the government in whose service they were employed justly liable to the government of the murdered men. 12 T h e Mexican government, however, denied all liability with respect to the claims. Mariscal asserted that there had been no lack of diligence on the part of the Mexican government in protecting the murdered men, and furthermore insisted that the United States could not intervene in the matter because the murdered men had not been matriculated in accordance with the Mexican laws. 13 Upon the receipt of this note, the Department of State decided to drop the claims. Acting Secretary Davis wrote to Morgan that, while the United States felt justly disappointed in the conclusion reached by the Mexican government, " a conclusion which it cannot consider justified by the facts," it did not deem it advisable to press the subject further at that time. 14 While no reasons were given by the Department of State for abandoning the claims, it is probable that this action was due to the fact that the United States was at that time endeavoring to defend itself against claims for indemnity brought by both Great Britain and China as a result of crimes committed against nationals of those countries in the United States. It may also have been due to the fact that the Department of State was not disposed to make an issue of the question of matriculation at that time. At any rate, nothing more was done in the matter until the formation of the General Claims Commission under the Convention of September 8, 1923. Complaints were filed before that Commission on behalf of the heirs of the murdered men, in amount of $50,000 in each case. On November 23, 1926, the Commission rendered an award of $20,000 in the Youmans case and of $18,000 Hunter to Morgan, No. :88, November 4, 1881, MS. Inst. Mex., Vol. 20. Mariscal to Morgan, M a y 15, 1882, enclosure with Morgan to Frelinghuysen, M a y 27, 1882, M S . Desp. Mex., Vol. 76. 1 4 Davis to Morgan, No. 315, September 4, 1882, M S . Inst. Mex., Vol. 20. Davis added the reservation that this action should not be construed as an acquiescence in the position of the Mexican Government on the subject of the matriculation requirement. 12

13

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in the Connelly case. T h e basis of these awards, as stated in the opinion in the Youmans case, was that the record showed " a lack of diligence in the punishment of the persons implicated in the crime." On this point the Commission stated that " it cannot properly be said that adequate protection is afforded to foreigners in a case in which the proper agencies of the law to afford protection participate in murder." T h e Mexican government had raised the defense that a state could not be held responsible for illegal acts of officials outside the scope of their competency, but the Commission rejected this defense on the ground that, if such a rule were followed, " no wrongful acts committed by an official could be considered as acts for which his Government could be held liable." T h e Commission expressed the view that soldiers inflicting personal injuries, or committing wanton destruction, or looting always acted in disobedience of some rules laid down by superior authority, and that " there could be no liability whatever for such misdeeds if the view were taken that any acts committed by soldiers in contravention of instructions must always be considered as personal acts." 15 After dropping the claims for indemnity in the Youmans, Connelly, and Arnold cases, the Department of State again refrained from presenting any similar demands until the murder of an American citizen named Leon Baldwin in 1887 by bandits in the state of Durango. This incident became the subject of a long and elaborately argued correspondence between the two governments extending over a period of six years and resulting finally in the payment by the Mexican government of the sum of $20,000 to Mr. Baldwin's widow as a matter of grace. It appears that Mr. Baldwin, who was the superintendent of a mine at Ventanas in the state of Durango, was shot and killed on August 19, 1887, by two well-known outlaws who had previously committed a series of crimes in that district. It was alleged by Secretary Bayard that, although robbery, kidnapping, and homicide had frequently occurred in the vicinity of Ventanas, nothing whatever had been done by the Mexican government to render life and property secure. Subsequent to Mr. Baldwin's death, steps 15 Opinions of Commissioners, op. tit., pp. 150-159.

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had been taken by the local population which resulted in the dispersion of the band of outlaws principally concerned in the crimes. Five bandits had been killed, including the two who were concerned in the murder of Baldwin. Secretary Bayard based his demand for redress on the ground that there was nothing in the evidence before the Department of State to show any serious attempt on the part of the Mexican government to restore order or to protect life or property in the district where the murder had taken place. H e also asserted that hatred of American citizens in general seemed to have actuated the criminals, and that in this feeling they had had the sympathy and active support of a large part of the native population. Bayard referred to the fact that the Mexican government, " in pursuance of a policy of wise development of her material interests," had by numerous legislative acts and executive decrees invited foreign capitalists, miners and business men to develop the resources of Mexico. He asserted that, while it was of the utmost importance to Mexico that the foreigners attracted within her borders should be industrious, thrifty and law-abiding citizens, it was no less evident that foreigners of this type would not risk their persons or their property where they could not feel assured that reasonable efforts would be made to extend the proper protection to them. On the contrary, the conditions that had existed at Ventanas indicated " an indifference amounting almost to an acquiescence in continued wrong-doing, which would constitute a condition of affairs for which responsibility may justly be said to rest with the Government of Mexico." T h e death of Baldwin resulted, he said, from the withholding by Mexico of the protection promised by and due from that government to foreigners within its borders. 16 In presenting the claim to the Mexican government, Bragg added a detailed account of the series of crimes that had preceded the death of Baldwin and likewise developed the legal argument in somewhat greater detail than Bayard had done in his instructions. Bragg placed the claim for indemnity on the ground, among others, that international responsibility always resulted from the neglect or inability of a state to control the conduct of its sub16

B a y a r d to B r a g g , N o . 8, M a r c h i s , 1888, M S . Inst. M c x . , V o l . 22.

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jects which resulted in an injury to a foreigner, especially where no local remedy was provided.

He asserted that his government

rested its case " upon the ability to show negligence on the part of the State of Durango, or of the Central Government of the R e public of Mexico, — or on the part of both governments, to that extent which creates liability within the rules stated, and which resulted in the death of Leon Baldwin."

17

When Secretary B a y a r d received a copy of this note he became uneasy over the legal arguments advanced by Bragg to support the claim for indemnity and promptly instructed Bragg that the note should be withdrawn.

H e wrote Bragg that the instruction

originally sent to him had been the subject of careful and diligent preparation by the Department of State in the expectation that it would be presented to the Mexican government without alteration.

He informed Bragg that as claims of generally similar char-

acter had been preferred against the United States, and had been denied, it was necessary, in presenting the Baldwin claim, that " no limitation laid down b y the United States as to responsibility in any claim for indemnity, should be transcended by our present demands."

Bayard accordingly instructed Bragg to substitute for

his own note an exact copy of the original instruction sent to him. 1 8 T h e claims against the United States to which Bayard referred were the well-known Tunstall case presented by Great Britain and the claims growing out of the Chinese riots in Colorado and Wyoming.

A brief reference to these cases will indicate the rea-

sons for Bayard's uneasiness over the position advanced by Bragg as to the legal liability of Mexico to pay an indemnity in the Baldwin case. Tunstall, a British subject, was killed in the Territory of N e w Mexico in 1 8 7 8 by a deputy sheriff and his party in the course of attempting to levy an attachment on certain property belonging to Tunstall's partner.

It was alleged that the killing of Tunstall

was unprovoked and that it was due to the fact that the sheriff 17 Bragg to Mariscal, May i , 1888, enclosure with Bragg to Bayard, No. 34, May 2, 1888, MS. Desp. Mex., Vol. 95. 18 Bayard to Bragg, No. 55, M a y 23, 1888, MS. Inst. Mex., Vol. 22.

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and his party were at personal enmity with Tunstall. crime no one was punished.

For this

T h e British government subsequently

presented a claim against the United States on the ground that the police officials of N e w Mexico were accountable for the murder, which was committed in the execution of legal process.

The

Department of State denied all liability in the matter on the ground that the punishment of crimes was within the jurisdiction of the local officials, free from any control or interference by the federal government.

T h e British government continued to press

the claim, and in 1 8 8 5 , Secretary B a y a r d wrote a very long note to the British Minister, setting forth in detail the legal arguments on which the government of the United States sought to avoid responsibility.

Among the propositions advanced by B a y a r d was

the principle that " in countries subject to the English common law, where there is the opportunity given of a prompt trial b y a jury of the vicinage, damages inflicted on foreigners on the soil of such countries must be redressed through the instrumentality of courts of justice, and are not the subject of diplomatic intervention by the sovereign of the injured p a r t y . "

T h e reasons

B a y a r d gave for limiting this principle to countries subject to English common law were, first, that in such countries the person injured had the advantage of a prompt trial by an impartial jury under the supervision of judges whose integrity, viewing them as a body, had never been impeached, and who were subject to established and impartial rules of law; and second, that by the English common law, foreigners appealing to courts of justice had equal rights with natives.

This last condition, said Bayard, was not

found in other systems of jurisprudence, and it was natural, therefore, " that under such other systems of jurisprudence the appeal of a foreigner for compensation should lie, not to the courts which impose upon him unjust discriminations, but through his own sovereign to the sovereign of the country in which the injury has been received." 19

19

B a y a r d insisted that the killing of Tunstall

It is scarcely necessary to point out that B a y a r d ' s implication that the English common law countries were ahead of civil law countries on this subject was inaccurate. As a matter of fact, Americans in Mexico had greater privileges in suing the Mexican government for injuries than a Mexican citizen had in a like case in the United States.

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293

had been a personal tort and not an act of the government, and hence the United States could not be held responsible for it.

He

further argued that Tunstall had been domiciled in N e w Mexico and was therefore " not even, as far as concerns the administration of the judicial function there, a foreigner, and, on this issue alone, his representatives cannot appeal to the Government of his established domicile through a foreign sovereign for redress."

20

A somewhat similar position had been assumed by the Department of State in denying legal liability to pay compensation in the cases growing out of attacks on Chinese residents at Rock Springs, Wyoming, and elsewhere in the United States a few years previously.

T h e first of these attacks had occurred at Denver, Colo-

rado, in 1 8 8 0 .

In rejecting the claim for indemnity filed by the

Chinese Minister, Secretary E v a r t s asserted that the local authorities had used all means at their command for the suppression of the disorder, and that, under the circumstances, the United States was under no obligation to p a y an indemnity.

H e stated

that whatever remedy might be afforded to the citizens of Colorado for losses resulting from the same occurrence were equally open to the Chinese residents who had suffered from the lawlessness of the mob, and added that " this is all that the principles of international law and the usages of national comity demand."

21

In 1 8 8 5 , an attack was made on Chinese residents at R o c k Springs, Wyoming, b y a band of armed men.

Twenty-eight

Chinese were killed and fifteen wounded, and a large amount of property of the Chinese colony was taken or destroyed.

The

Chinese government filed a claim for indemnity, based largely on the ground that the civil authorities had made no attempt to prevent or suppress the riot and that they had afterwards failed to take appropriate steps to punish the offenders.

Secretary B a y a r d

denied all liability on the part of the United States government in the matter.

He asserted that the riot had occurred at a place

remote from any center of population and " marked by all the customary features of a newly and scantily settled locality," and 20 Bayard to West, June i, 1885, Foreign Relations oj the United 1885, pp. 449-459. 21 Evarts to Chen Lan Pin, December 30, 1880, ibid., 1881, p. 319.

States,

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that violent assaults and homicides were very frequent in all newly settled countries. T h e claimants, he said, should seek their remedies before the local courts." " T h e provision of an organized and in some cases privileged forum excludes the idea of direct recourse by the alien to other means of obtaining justice or redress." He emphatically denied all liability to indemnify foreigners " for loss growing out of violation of our public law," and declared that " justice and equal opportunity is given to all who suffer wrong to seek reparation through the channels of justice as conducted b y the judicial branch of our Government." In conclusion, Bayard stated that " in view of the gross and shameful failure of the police authorities at R o c k Springs, in Wyoming Territory, to keep the peace, or even to attempt to keep the peace, or to make proper efforts to uphold the law, or punish the criminals, or make compensation for the loss of property pillaged or destroyed," Congress might take under consideration the possibility of making ex gratia a grant of pecuniary relief to the sufferers to the extent of the value of the property " of which they were so outrageously deprived, to the grave discredit of republican institutions." 23 Congress subsequently authorized the payment of the sum of $147,748.74 to the Chinese government, " in consideration of the losses unhappily sustained b y certain Chinese subjects by mob violence at Rock Springs, in the Territory of Wyoming, September 2, 1885." N o reservation was made in this act on the question of legal liability. Other acts of violence took place against the Chinese shortly afterward in other parts of the United States, and Congress likewise authorized the payment of compensation in these cases by act of October 19, 1888, but in this instance the payment was made " out of humane consideration and without reference to the question of liability therefor." -* In calling Bragg's attention to the Tunstall case and the Chinese cases, Secretary B a y a r d said that the principle of nonliability involved in those cases was " profoundly important and 2 2 Of course Bayard knew as well as the Chinese government that such a resort to local remedies would not have brought any relief in fact. 2 3 Bayard to Cheng Tsao Ju, February 18, 1886, ibid., 1886, p. 158. 24

Ibid., 1889, pp. 116-118.

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295

far reaching in its application in this era of free and general intercourse among the nations of the earth." He concluded with the statement that " we cannot afford to become claimants, where we would reject claims presented against us on like grounds and it is essential for our support of just claims that we should abstain from pressing those which, in principle, we have rejected." 25 Bragg was unable to see that his presentation of the Baldwin case contained any assertion of liability in principle that had not been expressed or implied in the instructions sent to him on the matter by Secretary Bayard. He complained to the Department of State that in these instructions there had been " an entire omission to state any clear and distinct proposition of law governing the case," but that the legal doctrine on which liability was sought to be based was left to be inferred from the statement of facts. 28 Bragg nevertheless withdrew his note as instructed and substituted Bayard's original instruction. T h e Mexican government firmly denied all liability to make compensation for the death of Baldwin. This denial was based on the general principle that a government was not liable to foreigners " for crimes and depredations committed by bands of insurrectionists or evildoers, in pronounced rebellion against the authority of that Government." Mariscal asserted that there had been no neglect or carelessness on the part of the Mexican authorities in the Baldwin case. He cited numerous cases in which the government of the United States had denied liability for injuries to foreigners on similar grounds, and added that under the circumstances the Department of State should not be surprised to learn that the Mexican government found itself incapable of acceding to the wishes of Mrs. Baldwin for an indemnity. He concluded as follows: W h i l e it is true that M e x i c o has invited immigration f r o m a b r o a d and does receive with open arms e v e r y

one w h o

brings hither the

energy

or the

Bayard to Bragg, No. 55, M a y 23, 1888, M S . Inst. Mex., Vol. 22. Bragg to Bayard, No. 61, June 2, 1888, MS. Desp. Mex., Vol. 96. There appears on the margin of this despatch a notation by some State Department official that " This was intentional for it is difficult and dangerous to lay down a distinct rule of law in such matters." £5

28

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capital it stands in need of, it cannot guarantee the lives and property of foreigners b e y o n d all hazard, nor does it consider itself held to impart thereto a greater degree of protection, or one of more efficacy, than is vouchsafed to the citizens of this country, in view of the conditions of time and place w h i c h surround them. 2 7

In response to Mariscal's note, Secretary Blaine (who had in the meantime succeeded Bayard) entered into a detailed consideration of the facts of the case in an effort to show that the Mexican officials had been guilty of negligence in failing to prevent the crime. Regarding Mariscal's assertion that the Mexican government was under no obligation to provide any greater degree of police protection for foreigners than for natives, Secretary Blaine made the following frequently quoted statement: T o sustain this denial of redress, M r . Mariscal has invoked the familiar rule that the measure of protection and of privilege to which

foreigners

residing in a country are entitled is that which the Government of country accords to its own citizens. undoubtedly

acceptable;

the

A s a general proposition, this rule is

but its applicability

is b y

no means

universal.

Where the question to be determined is the measure of private rights and remedies under the municipal law, the rule above stated m a y , with certain well-settled exceptions, readily be adopted.

B u t where a Government as-

serts that its citizens in a foreign country have not been duly protected, i t is not competent for the G o v e r n m e n t of that country to answer that it has not protected its own citizens, and thus to m a k e the failure to perform one duty, the excuse for the neglect of another.

I t is true that in this w a y

foreigners m a y e n j o y an advantage o v e r the citizens of a country. however, is not a matter f o r foreign governments to consider.

This,

T h e y have

no power to regulate the relations of another G o v e r n m e n t to its citizens; nevertheless, they are bound to ask that their own m a y be protected.

In answer to Mariscal's statement that the claimants should pursue their local remedies before resorting to diplomatic protection, Secretary Blaine replied that, as a general proposition this rule might be accepted as true, but it was obviously applicable " only where adequate judicial remedies exist for the redress of the grievance complained of." In the Baldwin case no such remedies had been alleged to exist, and the subject matter of the complaint was not, he said, one of judicial cognizance. He added 2 7 Mariscal to Ryan, January 21, i8go, enclosure with Ryan to Blaine, No. 219, January 24, 1890, MS. Desp. Mex., Vol. 102.

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that where the question presented was whether the government of a country had discharged its duty in rendering protection to the citizens of another nation, it could not be conceded that that government was to be the judge of its own conduct.28 In a lengthy reply, Señor Mariscal endeavored to show that there had in fact been no negligence on the part of the Mexican authorities in preventing the crime, and added that " admitting lack of negligence on the part of my Government, its total lack of responsibility in the case of Baldwin is wholly established." In response to Blaine's insistence that the degree of protection owed to foreigners could not be measured by the protection given to natives, Mariscal made the following statement: N o w , h o w e v e r w e a k or i m p e r f e c t m a y be the degree of protection which a state m a y extend t o its subjects (or citizens) that and no other should serve as a determined standard by w h i c h to gauge a n y negligence toward foreigners.

T h e latter k n o w , or should know, the extent

of s a f e t y

vailing in the country and as they spontaneously place themselves

preunder

the protection of the laws of such country, they m a y not claim rights superior to those e n j o y e d b y native citizens, nor should their privileges fall under different appraisement.

Ii>: support of this statement, Mariscal cited numerous passages from notes by Blaine and his predecessors denying responsibility for similar claims against the United States. He reiterated his contention that the claimant in this case should seek her remedies before the local courts, and supported this assertion by quotations from notes written by Secretary Bayard. 29 Secretary Blaine countered with another long note in which he sought to distinguish between the killing of Baldwin and the various attacks that had been made on foreigners in the United States on the ground that the latter had been the work of suddenly organized mobs who had acted so quickly as to preclude the possibility of preventive measures by the government of the United 28 Blaine to Dougherty, No. 430, January 5, 1891, MS. Inst. Méx., Vol. 23. It will be recalled that in the Chinese riot cases, Secretary Bayard had insisted that so long as a local system of administering justice existed, the claimants in such cases must be content with whatever redress the local courts were able to afford. 2 8 Mariscal to Ryan, October 10, 1891, enclosure with Ryan to Blaine, No. 786, October 17, 1891, MS. Desp. Méx., Vol. n o .

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States, whereas the killing of Baldwin had been perpetrated in cold blood, in pursuance of a deliberate threat by a handful of local ruffians who had long been engaged in the practice of crime in the same vicinity. 30 As the Mexican government made no reply to this note, the Department of State then instructed R y a n to try to secure some offer from the Mexican government, in an informal way, which would be acceptable to Mrs. Baldwin. R y a n eventually succeeded in obtaining a promise from President Diaz that as soon as the government of the United States finally decided to return the awards made in the Weil and L a Abra claims to Mexico, the Mexican government would consider the payment of an equitable sum to Mrs. Baldwin from the above fund. Such payment, however, was to be considered as a gratuity in deference to the views of the United States in the matter and not as an admitted obligation against the government of Mexico. 31 In response to this despatch the Department of State instructed R y a n to ascertain discreetly from Mariscal the amount which the Mexican government might be disposed to pay to Mrs. Baldwin in the event that the Weil and L a Abra awards were returned to Mexico. 32 Subsequently the Mexican government, through its Legation at Washington, made an offer to pay the sum of $20,000 in installments as an act of equity to Mrs. Baldwin. 33 This offer was first made in Mexican coin, but the Department of State insisted upon gold, and eventually the Mexican government agreed. T h e first installments amounting to $4,000 were paid on August 3, 1894, and subsequent installments of $1,000 were paid monthly thereafter until the whole amount of $20,000 was received. In another case that arose shortly after the close of the correspondence on the Baldwin case, the United States likewise succeeded in obtaining from the Mexican government a payment of compensation ex gratia. In 1893, Henry Hoppe, an American citizen, and a British subject named McSwinney, were murdered and Blaine to Ryan, No. 716, April 14, 1892, M S . Inst. Mex., Vol. 23. Ryan to Foster, No. 1166, February 4, 1893, MS. Desp. Mex., Vol. 115. 3 2 Wharton to Ryan, No. 899, February 24, 1893, MS. Inst. Mex., Vol. 23. 3 3 Romero to Gresham, February 17, 1894, Notes from Mexican Legation to Department of State, Vol. 42. 30 31

POLICE

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299

robbed by some members of the mounted police in the state of Oaxaca, Mexico. It appears that the British government promptly filed a claim for indemnity on behalf of the widow of McSwinney, and that on the " recommendation " of the Mexican government, the state of Oaxaca offered to pay the sum of $5,000 in equitable settlement of the claim. Subsequently the Department of State presented a claim of $25,000 on behalf of the heirs of Henry Hoppe. 34 T h e only defense raised against this claim by the Mexican government was that the evidence did not sufficiently establish Hoppe's American citizenship. A f t e r further evidence of this fact had been produced, the Mexican government offered to recommend to the state of Oaxaca the payment of $5,000 in Mexican currency to the heirs of Henry Hoppe in settlement of their claim. T h e American claimants insisted that a larger amount should be paid to the heirs of Hoppe than had been paid in the McSwinney claim because the latter had been killed outright, whereas Hoppe had been subjected to brutal treatment before being murdered. It was also contended that the value of Mexican currency had depreciated since the payment to Mrs. McSwinney. T h e Mexican government, however, refused to increase the amount of indemnity offered, first, on the ground that such indemnity was not for the injuries inflicted on Hoppe but for the loss sustained by his heirs " through the deprivation of the assistance that the victim might eventually give them " ; and second, that the delay in establishing the claim had been the fault of the American claimants and not of the Mexican government. 35 T h e Department of State subsequently agreed to accept the sum of $5,000 in Mexican currency as an equitable settlement of the claim, and this amount was paid shortly afterward b y the Mexican government. During the remaining years of the D i a z régime, the Mexican government, in pursuance of its policy of encouraging the exploitation of Mexican resources and the development of trade by foreign capital and enterprise, appears to have made determined efforts to suppress lawlessness and to provide adequate police proOlney to Ransom, No. 311, January 8, 1897, MS. Inst. Mex., Vol. 24. Aspiroz to Clayton, July 7, 1898, enclosure with Clayton to Hay, No. 528, July i s , 1898, MS. Desp. Mex., Vol. 163. 34

35

300

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tection. Federal troops were used to augment the local police forces in outlying districts, and bodyguards were furnished to travelers in dangerous regions. Steps were taken to remove tribes of troublesome Yaqui Indians from the northern territories that were the center of mining operations. Reports from the American Legation of crimes against American citizens were generally received with consideration by the Mexican government, and in most cases it appears that definite steps were taken to bring about the punishment of the criminals. Only occasionally did the Legation find cause to complain of the actions of the federal government in the prevention and punishment of crimes. A case that occupied considerable space in the diplomatic correspondence between the two governments at this time indicates the general interest which the Diaz government took in the prosecution of persons charged with crimes against foreigners. In 1897, an impoverished man named Michael Green, who claimed to be an American citizen, was arrested for begging in Mexico City and sent without trial to a convict farm, where, through a contract between the federal government and a wealthy Spaniard named Candido Fernandez, convicts were kept and worked. The American Minister, Clayton, on being informed of this fact, took the matter up with Mariscal, who promptly initiated an investigation. Fernandez at first denied that Green was working at his farm, and this led to his arrest by order of President Diaz. Subsequently Green died, and a Chinese who had had a dispute with Fernandez brought a charge that Green's death was the result of having been beaten by Fernandez. The latter was tried for illegal detention and mistreatment of Green, and subsequently the charge of homicide was added. Fernandez was found guilty and sentenced to imprisonment for three years and four months by the court of first instance. However, the Supreme Court of the state of Oaxaca reversed the decision because evidence had been presented that Green had died of a disease rather than from violence, and furthermore, because there was reason to believe that the testimony of the Chinese against Fernandez had been false. Fernandez was accordingly acquitted after having spent over a year in prison. The federal agent who had originally delivered Green to the

POLICE PROTECTION

301

convict camp was also arrested but was acquitted on the ground of lack of evidence of wrongdoing. Clayton took a great interest in the case and on several occasions informed the Department of State that he was satisfied that the Mexican government was acting in good faith in endeavoring to punish the persons responsible for Green's detention and mistreatment.36 On one occasion he expressed the view that since Fernandez was a man of means and influence, and Green was very poor and without friends, the arrest and prosecution of the former would have a good effect upon the treatment of Americans in Mexico.37 Clayton himself expressed grave doubts that the charge of homicide against Fernandez could be substantiated. However, after the acquittal of Fernandez on this charge, Clayton sought to induce the Mexican government to prosecute Fernandez for illegal detention of Green. Upon instructions from the Department of State, Clayton sent a note to Mariscal in which he reviewed the proceedings taken in the case and asserted that the failure to punish anyone for the illegal detention of Green represented a " failure of justice " which constituted a sufficient ground for a request for an indemnity. He accordingly asked that the Mexican government pay the sum of $3,000 to the United States for distribution among the relatives or legal representatives of Green in compensation for the failure to prosecute those who had illegally detained him.38 The federal government transmitted this request to the state government at Oaxaca, but the latter denied that any ground existed for a claim, first, because there was no proof that Green had been an American citizen, and second, because there had been no denial of justice in the case since the prosecution of the accused had been conducted in complete accordance with the local laws. It was asserted that the final acquittal of Fernandez had been made necessary by the evidence produced, and that the mere fact that no one had been 36 See for example Clayton to Hay, No. 666, November 9, 1898, MS. Desp. Mex., Vol. 137. 37 Clayton to Hay, No. 1256, February 3, 1902, MS. Desp. Mex., Vol. 154. 38 Enclosure with Clayton to Hay, No. 2158, February 16, 1904, MS. Desp. Mex., Vol. 167.

POLICE P R O T E C T I O N

302

convicted of detaining Green illegally could not form a basis for a claim.39 On receipt of this reply, Clayton went to great lengths to find evidence that Green had been an American citizen and also to locate Green's relatives, but apparently these efforts were not successful since the case was subsequently dropped by the American government. Apparently the only justification for the demand for indemnity in this case was the fact that, although the Mexican government had promised to take energetic steps to punish the guilty parties, no one had in fact been finally found guilty. No charge was made that the judicial officials involved in the case had been guilty of complicity or bad faith in the prosecution of Fernandez. No effort was made by the Department of State to show that the specific evidence on which the Supreme Court based its acquittal of Fernandez was false, or that, under Mexican law, the judgment of acquittal on the evidence produced was improper. The Mexican government seems to have acted in good faith in prosecuting the persons against whom charges were brought, and this fact was acknowledged on several occasions by the American Minister. Yet the Department of State was able to find that the case belonged under the category of a " failure of justice," and to conclude that Mexico was liable to pay an indemnity to Green's relatives for this failure. Apparently, only the inability to verify Green's claim to American citizenship or to locate any surviving relatives brought about an abandonment of this claim. Various other cases of murder of American citizens were brought to the attention of the Mexican government by Clayton, but it does not appear that a demand for pecuniary indemnity was made in any of these cases. In most cases Clayton merely called the attention of the Mexican Foreign Office to the happening of the crime and requested that suitable measures be taken to punish the perpetrators. The Mexican government seems to have been sincere in its efforts to bring about the punishment of the criminals in such cases. 39

Report of the Governor of Oaxaca to the Minister for Foreign Affairs, trans, enclosed with Clayton to H a y , No. 2596, December 3 1 , 1904, M S . Desp. Mex., Vol. 174.

POLICE

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303

In one instance Clayton charged the Mexican government with a failure to use diligence in the prosecution of murderers of Americans, but in this case he seems to have been careless in collecting his facts.

In a despatch to Secretary H a y in 1 9 0 3

regarding the murder of John E . Week, Clayton invited the attention of the Department to six other cases where Americans had been murdered, " resulting in the non-apprehension of the murderers," and expressed the opinion that " the apparent inefficiency on the part of the Mexican officials in the aforementioned cases calls for strong representations to the Mexican Government by this E m b a s s y . " 4 0

T h e six cases listed by Clayton were the

following: Benjamin Y . Garcia, Victor Gerster, J . S. Stanfield, Philip Nesdel, J . W . Cullen, and William Savage.

T h e actual

status of these cases at the time of the above despatch does not bear out Clayton's charges of laxity in the apprehension of the murderers.

In the case of Garcia, there might have been some

delay in the beginning, but a report from the Governor of the Federal District transmitted in a previous despatch from Clayton to H a y indicated that all possible steps were then being taken to apprehend the murderer. 1 1

In the case of Victor Gerster, the

murderer had fled to Guatemala and could not be apprehended there. 42

Stanfield had been murdered by an American citizen who

had fled to the United States;

the Mexican government had

sought his extradition, but an American judge had held that the evidence was not sufficient to warrant his surrender. 43

One of

the murderers of Philip Nesdel had been arrested, and the other was being pursued. 44

Cullen had been killed by an American who

had escaped to the United States. 45 that time in prison awaiting trial. 40

46

Savage's murderer was at In the case of the murder of

Clayton to Hay, No. 1945, September 9, 1903, MS. Desp. Mex., Vol. 164. 41 Mariscal to Clayton, June 22, 1903, enclosure with Clayton to Hay, No. i860, July 14, 1903, MS. Desp. Mex., Vol. 163. 42 Clayton to Hay, No. 1655, December 9, 1902, MS. Desp. Mex., Vol. 160. 43 See note of Assistant Solicitor to Mr. Adee, attached to Clayton's Desp. No. 1945, cited above. 44 Clayton to Hay, No. 1673, December 29, 1902, MS. Desp. Mex., Vol. 160. 45 Clayton to Hay, No. 1728, March 5, 1903, MS. Desp., Vol. 161. 46 Light to Clayton, September 5, 1903, enclosure with Clayton's Desp. No. 194S, cited above.

3°4

POLICE

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John E. Week, which had aroused Clayton to make the above assertion as to laxity in apprehending criminals, Clayton later reported that the Mexican authorities, although unsuccessful in their efforts to arrest the murderer, had not in fact been remiss in their duties. One other case that arose at this time is of interest because the Department of State ruled that there was no basis for making a claim against the Mexican government in the matter, but when the case was subsequently presented to the Claims Commission of 1923 a pecuniary award was granted. The case arose out of the murder of two American citizens, Clarence Way and Edward Latimer, at Aguacaliente in the state of Sinaloa, Mexico, in July, 1904. It appears that Hermolao Torres, alcalde of Aguacaliente, had had an altercation with Way because the latter had refused to salute him. Torres thereupon sent two men with an order to arrest Way. The latter agreed to accompany the two men but wanted first to finish dressing and have his breakfast. The two men would not agree to this and seized Way and attempted to carry him off bodily. Latimer, who was Way's cook, came out and grappled with one of the Mexicans. In the ensuing struggle, both Latimer and Way were shot and killed by the Mexicans. Subsequently Torres and the other two Mexicans were arrested and charged with murder. The court of first instance found them guilty. Torres was sentenced to ten months in jail and a fine of 500 pesos, or twelve months in jail in default of payment of the fine. One of the two men who had been sent to arrest W a y was found guilty of murder and sentenced to death. The other one was found not guilty and released from custody. An appeal was taken to the Supreme Court of the state of Sinaloa, and that court increased the sentence of Torres to imprisonment for one year and fifteen days. The death penalty against one of the prisoners was confirmed, and the other, who had been found not guilty, was sentenced to imprisonment for ten years and six months.47 After the first of the above sentences was rendered, various 4 7 See Opinion in the case of William T . Way v. Mexico, Docket No. 2362, Opinions of Commissioners, Vol. I, p. 94.

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305

complaints were made to the Department of State that the penalty imposed on Torres was inadequate. On examining the proceedings in the case, the Department expressed the opinion that the penalty imposed by the first court was " not at all commensurate with the enormity of his offence." Clayton was accordingly instructed that, while it was " improper for the Department to attempt to interfere in any way with due administration of justice in this case by Mexican courts," he might, in the exercise of his discretion, informally bring the case to the attention of Mariscal." Clayton complied with this instruction, and subsequently the Supreme Court rendered its judgment increasing the term of imprisonment of Torres as outlined above. It does not appear that the Department of State filed any complaint with the Mexican government against this second decision at that time, and it was apparently satisfied with the action of Mexico in the matter. No further action was taken on the case until the establishment of the General Claims Commission under the Convention of 1923, at which time a claim in the amount of $25,000 was filed against Mexico on behalf of the heirs of Clarence Way. On October 18, 1928, the Commission made an award of $8,000 in the case. In its opinion the Commission held that, while the charge of a denial of justice in the Mexican courts advanced by the agent of the United States had not been sustained, nevertheless the Mexican government should be held responsible for the wrongful acts of Torres. The Commission found that, as an alcalde, Torres exercised certain judicial functions, and that " under international law a nation has responsibility for the conduct of judicial officers." There must, said the Commission, be some ground for depriving a person of his liberty, and gross mistreatment in connection with arrest and imprisonment was not to be tolerated. The usual guarantees of personal liberty had been violated by Torres in issuing a void warrant, as a result of the execution of which Way had been killed. For this " tragic violation of personal rights secured by Mexican law and by international law," the Commission found that the Mexican government was liable to pay compensation. 48

Hay to Clayton, No. 1189, November 28, 1904, MS. Inst. Mex., Vol. 26.

CHAPTER

X

SOCIAL REVOLUTION AND NATIONALISM PORFIRIO DIAZ remained in power in Mexico for thirty-five years. During that time he established conditions of order and security exceeding anything previously known in Mexico. His general policy contemplated the economic development of Mexico through the exploitation of its natural resources and the encouragement of commerce and industry. Such a development could be carried on only with the assistance of foreign capital and enterprise, and Diaz accordingly did everything possible to encourage their introduction. Security of life and property was necessary for the growth of industry, and Diaz succeeded in establishing such security in a high degree through the exercise of his dictatorial powers. Diaz was also highly successful in his efforts to industrialize Mexico. Under his guidance, the country enjoyed a remarkable expansion in trade and commerce. Railroad construction grew from 691 kilometers in 1876 to 24,717 kilometers in 1911. 1 In the same period, the production of silver rose from 522,820 kilograms in 1875 t o 2,416,669 kilograms in 1910, and gold production advanced from 1,636 kilograms to 41,420 kilograms. Mexican exports and imports jumped from a value of 51,760,000 pesos in 1873 to 499,585,000 pesos in 1910.2 Mexico's copper production in 1910 was valued at 26,000,000 pesos, and its petroleum output was approximately 12,000,000 barrels. Government revenues increased correspondingly, and, under the able direction of José Limantour, Diaz's Secretary of the Treasury, Mexico's public credit was brought from a condition of hopeless confusion to a state where money could readily be borrowed in foreign markets Priestly, The Mexican Nation, a History (New York, 1926), p. 391. Tannenbaum, The Mexican Agrarian Revolution (New York, 1929), pp. 140-141. 1

2

306

SOCIAL REVOLUTION A N D N A T I O N A L I S M

307

at a rate of 4 per cent. Under the promise of continued peace and security, foreign capital flowed in at an unprecedented rate. Foreign commercial, mining, and agricultural interests received sympathetic treatment at the hands of government officials, and a feeling of confidence in local institutions was gradually developed. Coincidentally with the establishment of these favorable conditions for trade and industry, occasions for diplomatic interposition were greatly reduced in number, and the subject of diplomatic protection ceased to be a center of controversy between Washington and Mexico City. In spite of the phenomenal success of Diaz's program of industrialization, however, it did not represent a permanent improvement in local conditions. The economic system developed by Diaz did not grow naturally out of the social and ethnological structure of the Mexican nation but was imposed from above. That structure still bore heavy traces of feudalism. It consisted of a small ruling class of European extraction and a large peasant population of Indians and mestizos existing for the most part in a state of economic subjection. This native population was illiterate in a high degree. Its interests were agricultural, and it was not well adapted to the industrial civilization developed by Diaz. On the contrary, as commerce and industry expanded, the condition of the Mexican peón became steadily worse. In the face of rising prices and land values his wages remained stationary and his purchasing power decreased in proportion. The efforts of Diaz to substitute individual ownership of land in place of the communal ownership that still survived among the Indian population resulted merely in reducing large sections of that population to a condition of peonage, and in concentrating the ownership of land in large estates. Under the local wage system and the practice of paying wages in kind rather than in cash, agricultural laborers were kept in a continual state of debt. While commerce and industry were thriving, the native peón (making up practically 90 per cent of the population) was sinking into a condition of poverty and wretchedness. The failure of Diaz to improve the lot of the indigenous peasant class finally led to the collapse of his whole system.

308

SOCIAL R E V O L U T I O N A N D N A T I O N A L I S M

While the revolution of 1 9 1 0 was primarily social and economic in origin, it was also marked by a constantly growing spirit of nationalism and antagonism to foreign interests. Since the industrial and commercial development fostered by Diaz had been carried on largely by foreign capital and enterprise, it was natural that a revolt against the Diaz system should have included a revolt against foreign interests in Mexico. As the growth of foreign investment had been contemporaneous with a decline in the economic welfare of the peasant class, it was easy to see more than an accidental connection between them. Extensive exploitation of Mexico's natural resources by foreign companies provided a basis for the inference that native Mexicans were being deprived of their birthright. To the desire of the native Mexican for land there was added the cry of " Mexico for the Mexicans." It was inevitable that the revolt against the Diaz régime should have led to many difficulties in the international relations of the country. The desire to improve the status of the indigenous population could not be satisfied while the existing economic order was retained, and that order could not be changed without materially affecting the vested foreign interests that had become established under it. The nationalistic ambitions that accompanied the striving for a new economic order were likewise incompatible with a continuance of the dominating position of foreigners in the economic life of the country. In addition, the return of revolutionary conditions to Mexico meant an inevitable loss of security for life and property and brought about a sharp increase in the number' of reported injuries to foreigners and foreign interests in Mexico. With the collapse of the Diaz régime and the beginning of a new period of revolution in 1910, diplomatic protection again became a source of controversy between the United States and Mexico. It was not long after Madero had succeeded in ousting Diaz and had assumed control in March, 191 x, that complaints of mistreatment of American citizens began to be received in volume at the American Embassy. Henry Lane Wilson, who was Ambassador at that time, promptly presented these complaints to the Mexican government and demanded protection for American in-

SOCIAL REVOLUTION A N D N A T I O N A L I S M

309

terests. The tenor of his representations is well illustrated in the following note which he sent to the Mexican Foreign Office shortly after Madero had formed his Cabinet but before Porfirio Diaz had resigned: Representations have been made to me today by a large delegation of American merchants and business men residing in the City of Mexico, relative to the inadequate protection which, in case of danger being threatened to life and property by the disorderly elements of society, the Government of y o u r excellency could afford. It is stated by these informants that the military and police forces which the Government has at present at its command in the city are not sufficient to cope with any formidable attack which might be made, and they have expressed to me their deep apprehension relative to the security of the foreign element in this city. While I am sensible that your excellency's Government is at the present moment involved in the gravest difficulties, and while it gives me the greatest regret to intrude these matters upon your excellency's attention, I am obliged to say to you that in case of American lives or property being injured as a result of turbulent disturbances m y Government will be obliged to assume, prima facie, that insufficient protection has been afforded and place upon the Mexican Government, in all cases of claims for damages, the burden of the proof to the contrary. 8

Madero was inclined to do what he could to protect foreigners and foreign interests, but his control over the country was tenuous, and complaints of injuries to American citizens increased at the Embassy. These so irritated Ambassador Wilson that he finally, with the approval of Secretary of State Knox, sent a strong note to the Mexican government demanding an immediate increase in the amount of security afforded to American citizens. This demand had the tone of an ultimatum, although no specific time limit was set for compliance. Among the complaints listed was the alleged indifference of certain local officials toward the punishment of the murderers of three American citizens. Such conduct, said Ambassador Wilson, was not only contrary to law, but betrayed a callousness for which it would be difficult to find a parallel. He also asserted that certain Mexican citizens and officials, without the least hindrance from the administration, had been persecuting and preying upon 3 Wilson to De la Barra, May 13, 1911, Foreign Relations of the States, 1911, p. 492.

United

310

SOCIAL R E V O L U T I O N A N D NATIONALISM

American interests in Mexico at every favorable opportunity. As evidence of this fact, he stated that the Associated Press had been " repeatedly hampered by unnecessary and irksome restrictions," for which the administration could not be held " entirely unresponsible." Likewise the Mexican Herald, an Americanowned newspaper, had been " the victim of treatment altogether unfair." American interests in the Tlahualilo Company, a Mexican company, had failed to receive justice in certain litigation with the Mexican government. American oil companies in the vicinity of Tampico had proferred evidence that they were taxed " almost beyond endurance." It was reported that an attempt was being made to annul the concession held by the Mexican Packing Company, thereby causing a loss of millions of pesos to American citizens. The government of the United States, said Wilson, was compelled to insist that " this predatory prosecution, amounting practically to confiscation," should cease forthwith, and that immediate assurances to this effect should be given by the Mexican government. H e added that the failure of the Madero administration " to exert the efforts it would seem capable of exerting " to bring about an improvement of existing conditions had been observed with growing concern by the government of the United States, and had given ground for the belief that the administration was " either apathetic or incompetent or both." He was compelled plainly and frankly to state that the situation as it existed could not be allowed to go on indefinitely, and that " the administration in Mexico must bestir itself to fulfill its international duties toward American citizens and their interests." Unless this was done, the United States would have no recourse but to consider whether it would not be better to abandon its policy of friendliness toward the Mexican administration. He concluded as follows: The Government of the United States desires from your excellency as promptly as possible a comprehensive and categorical statement as to the measures the Mexican Government proposes to adopt: ( I ) to effect the capture and adequate punishment of the murderers of American citizens; ( I I ) to put an end to the discriminations against American interests, such as those which have been referred to above; and ( I I I ) to bring about such an

SOCIAL REVOLUTION A N D NATIONALISM

311

improvement in general conditions throughout Mexico that American settlers in that country will no longer be subjected to the hardships and outrages attendant upon a more or less constant state of revolution, lawlessness, and chaos. 4

In reply to this note, Señor Lascurain, Madero's Minister for Foreign Affairs, flatly denied the charges that the Mexican government or its officials had shown any hostility or indifference to American interests. Regarding the reported murders of American citizens in Mexico, he endeavored to show that the charge of laxity on the part of the Mexican police and judicial authorities was wholly unfounded. In this connection he referred to a number of murders of Mexicans in the United States in which the criminals had not been prosecuted, showing the " procrastination or indifference of the American authorities " in such cases. Regarding the case of the Tlahualilo Company, Lascurain pointed out that the company's claims had been the subject of litigation for a number of years and that repeated court decisions had been unfavorable to the company. As for the charge that the American oil companies were being " taxed almost beyond endurance," Lascurain pointed out that the only tax to which they were subject was a stamp tax of three Mexican centavos per barrel, which was less than the tax paid by oil companies in California, and that a majority of the companies in Mexico had accepted this tax without protest. As for the complaint of the Associated Press, Lascurain stated that this concern had been enjoying the use of a telegraph wire from Laredo to Mexico City for a number of years on a verbal agreement with the government, and that the representative of the Press had refused to accept the terms of a written contract embodying substantially the same conditions. As a result of this refusal, the Mexican government had been compelled to withdraw the privileges enjoyed under the verbal agreement and to charge the concern the regular press rates for the use of the telegraph wire. Señor Lascurain charged that the complaints of the owners of the Mexican Herald arose out of the fact that a subsidy granted to the paper by the previous administration had 4

Wilson to the M i n i s t e r for Foreign A f f a i r s , S e p t e m b e r 15, 1912,

p. 842.

ibid., 1912,

312

SOCIAL REVOLUTION A N D

NATIONALISM

been withdrawn. He denied that any order had been issued preventing the publication of the paper. As for the complaint that an attempt was being made to annul the concession of the Mexican National Packing Company, Lascurain pointed out that the matter had been the subject of litigation in the Mexican courts and had been decided in favor of the company. 5 Ambassador Wilson was dissatisfied with the reply of the Mexican government and urged upon the Department of State that a strong demand for immediate redress should be made upon the Mexican government. In his opinion, only one of two conclusions could result from the sending of the American note of September 15, "either the Mexican Government must yield, repair the damages it has done to us, and give clear guaranties for the future or we must take some vigorous and drastic action with the purpose of securing redress for our wrongs, an abatement of the situation, and perhaps, incidentally, the downfall of a Government which is hateful to a vast majority of the people of this country and which has given us innumerable evidences of its bad faith, inefficiency, hostility and insincerity." His experience had taught him that " these Latin American countries should be dealt with justly and calmly but severely and undeviatingly." Any other course would " bring disaster and forfeit to us, in the estimation of these peoples, the respect and awe with which they have been taught to regard u s . " 6 The administration at Washington, however, was not prepared to undertake drastic action at that time. President T a f t had been defeated at the November elections by Woodrow Wilson and was apparently disposed to take no steps that might embarrass his successor. Señor Lascurian had made a personal trip to Washington in December, 19x2, to discuss the outstanding issues and had made a distinctly favorable impression. Secretary K n o x had, to be sure, sought to impress upon him that Mexico must protect American lives and property; do justice to American citizens; restore order; respond to the great moral obligation to be especially considerate of American interests and promptly meet this Government's requests in specific cases; and, in general, exemplify that '

Foreign

Relations

of the United

States,

1912, p. 874.

6

Ibid.,

1913, pp. 886-887.

SOCIAL REVOLUTION AND NATIONALISM friendliness, earnestness

and

efficiency in protecting

American

313 interests

necessary to j u s t i f y before public opinion the continuance of the signally friendly and patient policy of the United States. 7

H e had even hinted that if the Madero government did not succeed in bringing about these conditions, the embargo that had been placed by President T a f t on the export of arms and ammunition that might fall in the hands of Mexican revolutionists would be withdrawn. Beyond this, however, Secretary Knox refused to make any move that might bind the incoming administration to a fixed course of action. In the meantime, Madero's troubles were rapidly increasing and his political control over the country was weakening. He was under attack both from the conservative faction that had prospered under the D i a z régime and from the liberals who were disappointed at his failure to accomplish the reforms that had been the primary aim of the revolution of 1910. On February 9, 1913, a successful coup d'état was staged under the leadership of Felix Diaz, nephew of the former president, and after ten days of struggle, Madero was forced to resign. His downfall was brought about primarily through the treachery of General Victoriano Huerta, who was in charge of the government troops. Under an arrangement made at the American Embassy on February 18, General Huerta became Provisional President and General Felix Diaz selected his cabinet. On February 22, President Madero and Vice President Suarez were shot, although Huerta had given repeated promises that their lives would be spared. Ambassador Wilson strongly favored the change of government and there is ample evidence that he played an important rôle in bringing it about. He believed that a dictatorship of the type of the Diaz régime was the only suitable kind of government for Mexico, and he had steadily maintained a hostile attitude toward the reform movement instituted by Madero. The counterrevolution engineered by Felix Diaz and Huerta had as its aim the restoration of the dictatorship, and Ambassador Wilson did not disguise his full sympathy with this aim. Immediately after Huerta assumed the Provisional 1 Knox to Henry Lane Wilson, January 7, 1913, ibid., 1913, p. 924.

Presi-

314

SOCIAL REVOLUTION A N D

NATIONALISM

dency, Ambassador Wilson suggested to the Department of State that recognition be extended to him. " It would be well to note," wrote Wilson, " that the Provisional Government takes office in accordance with the Constitution and precedents." 8 K n o x replied that, in view of Wilson's statements, the Department of State was disposed to consider the Provisional government as being legally established, but that, considering the disturbed situation that had existed for two years in Mexico, the government of the United States had to give careful consideration to the ability and disposition of the new government " to comply with the rules of international law and comity, the obligations of treaties, and the general duties to foreigners and foreign governments incidental to international intercourse." Wilson was accordingly instructed to endeavor to obtain assurances that the outstanding questions between the two countries would be dealt with in a satisfactory manner. Secretary Knox referred to the specific demands that had been made in the note of September 15, 1912, referred to above, and added the following: T h a t the administration of justice t h r o u g h o u t M e x i c o shall be raised to s u c h a plane that this G o v e r n m e n t will no longer be compelled, b y manif e s t l y unfair and improper action on the p a r t of certain M e x i c a n courts, to m a k e diplomatic representations in f a v o r of its u n j u s t l y t r e a t e d

nationals.

A n d , finally, b u t most important, that the M e x i c a n G o v e r n m e n t agree in principle to the settlement of all claims resulting f r o m the loss of life b y A m e r i c a n citizens and damages to A m e r i c a n

property

on a c c o u n t

of

the

recent political disturbances in M e x i c o b y presentation thereof to a mixed international commission w h i c h shall a w a r d d a m a g e s t h e r e f o r . 9

Wilson endeavored to obtain definite commitments from the Huerta government on the outstanding issues as a price of recognition, but was not successful in getting anything more than vague promises. In the meantime, the murder of Madero had aroused considerable opposition to the Huerta régime in Mexico and had provided an excuse for General Carranza to withdraw his support from that régime and to start a new revolution. T h e T a f t administration at Washington went out of office before any agree8 9

Wilson to Knox, February 20, 1913, ibid.., 1913, p. 725. Knox to Wilson, February 21, 1913, ibid., 1913, pp. 728-729.

SOCIAL REVOLUTION AND NATIONALISM

315

ment was reached with the Huerta government in regard to recognition. The change of administration at Washington brought about a distinct change in the policy of the government of the United States toward Mexico. The attitude of the preceding administration had been well expressed by President T a f t in his annual message to Congress of December 3, 1912, in the following words: T h e d i p l o m a c y of the present administration has sought to respond m o d e r n ideas of c o m m e r c i a l intercourse. as substituting dollars f o r bullets.

to

T h i s policy has been characterized

I t is one that appeals alike to idealistic

h u m a n i t a r i a n sentiments, to the dictates of sound policy and strategy, and t o legitimate

commercial

aims.

It

is an effort f r a n k l y

directed

increase of A m e r i c a n trade u p o n the axiomatic principle that the

to

the

Govern-

m e n t of the United S t a t e s shall extend all proper support t o e v e r y legitim a t e and beneficial A m e r i c a n enterprise abroad.

H o w great h a v e been the

results of this d i p l o m a c y , coupled with the m a x i m u m and minimum

pro-

vision of the tariff law, will be seen b y some consideration of the w o n d e r f u l increase in the export

trade of

the United

States.

B e c a u s e modern

di-

p l o m a c y is commercial, there has been a disposition in some quarters a t t r i b u t e to it none but materialistic

aims.

How

strikingly

to

erroneous is

such an impression m a y be seen f r o m a study of the results b y w h i c h the d i p l o m a c y of the United S t a t e s can be judged.

For

two years revolution

neighboring of

Republic

depredation

questions of

upon

of

and counter-revolution

Mexico.

foreign

interests.

extreme delicacy.

tions h a v e arisen on our frontier. of

the United

recognition

of

Brigandage There

have

has involved have

distraught

the

a great

deal

constantly

On several occasions v e r y

recurred

difficult situa-

T h r o u g h o u t this trying period, the p o l i c y

States has b e e n one of patient non-intervention,

steadfast

constituted

and

authority

in

the neighboring

exertion of e v e r y effort t o care f o r A m e r i c a n interests.

nation,

the

I p r o f o u n d l y hope

that the M e x i c a n nation m a y soon resume the path of order, prosperity, and progress.

T o that nation in its sore troubles, the sympathetic friendship of

the United States has been d e m o n s t r a t e d to a high degree.

T h e r e were in

M e x i c o at the beginning of the revolution some thirty or f o r t y

thousand

A m e r i c a n citizens engaged in enterprises contributing greatly to the prosperity of that R e p u b l i c and also benefiting the important trade b e t w e e n the t w o countries.

T h e i n v e s t m e n t of A m e r i c a n capital in those interests and

the dangers inseparable f r o m p r o p i n q u i t y to so turbulent a situation h a v e been great, but I a m h a p p y t o h a v e been able t o adhere to the policy a b o v e outlined — a policy w h i c h I hope m a y be soon justified b y the complete sue-

3I6

SOCIAL R E V O L U T I O N A N D NATIONALISM

cess of the Mexican people in regaining the blessings of peace and good order. 10

The primary concern of this policy had been the fostering of conditions favorable to American trade with Mexico and to American interests there. The manner in which these conditions might be achieved by the Mexican nation was a matter of indifference to other governments. If a particular Mexican régime succeeded in maintaining order and security and the protection of foreign interests, there was no reason to inquire into the origin of that régime or to pass judgment upon the question whether its method of government accorded with the interests and aspirations of the majority of the native population. Woodrow Wilson regarded the whole situation in a different light. Like his predecessors, he was interested in the establishment of order and the protection of property interests, but he held a different view as to how this might be brought about. His political philosophy was dominated by a belief in the democratic ideal, and by a conviction that permanent order and security could not be achieved in any country by a governmental system that did not have the active approval of a numerical majority of the local population. The past history of Mexico seemed to him to indicate that government by dictatorship ended inevitably in revolution and disorder. He was convinced that the mass of the Mexican population was not represented by the personal régimes that supplanted each other by revolution, and that permanent peace could not be expected until the political control of the country could be vested in the majority. As a result of this attitude, President Wilson naturally looked with disfavor upon the Huerta régime. 11 He felt that Huerta 10

Foreign Relations of the United States, 1 9 1 2 , pp. x and xiv. Wilson's general attitude was expounded in his address before the Southern Commercial Congress at Mobile, Alabama, October 27, 1 9 1 3 , and in his declaration to the American Republics on March 12, 1 9 1 3 , in which he made the following statement : 11

" One of the chief objects of my Administration will be to cultivate the friendship and deserve the confidence of our sister republics of Central and South America and to promote in every proper and honorable way the interests which are common to the peoples of the two continents. We can have no sympathy with those who

SOCIAL REVOLUTION A N D NATIONALISM

317

did not represent the aspirations of the majority of the Mexican people, and hence that no peace could be expected until he was eliminated.12 There were three ways short of armed intervention by which Huerta's hold on the government could be weakened : ( 1 ) withholding recognition; ( 2 ) controlling the supply of arms and ammunition to Mexico; and ( 3 ) discouraging loans to the Mexican government. President Wilson resorted to all three of these methods to force Huerta from power. Ambassador Henry Lane Wilson at Mexico City was naturally not sympathetic with this change of policy at Washington, and he continued to urge upon the Department of State the necessity for immediate recognition of the Huerta régime. He sent frequent reports that the delay in recognition was having disastrous consequences for American interests in Mexico. His general attitude was so contrary to the new policy of the Wilson administration that he was finally recalled in July, 1 9 1 3 , and his resignation accepted. 13 seek to seize the power of government to advance their own personal interests or ambitions. We are the friends of peace, but we know that there can be no lasting or stable peace under such circumstances. . . . The United States has nothing to seek in Central and South America except the lasting interests of the peoples of the two continents, the security of Governments intended f o r the people and for no special group or interest and the development of personal and trade relationships between the t w o continents which shall redound to the profit and advantage of both, and interfere with the rights and liberties of neither." See World Peace Foundation, Pamphlets, Vol. I I , 1 9 1 3 , President Wilson on the United States and Latin America. 12 " There can be no certain prospect of peace in America until General Huerta has surrendered his usurped authority in Mexico ; until it is understood on all hands, indeed, that such pretended governments will not be countenanced or dealt with by the Government of the United States. We are the friends of constitutional government in America; we are more than its friends, we are its champions; because in no other way can our neighbors, to whom we would wish in every w a y to make proof of our friendship, work out their own development in peace and liberty. . . . Even if the usurper had succeeded in his purposes, in despite of the constitution of the Republic and the rights of its people, he would have set up nothing but a precarious and hateful power, which could have lasted but a little while, and whose eventual downfall would have left the country in a more deplorable condition than ever." Address of President Wilson to Congress, December 2, 1 9 1 3 , Addresses and Messages of President Wilson, IQTJ to 1920, pp. 4 - 5 . 13 In spite of the sharp difference of opinion between them, it seems that both Ambassador Wilson and President Wilson were working toward the same goal of

3i8

SOCIAL REVOLUTION A N D

NATIONALISM

President Wilson then sent John Lind as his " personal spokesman and representative " to Mexico with instructions to endeavor to induce Huerta to eliminate himself from the presidency by holding a new election at which he would not be a candidate. However, Huerta flatly declined to agree to any such proposal, and accused President Wilson of undue interference in the domestic affairs of Mexico. 1 4 Thereafter President W'ilson settled down to his policy of " w a t c h f u l waiting." Huerta's position became constantly more precarious, and the revolutionary movements started by Carranza and Villa grew in strength. Huerta resorted to desperate measures to retain his power, but the pressure against him increased. Early in 1914, Secretary of State Bryan announced that President achieving permanent conditions of peace and order in Mexico. They differed primarily on the practical steps by which this goal could be reached. Ambassador Wilson had come to the conclusion during his residence in Mexico that the Mexican people were still too ignorant and backward to operate democratic institutions successfully, and that under existing conditions a strong dictatorship offered the only hope of maintaining peace and order. Thus he wrote to President Wilson as follows: " In all probability Mexico will become and afterwards remain quiet for some time, but ultimately, unless the same type of government as was implanted here by General Porfirio Diaz is again established, new revolutionary movements will break forth and general unrest will be renewed. " With 80 per cent of its population unable to read and write, permanent democratic government can not be established in Mexico. But if we desire to contribute to the continued existence of democratic government and institutions under healthy conditions we should direct our efforts toward inducing this Government t o adopt and encourage a plan for universal education, assisting in the meantime in the maintenance of such a government as may guarantee protection to life and property and peace and progress, without being especially particular as to whether its character is in accordance with our ideas of genuine democratic institutions." Wilson to Bryan, March 12, 1913, Foreign Relations of the United States, 1913, p. 776. 1 4 Lind was authorized by President Wilson to promise that if this proposition were accepted, immediate recognition would be granted and the President would express to American bankers and their associates assurances that the Government of the United States would look with favor upon the extension of an immediate loan sufficient in amount to meet the temporary requirements of the Mexican Government. Huerta's Secretary for Foreign Affairs declined even to reply to this " significant offer " on the ground that it appeared to be " an attractive antecedent proposal to the end that, moved by petty interests, we should renounce a right which incontrovertibly upholds us." See ibid., 1913, pp. 833 and 835.

SOCIAL REVOLUTION A N D NATIONALISM

319

Wilson no longer felt justified in remaining neutral in the struggle between Huerta and the revolutionists, and that the embargo on arms would be lifted as a means of aiding those in revolt against Huerta. In April, 1914, an incident occurred which led to the occupation of Vera C r u z by American naval forces. 15 War seemed imminent until President Wilson accepted the good offices of the diplomatic representatives of Argentine, Brazil, and Chile. These mediators at first proposed the establishment of a provisional government that would be neutral as between the Huerta and the so-called Constitutionalists headed by Carranza and Villa, but President Wilson contended that any provisional government, to be successful, must " be actually, avowedly and sincerely in favor of the necessary agrarian and political reforms," and only the Constitutionalists could be considered as the successors to the government of Mexico. 1 0 On July 15, 1914, Huerta finally resigned the presidency and sailed for Spain. On August 22, Carranza announced that he had taken charge of the executive power of the country. Three 15

W h i l e the ostensible purpose of this hostile action w a s t o obtain satisfaction

f o r the arrest of the p a y m a s t e r and crew of the w h a l e - b o a t " D o l p h i n , " it appears that the real purpose behind the m o v e w a s to p r e v e n t the landing of a cargo of ammunition from Germany for Huerta.

See T u m u l t y , Woodrow

Wilson

as I

Knew

Him, pp. 1 5 1 - 1 5 2 . 16

May

27,

1914,

Foreign

Relations

of

the

United

President Wilson's attitude at this time is illustrated b y

States,

1914,

the f o l l o w i n g

p.

510.

excerpts

f r o m an authorized interview w h i c h he granted t o Samuel G . B l y t h e on A p r i l 27, 1914: " It is a curious t h i n g , " he continued, " t h a t e v e r y d e m a n d f o r the establishment of order in M e x i c o t a k e s i n t o consideration, not order for the benefit of t h e people of M e x i c o , the great mass of the p o p u l a t i o n , b u t order f o r the benefit of the old-time regime, f o r the aristocrats, f o r the vested interests, f o r the m e n w h o are responsible for this v e r y condition of disorder.

N o one asks for order because

order will help the masses of t h e people t o get a p o r t i o n of their rights a n d their l a n d ; but all d e m a n d it so that the great o w n e r s of p r o p e r t y , the overlords, the hidalgos, the men w h o h a v e exploited t h a t rich c o u n t r y f o r their o w n selfish p u r poses, shall be able to continue their processes undisturbed b y the protests of the people f r o m w h o m their w e a l t h and p o w e r h a v e been o b t a i n e d . " " T h e y w a n t order — the old o r d e r ; b u t I say to y o u that the old order is dead.

It is m y part, as I see it, to aid in composing those differences so f a r as I

m a y be able, t h a t the n e w order, w h i c h will h a v e its f o u n d a t i o n on h u m a n liberty a n d h u m a n rights, shall p r e v a i l . " Scott, ed., p p . 383-391.

President

Wilson's

Foreign

Policy,

James Brown

320

SOCIAL REVOLUTION A N D NATIONALISM

months later the American forces that had occupied Vera Cruz were withdrawn. Far from bringing peace to Mexico, the accession of Carranza to the executive power ushered in a new period of disorder. Villa broke with Carranza and vigorously attacked the Constitutionalist forces. Zapata joined in the attack upon Carranza. The latter flatly declined to cooperate with the other revolutionary groups in establishing peace and order in Mexico. President Wilson eventually held a conference of the diplomatic representatives of the six leading Latin American states to discuss the subject of recognition. After considering all phases of the situation, the conference finally decided to recommend the recognition of the Carranza régime as the only faction exercising de jacto control over the major portion of the country. Before acting on this recommendation, President Wilson succeeded in obtaining from Carranza definite assurances that the lives and property of foreigners in Mexico would be respected " in accordance with the practices established by civilized nations and the treaties in force between Mexico and other countries." Carranza further agreed that he would " recognize and satisfy indemnities for damages caused by the revolution, which shall be settled in due time in terms of justice." 1 7 Upon receiving these 1 7 Confidential Agent Arredondo to the Secretary of State, October 7, 1915, Foreign Relations of the United States, 1915, p. 763. In giving the above assurances, Arredondo referred to the public declarations of Carranza of December 12, 1914 and June 11, 19x5, in which he had promised that he would fulfil all international obligations in regard to foreigners in Mexico. In the latter of these declarations Carranza had stated in part as follows:

" 1. The Constitutional Government shall afford to foreigners residing in Mexico all the guaranties to which they are entitled according to our laws, and shall amply protect their lives, their freedom and the enjoyment of their rights of property, allowing them indemnities for the damage which the Revolution may have caused them, in so far as such indemnities may be just, and which are to be determined by procedure to be established later. The Government shall also assume responsibility for legitimate financial obligations.

" 4. There shall be no confiscations in connection with the settlement of the agrarian question. This problem shall be solved by an equitable distribution of the lands still owned by the Government; by the recovery of those lots which may have been illegally taken from individuals or communities; by the purchase and

SOCIAL REVOLUTION A N D NATIONALISM

321

assurances, President Wilson recognized the Carranza régime as the de facto government of Mexico on October 19, 1915. A t the same time, the embargo on arms to non-government forces in Mexico was restored by President Wilson as a move to strengthen the Carranza government. T h e de facto recognition of Carranza aroused Villa to renewed activity. In an effort to embroil Carranza in further difficulties with the United States, Villa staged various raids across the border and also attacks upon American citizens in Mexico. On January 10, a train was held up by Villista forces near Santa Ysabel, Mexico, and fifteen American mining engineers were lined up and shot. On February 17, President Wilson sent to the Senate a report of the Secretary of State in response to a resolution of that body inquiring about existing conditions in Mexico. Regarding the ability of the de facto government to fulfil its promises to protect the lives and property along the border, Secretary Lansing stated that, since assurances in this respect had been given by Carranza, the disturbances along the border had in a large measure ceased, and that conditions there were " practically normal." Regarding its ability to protect American lives and property in Mexico, Secretary Lansing stated as follows: . . . The Department's information indicates that the de facto Government is now in control of all but a few sections of Mexico, and that, bearing in mind that the nation is just emerging from years of domestic strife, it may be said that within the territory which it controls it is affording, in all circumstances, reasonably adequate protection to the lives and property of American citizens and that it is taking steps to extend its authority over and restore order in sections now in the hands of hostile factions. In this connection, however, it should be stated that the lawless conditions which have long continued throughout a large part of the territory of Mexico are not easy to remedy and that the great number of bandits who have infested certain districts and devastated property in such territory can not be supexpropriation of large tracts of l a n d , if necessary ; b y all other m e a n s of acquisition permitted

by

the

laws

of

the

country.

The

Constitution

of

Mexico

forbids

privileges and therefore, all kinds of properties regardless of w h o the o w n e r s m a y be, whether operated or not, shall in the f u t u r e be subject to the

proportional

p a y m e n t of a tax in accordance w i t h a just and equitable v a l u a t i o n . " 5. A l l p r o p e r t y legitimately acquired f r o m i n d i v i d u a l s or legal g o v e r n m e n t s , and which does n o t constitute a privilege or a m o n o p o l y , shall be respected."

32 2

SOCIAL REVOLUTION AND

NATIONALISM

pressed i m m e d i a t e l y , but that their suppression will require some time f o r its accomplishment, pending which it m a y be expected that they will commit sporadic outrages upon lives and property.

Secretary Lansing appended a list to his report showing that during the years 1 9 1 3 , 1 9 1 4 , and 1 9 1 5 , seventy-six American citizens had lost their lives in Mexico. In this connection, the Secretary pointed out that during the years 1 9 1 o, 1 9 1 1 , and 1 9 1 2 , when conditions were relatively more peaceful, forty-seven Americans had lost their lives in Mexico. He also pointed out that in the years 1 9 1 3 to 1 9 1 5 , ninety-two Mexicans had been reported killed in American territory. 18 Shortly after the above report had been made to the Senate, Villa, on March 9, 1 9 1 6 , staged his attack on Columbus, New Mexico, killing sixteen American citizens and partly burning the town. This raid forced President Wilson to take drastic measures, and he accordingly sent an expeditionary force under General Pershing into Mexico with orders to capture Villa. While it was to the interest of the Carranza government to have Villa captured, and while the instructions given to the expeditionary force limited its movements to this end and enjoined upon General Pershing to conduct the expedition " with scrupulous regard to the sovereignty of Mexico," 1 3 the Carranza government strongly resented the move and refused to cooperate with the American forces. Largely as a result of the hostile attitude of the Carranza government, the Pershing expedition failed of its purpose. After making several demands for the withdrawal of the American troops from Mexican territory, Carranza, on M a y 22, 1 9 1 6 , sent an extremely sharp note to Washington in which he accused President Wilson of bad faith in his professed policy of friendship toward Mexico and of ulterior designs on Mexican territory. In conclusion, Carranza threatened armed resistance if the American troops moved in any other direction save toward the border. 20 Considering the belligerent tone of this note, Secretary Lansing's reply showed an unusual degree of restraint. He firmly 18 19 20

Foreign Relations of the United States, 1916, pp. 469-478. The Adjutant General to General Funston, March 10, 1916, ibid., 1916, p. 483. Aguilar to Lansing, M a y 22, 1 9 1 6 , ibid., 1916, pp. 552-563.

SOCIAL R E V O L U T I O N A N D N A T I O N A L I S M

323

declined to comply with the categorical demand for the immediate withdrawal of the American troops, but at the same time gave ample assurances that the United States had no designs on Mexican territory. The purpose of the expedition, he said, was merely the protection of American lives and property. T h e Government of the United States has viewed with deep concern and increasing disappointment the progress of the revolution in Mexico. ous bloodshed and disorders have marked its progress.

Continu-

F o r three years the

Mexican Republic has been torn with civil strife; the lives of Americans and other aliens have been sacrificed; vast properties developed by capital and enterprise have been

destroyed

or

rendered

American

nonproductive;

bandits have been permitted to roam at will through the territory contiguous to the United States and to seize, without punishment or without effective attempt at punishment, the property of Americans, while the lives of citizens of the United States who ventured to remain in Mexican territory or to return there to protect their interests, have been taken, and in some cases barbarously taken, and the murderers have neither been apprehended nor brought to justice.

I t would be difficult to find in the annals of the history

of Mexico conditions more deplorable than those which have existed there during these recent years of civil war.

In the face of these depredations on American lives and property not only in Mexico but also in American territory, " the perpetrators of which General Carranza was unable or possibly considered it inadvisable to apprehend and punish," the United States had no recourse other than to employ force to disperse the bands of Mexican outlaws who were systematically conducting raids across the boundary. " Protection of American lives and property then, in the United States is first the obligation of this government, and in Mexico, is first the obligation of Mexico, and second, the obligation of the United States." If the government of Mexico could not protect the lives and property of Americans, exposed to attack from Mexicans, the government of the United States was in duty bound, so far as it could, to do so. In conclusion, Secretary Lansing stated that if Carranza carried out his threat of an appeal to arms if the American troops were not withdrawn, such action would lead to the " gravest consequences." 21 Following the receipt of this note, Carranza indicated that he 21

Lansing to Aguilar, June 20, 1916, ibid.,

1916, pp. 581-592.

32 4

SOCIAL REVOLUTION A N D NATIONALISM

was willing to discuss the; practical steps which might be taken to remedy the existing situation.22 In reply, President Wilson suggested the appointment of three commissioners by each government to discuss the situation. This proposal was accepted and, as a result of the deliberations of the Commissioners, the American troops were finally withdrawn from Mexico on February 5, 191 7 . " Great pressure was brought to bear at this time on President Wilson to intervene forcefully in Mexico, but he stood his ground. American commercial interests in Mexico had suffered greatly from the disordered conditions there, and these interests naturally aligned themselves with those who advocated strenuous measures. President Wilson seems to have felt that most of the pressure being brought to bear on him to change his policy originated with Americans holding concessions in Mexico. Tumulty reports him as saying, " I have to pause and remind myself that I am President of the United States and not of a small group of Americans with vested interests in Mexico." 24 Again, President Wilson remarked, " I am more interested in the fortunes of oppressed men, pitiful women and children, than in any property rights whatever. The people of Mexico are striving for the rights that are fundamental to life and happiness . . . 15,000,000 oppressed men, over-burdened women and pitiful children in virtual bondage in their own home of fertile lands and inexhaustible treasure! " 2 5 On another occasion Tumulty reports him as saying: I am seriously considering e v e r y phase of this difficult matter, and I can say f r a n k l y to y o u , and y o u m a y i n f o r m the Cabinet officers w h o discuss it with you, that " there won't be any w a r with M e x i c o if I can prevent it," no matter how loud the gentlemen on the hill yell for it and demand it. I t is not a difficult thing f o r a president to declare war, especially against a w e a k and defenceless nation like M e x i c o .

I n a republic like ours, the

m a n on horseback is always an idol, and were I considering the matter f r o m the standpoint of m y own political fortunes, and its influence upon the result Aguilar to Lansing, July 4, 1916, ibid., 1916, p. 599. The report of the proceedings of the commissioners is printed in ibid., 1917, pp. 916-938. 24 See Tumulty, op. cit., pp. 144-161. 25 Ibid. 22

23

SOCIAL REVOLUTION A N D NATIONALISM

325

of the next election, I should at once grasp this opportunity and invade Mexico, for it would mean the triumph of my administration. 26

President Wilson repeatedly gave expression to his disapproval of all imperialistic aims in Mexico and to his sympathy with the aspirations of the native population as against foreign commercial 28 Ibid. In October 1916 while the Pershing expedition was still in Mexico, President Wilson wrote an article on the Mexican question for Ladies Home Journal for that month, stating in part as follows: " If we should intervene in Mexico, we would undoubtedly revive the gravest suspicions throughout all the states of America. B y intervention I mean the use of the power of the United States to establish internal order there without the invitation of Mexico and determine the character and method of her political institutions. We have professed to believe that every nation, every people, has the right to order its own institutions as it will, and we must live up to that profession in our actions in absolute good faith.

" Moreover, ' order ' has been purchased in Mexico at a terrible cost when it has been obtained by foreign assistance. The foreign assistance has generally come in the form of financial aid. T h a t financial aid has almost invariably been conditional upon ' concessions' which have put the greater part of the resources of the country which have as yet been developed in the hands of foreign capitalists, and by the same token under the 1 protection ' of foreign governments. " Those who have successfully maintained stable order in Mexico by such means have, like Diaz, found that they were the servants, not of Mexico, but of foreign concessionaires. " The economic development of Mexico has so far been accomplished by such ' concessions 1 and by the exploitation of the fertile lands of the republic by a very small number of owners who have accumulated under one title hundreds of thousands of acres, swept within one ownership the greater part of states, and reduced the population of the coirtitry to a sort of peonage. " Mexico is one of the treasure houses of the world. I t is exceedingly to be desired by those w h o wish to amass fortunes. Its resources are indeed serviceable to the whole world and are needed by the industries of the whole world. N o enterprising capitalist can look upon her without coveting her. The foreign diplomacy with which she has become bitterly familiar is the ' dollar diplomacy,' which has almost invariably obliged her to give precedence to foreign interests over her own. What she needs more than anything else is financial support which will not involve the sale of her liberties and the enslavement of her people. " Property owned by foreigners, enterprises conducted by foreigners, will never be safe in Mexico so long as their existence and the method of their use and conduct excite the suspicion and, upon occasion, the hatred of the people of the country itself. . . . " I am speaking of a system and not uttering an indictment. The system by which Mexico has been financially assisted has in the past generally bound her hand and foot and left her in effect without a free government. It has almost in every instance deprived her people of the part they were entitled to play in the determination of their own destiny and development.

32 6

SOCIAL REVOLUTION AND NATIONALISM

interests and concessionaires. However, his attitude toward the diplomatic protection of existing American interests in Mexico did not differ substantially from that of his predecessors, save in a possibly greater reluctance to resort to forceful measures to back up his demands. Like his predecessors, he apparently saw no relation between the charges of imperialism brought against the American government and the insistence upon the full protection of American lives and property in Mexico. He was convinced that an improvement in the economic status of the Mexican peón was a necessary preliminary to the establishment of permanent peace and prosperity in Mexico, and he repeatedly stated his belief that the first step was to provide the peón with land. Nevertheless, it does not appear that he was prepared to see this accomplished at the expense of foreign property holders in Mexico. He does not seem to have faced the practical problem how land was to be given to the landless classes of the Mexican population without taking it away from those who had acquired it under legitimate title. Obviously the Mexican government was in no financial position to pay compensation at existing values for the amount of property that would be required to equip all natives " This is what every leader in Mexico has to fear, and the history dealings with the United States cannot be said to be reassuring. " I t goes without saying that the United States must do as she is must insist upon the safety of her borders; she must, so fast as order is of chaos, use every instrumentality she can in friendship employ to lives and the property of her citizens in Mexico.

of Mexico's doing — she worked out protect the

" But she can establish permanent peace on her borders only by a resolute and consistent adoption in action of the principles which underlie her own life. She must respect the liberties and the self-government of Mexicans as she would respect her own. She has professed to be the champion of the rights of small and helpless states, and she must make that profession good in what she does. She has professed to be the friend of Mexico, and she must prove it by seeing to it that every step she takes is a step of friendship and helpfulness. " I t is painful to observe how few of the suggestions as to what the United States ought to do with regard to Mexico are based upon sympathy with the Mexican people or any effort even to understand what they need and desire. I can say with knowledge that most of the suggestions of action come from those who wish to possess her, who wish to use her, who regard her people with condescension and a touch of contempt, who believe that they are fit only to serve and not fit for liberty of any sort. Such men can not and will not determine the policy of the United States. They are not of the true American breed or motive."

SOCIAL R E V O L U T I O N A N D N A T I O N A L I S M

327

with sufficient agricultural land to make them self-supporting. If a redistribution were to be effected, it would necessarily have to be done in great part at the expense of existing landholders, many of whom were foreigners. President Wilson does not seem to have realized this situation, since at the very time that he was advocating a redistribution of land, he was likewise insisting upon a full protection of existing American property rights in Mexico. Likewise in the matter of the natural resources of Mexico, President Wilson made many statements which indicated that he had no sympathy with the foreign interests who were exploiting them. He clearly inferred that, in his opinion, these natural resources should be developed primarily for the benefit of the Mexican people. However, the same practical situation existed there as in the case of land distribution. The development of Mexico's natural resources had been carried out very largely by foreign capital and enterprise, and had involved the investment of enormous sums of foreign capital. The Mexican government was in no position to buy out these foreign interests, and hence if any radical change of ownership was to be effected, it would have to be done in large part at the expense of existing vested interests. Yet President Wilson's administration firmly resisted any encroachment upon existing property rights of American citizens in Mexican natural resources. The positions which his administration assumed on the land and oil questions formed the basis of the prolonged diplomatic controversy that lasted through the Harding and Coolidge administrations. As a means of gaining popular support, Carranza resorted to definite moves toward the distribution of land among the peasants and the recovery of Mexico's natural resources from the hands of foreign owners. On January 6, 1915, several months before he had obtained supremacy over Villa, he issued his famous land decree which was to provide the basis for future agrarian reform in Mexico. The details of this decree will be discussed in the chapter on agrarian reform. In substance, it provided for the nullification of transfers of community lands " illegally " made during the Diaz regime and for the donation of lands to villages which had need of them. It provided for the establishment of

328

SOCIAL R E V O L U T I O N A N D

NATIONALISM

administrative machinery for carrying out the program, and also stipulated that existing owners whose lands were expropriated should have the period of one year in which to appear and demand indemnity, " which shall be paid to them." 2 7 It does not appear that any immediate steps were taken to put this decree into effect, or that the government of the United States filed any protest against it. However, the mere issuance of the decree appears to have aided in rallying large sections of the peasant population to the support of the Carranza régime. At the same time, Carranza, on January 7, 1 9 1 5 , issued a decree ordering the suspension of " all works in connection with the exploitation of petroleum," pending the enactment of new legislation governing the exploration for and exploitation of the oil and gas deposits of the country. 28 T h e passage of this decree brought an immediate and earnest protest from the government of the United States against its application to foreign owners of petroleum lands. Secretary of State Bryan warned Carranza that " serious complications and consequences " would result " if the right assumed of destroying property belonging to them is carried into effect." 20 On March 1 , 1 9 1 5 , Carranza issued a decree increasing both the stamp taxes on mining products and the mining franchise taxes. 30 Most of the mining properties in Mexico were in the northern part of the country which was at that time under the control of Villa. The Department of State informed the Carranza government that the United States did not recognize the decree " as having any force in territory outside of the control of Carranza authorities or any application to American-owned mining property located in such territory." 3 1 At the same time, Villa issued a new mining decree providing in substance for the forfeiture of mining rights for the failure to maintain a certain 27

World Peace Foundation, Pamphlets, Vol. I X , 1916, N o . 5, pp. 403-405. Foreign Relations of the United States, 1915, pp. 872-873. This subject is discussed in detail in the chapter on oil, infra, pp. 332-336. 29 Bryan to Consul Canada, January 13, 1915, ibid., 1915, p. 871. 30 Ibid., 1915, p. 900. 28

81

P- 9'S-

The Secretary of State to Special Agent Silliman, M a y 18, 191s, ibid., 1915,

SOCIAL

REVOLUTION

amount of work thereon. 32

AND NATIONALISM

329

T h i s decree brought an immediate

and urgent protest from Secretary of State B r y a n , who asserted that, since compliance with the decree under existing conditions was practically impossible for large numbers of Americans and other foreign mine owners, the government of the United States could not but regard the decree as confiscatory in its nature. 3 3 In addition to the above measures, various steps taken b y the Carranza régime and other factions in Mexico to increase taxes and place other burdens on private property brought energetic protests from the Department of State.

Likewise, the failure of

the C a r r a n z a régime to establish order and to protect foreign lives and property caused great anxiety at Washington and brought forth repeated demands that more energetic action be taken in this respect.

T o these demands, Carranza's Minister for Foreign

Affairs merely replied that it w a s " a well known principle of international jurisprudence that every foreigner who leaves his own country to settle in another and create interests there ipso facto accepts both the good and the bad fortune of the country in which he has settled."

H e called attention to the difficulties

of protecting foreigners during the existing struggle in M e x i c o , and stated that his government had observed " with not a little surprise the unbecoming

tone of

Department " on the subject.

the telegrams of

the

State

34

I n addition to the above complaints, the continuance of raids across the border and the attacks of bandits on American citizens in Mexico were a constant source of irritation between the two governments and made it extremely difficult for President Wilson to withstand the widespread and growing demand for armed intervention.

However, after the withdrawal of the American forces

from Mexico, Carranza seems to have made a genuine effort to restrain Villa and suppress bandits.

A t any rate, conditions along

the border eventually quieted down, and reports of against American citizens became far less frequent.

outrages

On M a r c h 3 ,

1 9 1 7 , H e n r y P. Fletcher presented his credentials as Ambassador 32 33 34

Ibid., 1915, p. 894. Bryan to Special Agent Carothers, April 7, 1915, ibid., 1915. p. 895. Acuña to Special Agent Silliman, June 30, 1915, ibid., 1915, p. 720.

330

SOCIAL REVOLUTION A N D

NATIONALISM

of the United States at Mexico City. On March n , 1917, Carranza was elected President of Mexico by an overwhelming vote, and on M a y 1, 1917, he was inducted into office. While the Pershing expedition was still in Mexico, Carranza convened a " Constituent Congress " at Querétaro to draft a new constitution. On February 5, 1917, this Congress promulgated a new constitution which sought to make effective all of the social and economic aims of the revolution. T o this end, elaborate provisions were included dealing with agrarian reform, nationalization of petroleum deposits, limitations on the ownership of real property by foreigners in Mexico, labor legislation, and religious and educational reforms. Most of these provisions were contained in the celebrated Article 27, the adoption of which initiated a vigorous diplomatic controversy with the United States that lasted for more than a decade. Article 2 7 sought, among other things, to achieve the following objectives: ( 1 ) to improve the economic condition of the native peón by giving him land to cultivate; (2 ) to bring the exploitation of petroleum under the direct control of the government; (3) to reduce the burden of diplomatic interposition by curtailing the legal capacity of foreigners to own property; (4) to effect a more even distribution of national wealth by breaking up large estates and monopolistic enterprises. According to the traditional notions of national sovereignty and the equality of states, no particular exception could be taken to these nationalistic aspirations. Under those notions, each state is presumed to be free to direct its own economic and social life as it chooses, and to be at liberty to fix the rôle that foreigners may play in that life. In the case of Mexico, however, a major difficulty presented itself in the fact that the program mapped out at Querétaro could not be carried out without severely upsetting the status quo, and this could not be done without adversely affecting the property interests of foreigners. T h e existing distribution of national wealth had been largely brought about under a régime of laws that had as good a claim to legitimacy as did the régime that replaced it. T h e majority of the property rights and enterprises of foreigners had been " legally " acquired, i.e., acquired in accordance with the legal

SOCIAL REVOLUTION AND NATIONALISM

331

concept of private property then dominant in the community, and, in fact, throughout the civilized world.

T h i s concept was

likewise recognized in the international legal order built up for the protection of international trade and intercourse.

T h a t order

upheld the notion of the sanctity of private property rights, even as against acts of governments.

It made no provision for a radical

change in the conception of property b y a particular state or a redistribution of national wealth except by w a y of just compensation to dispossessed owners. It was clearly to the advantage of the United States and other nations having extensive foreign interests to preserve the existing notion of the sanctity of private property intact.

On the other

hand, a drastic alteration of the local distribution of wealth was of much greater immediate interest to the revolutionary régime in Mexico than was the preservation of the international economic order.

T h e program mapped out under Article 27 involved a

vital clash of interests for which the existing international legal system afforded no ready solution.

T h e underlying problem was

essentially an economic one and involved the question how a presumably necessary economic

and

social

reform

could

be

brought about in the national sphere without unduly upsetting the international economic system as embodied in the existing body of international law.

Unfortunately, under traditional notions of

the legal process, these underlying economic and social problems were presumed to be largely irrelevant to the legal issues involved. How these issues were dealt with by the two governments is shown in the succeeding chapters.

CHAPTER

XI

OIL AMONG the primary issues raised by the revolutionary program embodied in Article 27 of the Constitution of 1917, the nationalization of petroleum deposits received the first attention and generated the greatest amount of heat in the diplomatic relations between the United States and Mexico. T h e obvious purpose of that article was to break the control of foreign interests over the extremely prosperous oil industry of Mexico and to vest that control in Mexicans. This was part of the general program of making the Mexican people economically independent. However, there were grave obstacles in the w a y of effecting this purpose. B y the existing system of Mexican law under which the industry had achieved its growth, petroleum deposits on privately owned land belonged to the owners of the surface. Under that system, extensive tracts of land had been acquired by foreign interests for petroleum exploitation and immense sums of money had been invested in the industry. Acquisition of existing properties through purchase or expropriation as a " public utility " was out of the question because of the enormous value of the properties. A direct confiscation of the properties was equally out of the question under the prevailing conception of the sanctity of private property and the certainty of foreign intervention if anything of the kind were attempted. T h e program finally incorporated in the Constitution of 1917 sought to achieve the aim by altering the fundamental law which fixed the nature of the right to exploit subsoil deposits. Under the existing legal system, the oil companies were not exploiting petroleum as concessionaires from the Mexican government but as private owners or lessees of the land. A different system prevailed in regard to the exploitation of subsoil deposits of gold and silver and other metals. Back in the colonial era, 332

OIL

333

the primary interest of the Spanish crown in its American colonies had been in the exploitation of these precious and semiprecious metals. Accordingly, in making grants of land in New Spain, the common practice had been to reserve the exploitation of these subsoil deposits to the crown. 1 Petroleum was, of course, at that time of no commercial value and was very probably not even thought of in this connection. For a number of years prior to the attainment of independence by Mexico, the laws of the Spanish crown governing the acquisition of real property in the colonies separated the ownership of the subsoil deposits of known value from the ownership of soil and reserved the former to the crown. When Mexico became independent in 1821, this system was continued, and the right to exploit metaliferous deposits on private land could only be obtained by concession from the government. Such rights were freely granted by the government to foreigners as well as natives, but, being in the form of concessions, were subject to revocation by the government, as well as to the payment of royalties. The bituminous deposits (coal, petroleum, and other hydrocarbons), being of no particular commercial value, received very little attention in the colonial era. The first mention of them is found in a Spanish ordinance of May 22, 1783, which reserved to the crown not only metals but also " half minerals, bitumen or mineral t a r " (jugos de la tierra).2 This was later modified by a law of December 26, 1789, which provided that " stone-coal, not being a metal or semi-metal, or any of the things included in the laws and ordinances which declare mines the property of the Royal Patrimony, shall be free for working, . . . such mines should belong to the proprietor of the lands in which they are." 3 While the wording of the various mining ordinances of 1 Under the old Roman law, subsoil deposits had belonged to the owner of the surface, subject to the payment of a tenth of the product to the government. See J. A. Rockwell, Compilation of Spanish and Mexican Laws, p. 124. 2 This is literally translated as " juices of the earth." See Halleck, Collection of Mining Laws of Spain and Mexico, p. 230. 3 Ibid., p. 336. A subsequent law of August 18, 1790, declared that anyone might explore for coal on another's land subject to liability to pay for the resulting damages. The owner was given a preferential right to work coal mines so dis-

334

OIL

Spain was broad, it seems clear that, in issuing them, the crown was only concerned with the reservation of deposits that were of commercial value at that time. Petroleum was not of this class. When Mexico became an independent state, the Spanish system of mining laws was continued unchanged. N o new mining code was adopted until 1884. B y that time, coal deposits were of commercial importance because of the construction of railroads in Mexico, but there was little interest in petroleum. In 1881, an American resident of Mexico had denounced some two thousand acres of oil-bearing public lands in the state of Vera Cruz, but subsequent attempts to exploit the oil on this property failed, as did various other attempts made between the years 1885 and 1898. A large number of lakes and springs of petroleum had been discovered in Mexico, but these had been regarded more as a misfortune than an asset to property since they interfered with agricultural development. 4 However, there was a growing demand for asphalt and for kerosene. In 1882, the question arose for the first time in the Mexican courts as to whether coal deposits belonged to owners of the surface or whether they could be denounced in the same manner as metals. T h e Mexican Supreme Court decided that the Spanish law of 1789 referred to above, which had excluded coal from the mining ordinance of 1783, had applied only to the Spanish Peninsula, and that the right to exploit coal was controlled in Mexico by the ordinance of 1783 which assimilated coal to metaliferous deposits. However, this decision did not remain long in force, for in 1883 a constitutional amendment was adopted conferring power on the federal congress to promulgate mining and commercial codes, and in 1884 a new mining code was adopted which specifically declared that deposits of mineral fuels and bitumens generally, including petroleum, were the exclusive property of the owner of the surface land, who was authorized to develop and encovered, but if he did not exercise his right it was given to the discoverer.

(Ibid.,

P- 3 4 0 . ) 4 See The Mexican Year Book, 1920-1921, pp. 290-320. It is stated that in many districts the Indians were compelled to set fire to petroleum lakes several times a year in order to keep horses and cattle from bogging down in the overflow.

OIL

335

joy them without the necessity of any denouncement or concession from the state.5 In 1892 (still before the exploitation of petroleum had been undertaken successfully in Mexico), the mining code was revised, but no change was made in regard to the exploitation of mineral fuels and petroleum. Article 4 of this law provided that " the owner of the land may freely work without a special franchise (concesión) in any case whatsoever, the following mineral substances; mineral fuels, oils and mineral waters." 4 Commercial production of petroleum in Mexico did not begin until after 1900. In that year, two American citizens, E. L. Doheny and C. A. Canfield, made a prospecting trip through the territory west of Tampico in search of oil, and subsequently purchased a tract of 283,000 acres. In December, 1900, the Mexican Petroleum Company was organized with a capital of $10,000,000 and additional tracts of land were purchased. Drilling commenced in 1901, but it was not until 1904, after the expenditure of considerable capital in development, that the company struck its first gusher. Thereafter various other companies entered the field, including one organized by the Pearson interests (British). 7 The full development of the petroleum industry in Mexico, however, was still awaiting the perfection of the automobile. These foreign pioneers in the petroleum industry acquired their petroleum rights in the only way then available under the 5

T h e f o l l o w i n g translation of Article 10 of the mining l a w of 1884 is g i v e n

on p. 13

of

in Mexico

City,

Proceedings May

" A R T I C L E VI.

of

the

14, 1923

United

Stales-Mexican

Commission

( D e p a r t m e n t of S t a t e , W a s h i n g t o n ,

Convened 1925):

Foreigners m a y acquire mining properties on such t e r m s and

w i t h such limitations as the l a w s of the Republic grant them the c a p a c i t y to acquire, o w n and transfer ordinary p r o p e r t y . . . . " ARTICLE X. o w n e r of

formality of e n t r y

may

therefore

d e v e l o p and e n j o y them,

( d e n u n c i o ) or special a d j u d i c a t i o n :

" SUBDIVISION whether

T h e f o l l o w i n g substances are the exclusive p r o p e r t y of the

the land, w h o

4. . . . salts f o u n d

surface or s u b t e r r a n e a n ;

w a r m or medicinal w a t e r .

without

the

. . .

on the s u r f a c e , fresh and salt

water,

petroleum and gaseous springs, or springs

of

In order to d e v e l o p these substances the o w n e r of the

land shall subject his operations to all rules and orders of a police n a t u r e . " 8

Ibid., p. 13.

7

F o r a history of the early d e v e l o p m e n t of the petroleum i n d u s t r y see

Mexican

Year Book,

1 9 2 0 - 1 9 2 1 , p p . 290-320.

The

OIL

336

M e x i c a n l a w , i.e., b y p u r c h a s e or lease of the s u r f a c e land.

Under

those l a w s the acquisition of the surface land g a v e to the owner perpetual right to the subsoil deposits of petroleum.

I n 1909, after

the development of the M e x i c a n petroleum industry b y foreign capital had been proceeding for several years, another revision of the mining law w a s enacted which preserved the prior distinction between petroleum and metaliferous deposits, leaving the former as the exclusive p r o p e r t y of the owner of the soil. 8

N o further

legislation affecting petroleum w a s adopted until the Constitution of 1 9 1 7 . W h e n the foreign oil companies acquired their oil rights in M e x i c o , therefore, the M e x i c a n l a w on the s u b j e c t w a s reasonably clear.

U n d e r that law, petroleum deposits belonged to the owner

of the s u r f a c e and the government had no control over them, except through the exercise of the police power and the taxing power.

F u r t h e r m o r e , under the existing system of landownership

in M e x i c o as embodied in the Constitution of 1857, private property w a s given the usual g u a r a n t i e s found in all civilized states in the nineteenth c e n t u r y .

So long as the law remained in this form,

it w a s obvious that the government could not obtain possession of the petroleum deposits except through the w h o l l y method of expropriation for " public u t i l i t y . "

impractical

H e n c e t h e Queré-

t a r o C o n v e n t i o n set a b o u t to change the existing law b y separating the ownership of petroleum deposits f r o m the ownership of the s u r f a c e and vesting the former in the nation, as in the case of metaliferous deposits. 9 8 Article II of this law provided as follows: " T h e following substances are the exclusive property (propiedad exclusive) of the owner of the soil:

" 1. Ore bodies or deposits of mineral fuel, of whatever form or variety. " 2. Ore bodies or deposits of bituminous substances." (Proceedings United States-Mexican Commission, op. cit., p. 13.)

of

the

The pertinent provisions of Article 27 were as follows: " The ownership of lands and waters comprised within the limits of the national territory is vested originally in the Nation, which has had, and has, the right to transmit dominion thereof to private persons, thereby constituting private property. " Private property shall not be expropriated except for reasons of public utility and by means of indemnification. " The Nation shall have at all times the right to impose on private property 9

OIL

337

T h e provisions of the new Constitution effecting this change made no exception in terms regarding rights that had already become vested in private individuals under prior laws. However, such rights seemed to be protected by the general guaranties in the Constitution that private property should not be taken except for reasons of public utility and on the payment of compensation, and that no retroactive law should be enacted. Such an interpretation received support from the repeated assurances given b y the Carranza government to the government of the United States that there was no intention of confiscating existing property rights of foreigners and that all such rights would be fully protected in accordance with international law. It has already been pointed out that Carranza, as a preliminary step to de facto recognition by the United States in 1915, had given assurances that his government would continue to see that the lives and property of foreigners in Mexico were " respected in such limitations as the public interest may demand as well as the right to regulate the use of natural resources, which are susceptible of appropriation, in order to conserve them and equitably to distribute the public wealth. " There is vested in the Nation the direct dominion of all the minerals or substances which in veins, layers, masses or beds constitute deposits whose nature may be distinct from the constituents of the lands, such as minerals from which there may be extracted metals . . . ; petroleum and all hydrocarbons, solid, liquid or gaseous. . . . " In the cases to which the foregoing two paragraphs refer the dominion of the Nation is inalienable and imprescriptible and concessions shall be granted by the Federal government to private parties or civil or commercial companies constituted in accordance with Mexican laws only on condition that regular works be established for the exploitation of the resources in question and that the requirements provided by law be complied with. " Legal capacity to acquire ownership of lands and waters of the Nation shall be governed by the following provisions: " 1. Only Mexicans by birth or by naturalization and Mexican companies have the right to acquire ownership in lands, waters and their appurtenances, or to obtain concessions to develop mines, waters or mineral fuels in the Republic of Mexico. The Nation may grant the same right to aliens, provided they agree before the Department of Foreign Affairs to be considered Mexicans in respect to such property, and accordingly not to invoke the protection of their Governments in respect to the same, under penalty, in case of breach, of forfeiture to the Nation of the property so acquired. In a strip of 100 kilometers along the borders and fifty along the coasts, for no reason shall aliens be able to acquire direct dominion over lands and waters."

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accordance with the practices established by civilized nations and the treaties in force between Mexico and other countries." 10 Again, on January 19, 1 9 1 6 , Secretary of State Lansing had telegraphed Special Agent Silliman as follows: Department reliably informed de facto authorities contemplate issuing a decree providing for the nationalization of petroleum, which, if we are correctly informed, would affect most seriously the interests of numerous American citizens and other foreigners who have heretofore engaged in the business of producing and selling petroleum in Mexico. Point out to General Carranza in unequivocal terms the dangerous situation which might result from the issuance of any decree of a confiscatory charactcr. Request that definite action be delayed until Department shall have had opportunity to examine proposed decree, and mail copy thereof to D e p a r t m e n t . 1 1

On making inquiry of the appropriate department of the Mexican government, Silliman had been informed that the government was not contemplating such a decree. 12 On instructions from the Department he had taken the matter up with Carranza personally and had received the same assurance from him. 13 Notwithstanding these assurances, the Wilson administration at Washington displayed considerable uneasiness over the intentions of the revolutionary government in regard to existing vested rights. 14 On January 22, 1 9 1 7 , Secretary Lansing protested against certain provisions adversely affecting American interests which he understood were to be included in the proposed new constitution. While he did not specifically mention petroleum, he stated that the government of the United States could not, of course, " acquiesce in any direct or indirect confiscation of foreign10

Foreign Relations of the United States, 1915, p. 764. ibid., 1916, p. 752. 12 Ibid., p. 753. 13 Silliman to Lansing, January 26, 1916, ibid., p. 755. 14 That it was the intention of the framers of Article 27 to nationalize petroleum deposits already vested in private companies seems clear from statements made by members of the Convention which were subsequently quoted by the government in its defense against a suit for amparo brought by the Texas Company. Thus one member of the Convention stated that " our purpose was to put an end immediately to all intervention which individuals had unduly been exercising as to petroleum and other hydro-carbons, regarding themselves as owners thereon when in reality such ownership belongs to the nation." (Reply of the Mexican Executive in the amparo proceedings instituted by the Texas Company.) 11

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owned properties in Mexico." 15 T h e following day, Lansing protested against a bill which he understood had been introduced in the Mexican Congress with Carranza's sanction, providing that a special concession would thereafter be necessary for the exploitation of petroleum on private property, and giving existing owners only a preferential right for one year to obtain such concessions. Lansing feared that under this bill the Mexican government would be able to impose such restrictions by way of taxation regulations and royalties as would be equivalent to nationalization of the industry at the expense of existing owners, " whose property would apparently be liable to practical confiscation." 16 However, on February 20, 1917, the Mexican Minister for Foreign Affairs assured Ambassador Fletcher that the legislation emanating from the new Constitution with respect to property rights would, in his opinion, " in no wise prejudice present property rights." A t the same time he called attention to the article of the new Constitution which provided that no laws could be made retroactive. 17 T h e new Constitution was promulgated on February 5, 1917, and came into force on M a y 1, 1917. On June 6, 1917, Secretary Lansing again felt it necessary to protest against the apparent intention of the Mexican government to apply certain of its provisions retroactively. After referring to the repeated assurances given by the Carranza government that there would be no confiscation of American property, Secretary Lansing called attention to a decree issued by Carranza on April 13 increasing export taxes on petroleum, and stated that this decree and its regulations appeared " to contemplate the confiscation of American rights by retroactive legislation." 13 Again, on August 2, 1917, Ambassador Fletcher informed President Carranza that American oil interests were concerned regarding the attitude of the Mexican government with reference to the nationalization of the industry, but Carranza 1 5 Lansing to Parker, January 22, 1917, Foreign Relations Slates, 1917, p. 947. 1 6 Lansing to Parker, January 23, 1917, ibid., p. 1062. 17 18

Fletcher to Lansing, February 20, 1917, ibid., p. 1044. Lansing to Fletcher, June 6, 1917, ibid., p. 1067.

of the

United

34°

OIL

assured him in reply that they need not be so concerned, and that " it was not the intention of the Mexican Government to take over properties now in exploitation." 19 However, it was not long before Carranza gave evidence of his intention to apply the nationalization program to existing property rights. The first move in this direction was made on February 19, 1918, under the guise of a tax measure issued under a resolution of the Mexican Congress conferring upon the President express powers in fiscal matters. On that date Carranza issued a decree purporting on its face to be a measure levying taxes on the petroleum industry. This measure was so worded, however, that existing owners of oil properties could not have complied with it without impliedly admitting that the ownership of subsoil deposits of petroleum belonged to the government. For example, Article 4 of this decree purported to assess properties worked by surface landowners with an " annual rental - " of five pesos per hectare and also with a royalty of 5 per cent of the products, in cash or in kind, as might be determined in each case by the Minister of Finance. Article 14 required landowners and lessees to register their oil properties with the government within three months. At the expiration of that time, all oil properties not registered were to be considered vacant (open to denouncement by third persons). The denouncement and exploitation of such properties were to be governed by regulations to be issued at a later date.20 As the oil companies foresaw that compliance with this decree would be construed as a recognition of ownership of subsoil deposits by the nation, they refrained from registering their properties as required. On April 2, 1918, Ambassador Fletcher, on instructions from the Department of State, presented a long protest against this decree. The United States could not, said Fletcher, " acquiesce in any procedure ostensibly or nominally in the form of taxes or the exercise of eminent domain, but really 19

Fletcher to Lansing, August 2, 1917, ibid., p. 1072. A translation of this decree is printed in the Report of the Hearings of the Fall Committee, Investigation of Mexican Affairs, Sen. Doc. No. 285, Vols. 9 and 10, 66th Cong., 2d Sess., 1920, p. 3120. 20

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resulting in confiscation of private property and arbitrary depredation of vested rights." T h e seizure or spoliation of property " at the mere will of the sovereign and without due legal process fairly and equitably administered " had always been regarded as a " denial of justice " and as affording a basis for diplomatic interposition. T h e government of the United States reserved opinion as to whether the amount of the tax was confiscatory, but objected to the principle involved in the apparent attempt at separation of surface and subsurface rights under the decree. It appeared that the decree was an effort to put into effect paragraph 4 of Article 27 of the Constitution " by severing at one stroke the ownership of the petroleum deposits from the ownership of the surface." N o provision had been made for the payment of just compensation " for such arbitrary divestment of rights," nor was there any indication that the separation of mineral rights from the surface was a matter of " public utility," upon which the right of expropriation depended. Under the circumstances, it became the function of the government of the United States " most earnestly and respettfully to call the attention of the Mexican government to the necessity which may arise to impel it to protect the property of its citizens in Mexico divested or injuriously affected by the decree above cited." In conclusion, Fletcher stated as follows: The investments of American citizens in the oil properties in Mexico have been made in reliance upon the good faith and justice of the Mexican Government and Mexican laws, and m y Government can not believe that the enlightened Government of a neighboring Republic at peace and at a stage in its progress when the development of its resources so greatly depends on its maintaining good faith with investors and operators, whom it has virtually invited to spend their wealth and energy within its borders, will disregard its clear and just obligations towards them. 2 1

At the same time, the British and French governments filed similar protests against the decree in question. On M a y 18, 1918, a decree was issued extending the time of registering properties under the prior decree to July 31, 1918. On that date, another decree was issued embodying practically the 21

Printed in the Official Bulletin, Washington, June 29, 1918.

342

OIL

same provisions as the decree of February 19. On August 8, 1918, regulations were issued governing the denouncement of lands not registered under the prior decree. On August 12, 1918, Secretary Lansing called the attention of the Mexican government to the fact that no reply had been received to the protest of the United States under date of April 2, 1918, and expressed again the concern which the government of the United States entertained as to the possible effect of the various decrees above mentioned upon the vested rights in Mexico of American citizens in oil properties. Lansing again referred to " the necessity which may arise, in order to protect the properties of its citizens in Mexico, divested or injuriously affected by the said decrees, to impel the United States to protect the properties of its citizens." 22 On August 1 7 , 1 9 1 8 , the Carranza government replied at length to the protests of April 2 and August 13 against the decrees in question. In this note, Carranza found no difficulty in summoning to his aid various general principles from which the legality of his decree could be logically deduced. Thus, it was argued that the right of decreeing taxes was an " attribute of internal sovereignty " and the regulation of property rights an " attribute of territorial sovereignty," and hence neither of these questions could be made the basis of diplomatic representation. "The Mexican Government," said Carranza, " has not recognized and will not recognize that any country has the right to interfere in any form in its internal affairs nor even of protesting against acts exclusively within the exercise of its sovereignty." Obviously the major premise here advanced was broad enough to cover practically any act of the government involving foreign property in Mexico. Another premise advanced by Carranza was that his government could not consent to any measure whatsoever that would place American citizens in a more favored situation than that of Mexicans in their own country. This, said the note, was " but the simple application of the principle of the equality of nations frequently forgotten by( strong governments in their relations with weaker countries." In fiscal matters, this principle 2 2 Printed in The Mexican Oil Producers in Mexico, p. 16.

Oil Controversy,

compiled by the Association of

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" amounts to a declaration of equality of nationals and foreigners in the collection of taxes decreed by the public power of a country." It was further asserted that the decree in question could not be said to embody a " denial of justice " as alleged b y the United States, since the oil companies affected thereby had not resorted to local remedies. The Mexican tribunals alone were capable of passing judgment upon the equality of distribution of taxation. In conclusion, Carranza assured the United States that his government would endeavor " to respect the dignity and the interests of foreigners " and that it had " no idea of passing regulations designed to molest a friendly country or its citizens." These might " w i t h all confidence, continue to rely upon the laws and institutions of the Republic." 2 3 In the meantime, apparently as a result of the numerous protests that had been received, Carranza had issued another decree modifying the decree of July 31, 1918, to the extent of providing that petroleum properties would not be open to denouncement b y third persons, even though the owner had not complied with the prior decrees. It was provided, however, that no new work could be undertaken on such properties until after the execution of a contract with the Department of Industry, Commerce and Labor granting the right to develop the subsoil. These contracts were to regulate the right to petroleum development until such time as the organic law contemplated by Article 27 of the Constitution should determine the method of granting concessions. 24 A t the same time, amparo proceedings were instituted by the oil companies in the Mexican courts against the carrying out of the prior decrees. In view of these developments, the Department of State made no further demands at that time, but merely sought to rebut some of the logical arguments advanced by Carranza in his note of August 17, 1918. Against the contention that foreigners were not entitled to a privileged status over natives, the Department asserted that, under international law, " every nation has certain minimum duties to perform with regard to the treatment of foreigners, irrespective of its duties to its own citizens," and in 23

Perez to Fletcher, August 17, 1918, ibid., p. 18.

24

Ibid., p. 48.

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default of such performance, it was the right of a foreign government to enter protest. N o t the least of such duties was " to rerefrain from measures resulting in confiscation of the vested property rights of foreigners acquired in good faith in accordance with the laws of the country in which the property is situated." T o resist unjust encroachments upon their rights by the governmental agencies of their country, Mexican citizens could resort " to the orderly processes by which the free people of a democracy may assert their will in respect of governmental policies," but Americans in Mexico had no such recourse. Aside from judicial remedies, they were limited to an appeal to the protection of their own government. Without such an appeal they were " clearly placed in a position of disadvantage as compared with citizens in Mexico who have such political and legal remedies at their command to right their wrongs." T h e Department of State was willing to concede that local remedies should as a rule be exhausted, but it denied that diplomatic representation was always premature if made on behalf of American citizens before they had exhausted their local remedies. T h e adoption of the petroleum decree had indicated " a settled purpose " of the Mexican government to put into execution Article 27 of the Constitution " without opportunity for full and free consideration, and without regard to the legitimately acquired rights of American citizens." Such action might have been irreparable in its results, and was within the power of the Mexican government to prevent. Accordingly, friendly representations could hardly be said to be out of place, even before specific injuries had arisen. 25 During 1919, the Department of State filed various protests with the Mexican government against the reported denouncement by third persons of properties of American oil companies that had not been registered in accordance with the petroleum decrees. T o these protests the Mexican government merely replied that the oil companies had only themselves to blame, since they could have complied with the decrees under protest and with such reservations as they deemed necessary to protect their interests. Furthermore, asserted the Mexican government, " the 25

Acting Secretary Polk to Ambassador Fletcher, December 13, 1918, ibid., p. 20.

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protests of a foreign nation cannot suspend the effect of the laws issued by the Government of another nation." 20 In reply, the Department of State pointed out that, in its defense against the amparo proceedings brought by the Texas Company, the Mexican government had taken the position that protests filed with registrations of oil property had no legal effect except as provided by the Mexican laws. 27 T h e Carranza government also sought to enforce compliance with the petroleum decrees b y withholding drilling permits from those companies which had failed to register their properties. This action brought vigorous protests from the Department of State. On August i , 1919, the Mexican Department of Industry, Commerce and Labor offered to grant drilling permits to companies that had not manifested their properties in accordance with the decree of July 31, 1918, providing such companies would obligate themselves to abide by the provisions of whatever petroleum law the Mexican Congress might enact in the future. T h e oil companies naturally declined to agree to any such proposal, and the Department of State filed another strong protest against the withholding of drilling permits. In the meantime Carranza had been losing his power in Mexico, and in April, 1921, his government was overthrown b y a revolution under the leadership of General Obregôn. T h e new régime was very anxious to obtain the recognition of Washington, and on October 26, 1920, a note was dispatched giving assurances that it had no intention of confiscating vested property rights. " Mexico " said the note, " cannot but feel deeply grieved over the charge that she intends or has ever intended to disavow her obligations." Both the Provisional President (de la Huerta) and President-elect Obregôn had " on repeated occasions publicly declared that Mexico will respect all rightful claims duly proved as such, submitting herself to the recognized principles of international law." T o this end the new government was prepared to establish a joint arbitration commission to pass upon claims of foreigners arising from damages occasioned during the revolution. 28

Perez to Summerlin, May 29, 1919, ibid., p. 23.

27

Acting Secretary Phillips to American Embassy, June 16, 1919, ibid., p. 23.

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A cause for deep national resentment, said the note, was the often repeated assertion that Mexican laws were of a retroactive and confiscatory nature and that Mexico's national program was based on a policy of confiscation. This assertion was " entirely groundless." " N o t one square yard of land has been confiscated in Mexico, not a single right of property has been annulled." Nor did the Mexican government intend to deviate from this fundamental policy. Both President de la Huerta and President-elect Obregon had made repeated public declarations that Article 27 of the Constitution " is not and must not be interpreted as retroactive or violative of valid property rights." 2 8 Shortly afterward, President Wilson was defeated at the polls by Harding, and on the latter's inauguration Charles Evans Hughes became Secretary of State. T h e new administration was not impressed with the repeated promises of Obregon, and decided to withhold recognition until some specific assurances had been given regarding vested property rights. T h e policy of the Harding administration toward Mexico was set forth in the following statement by Secretary Hughes on June 7, 1921: T h e f u n d a m e n t a l q u e s t i o n w h i c h c o n f r o n t s t h e G o v e r n m e n t of the U n i t e d S t a t e s in c o n s i d e r i n g its r e l a t i o n s w i t h M e x i c o is the s a f e g u a r d i n g of p r o p e r t y rights

against confiscation.

M e x i c o is f r e e t o a d o p t a n y p o l i c y w h i c h

she

p l e a s e s w i t h r e s p e c t t o h e r p u b l i c l a n d s , b u t she is n o t f r e e to d e s t r o y w i t h out compensation valid titles w h i c h h a v e been obtained b y A m e r i c a n citizens under Mexican laws.

A c o n f i s c a t o r y p o l i c y s t r i k e s n o t o n l y at the i n t e r e s t s

of particular individuals, but at the foundations of international intercourse, f o r it is o n l y o n t h e b a s i s o f the s e c u r i t y of p r o p e r t y v a l i d l y possessed u n d e r the laws existing at the time of its acquisition, that commercial

transactions

b e t w e e n t h e p e o p l e s o f t w o c o u n t r i e s a n d the c o n d u c t of a c t i v i t i e s in h e l p f u l cooperation are possible.

Secretary Hughes stated that the retroactive application of Article 2 7 " would constitute an international wrong of the gravest character and this government could not submit to its accomplishment." In view of the existence of this provision in the Constitution, it was obviously necessary, he said, that the purposes of the Mexican government in regard thereto should be definitely set 28

Pesqueira to C o l b y , October 26, 1920, printed in International

June, 1923, N o . 187, p. 409.

Conciliation,

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forth. T o this end, he proposed a treaty of amity and commerce expressly stipulating that the provisions of the Mexican Constitution would not be retroactively applied to the prejudice of American citizens having valid property rights in Mexico. H e believed that if the Mexican government did not in fact contemplate a confiscation policy, there could be no possible objection to the signing of such a treaty. 29 Shortly after this proposal was made, the Supreme Court of Mexico, on August 31, 1921, rendered its decision in the amparo proceedings brought by the Texas Company of Mexico. T h i s case involved the petroleum rights of a piece of land owned b y a Mexican who had transferred it to the T e x a s Company of Mexico for exploration and development of the petroleum deposits. T h e T e x a s Company had refrained from complying with the petroleum decrees of 1918, and a Mexican citizen had thereupon denounced the property and had obtained a concession from the Mexican government to exploit the petroleum deposits. T h e purpose of the suit was to vacate this denouncement. T h e lower courts had upheld the action of the Mexican government as being in accordance with the Constitution of 1917, and the case had been taken to the Supreme Court of Mexico on an appeal by the T e x a s Company. In its argument, the company relied mainly upon Article 14 of the Constitution of 1917 prohibiting the adoption of retroactive laws. T h e Supreme Court decided in favor of the T e x a s Company and granted its petition for an amparo. In its decision, the court held that Article 14 of the Constitution prohibiting retroactive laws did not apply to the Constitution itself, but that Section 4 of Article 2 7 referring to petroleum was not retroactive since it did not " damage former rights legitimately acquired." T h e court then announced its theory of acquired rights which subsequently became known as the doctrine of " positive acts." T h e mining codes of 1884, 1892, and 1909, said the court, granted the owner of land the right freely to explore for and exploit oil without the necessity of a permit from any authority, and also allowed him to transmit such rights in the same manner as other property rights. 28

Statement of Secretary of State Hughes, June 7, 1921, ibid., p. 416.

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In the case at bar, the owners of the property had fixed and received a higher price for the land from the company because the purpose of the acquisition had not been to cultivate the surface but to explore for oil. Hence the rights granted to the surface owner by the mining code of 1909 had been converted into " acquired rights," which were not intended to be affected by the petroleum provisions of Article 27. Accordingly, the issuance by the government of a concession based upon the decree of August 8 , 1 9 1 8 , " which presupposes the direct ownership by the nation of the petroleum existing in the subsoil of the Republic," constituted a retroactive application of the law and a dispossession of the rights of exploration and exploitation already transferred to the Texas Company. This was a violation of the guaranties set forth in Article 1 4 and Article 27, paragraph 2 of the Constitution. In other words, the court held that the ownership of petroleum deposits under the mining code of 1909 did not become vested until some definite step had been taken to exercise the rights to the subsoil deposits, such as the transfer of these rights to an oil company for exploitation. The court further held that the nationalization program of Article 27 had not really been intended to affect such rights, but only to apply to property on which no " positive act " had been taken to reduce the petroleum to possession. There is nothing to show that the framers of Article 27 had ever thought of this " positive acts " theory in connection with the nationalization of petroleum deposits. On the contrary, the Mexican government presented evidence to the court indicating that the delegates at Queretaro had definitely intended to vest the ownership in the nation of all subsoil deposits on privately owned land, whether capital had been expended on the exploitation of such deposits or not. Furthermore, it seems clear that the framers of the mining laws of 1884, 1892, and 1909, under which the oil companies had acquired their properties, had not entertained any thought of making the ownership of subsoil deposits dependent upon " positive acts." There is nothing in the previous actions of the administrative or judicial officials of Mexico to indicate that they held such a theory, at least as applied to petroleum. Hence

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the decision of the Mexican Supreme Court in the Texas Company case seems to be a clear example of judicial legislation under the guise of interpretation of constitutional provisions. This decision offered in effect a compromise between the conflicting interests of the oil companies and the Mexican government. On the one hand, it reserved to the companies the lands on which they had already expended capital for exploitation. On the other hand, it made it possible for the government to obtain control over large areas of lands which had come into possession of oil companies or oil speculators and were being held for sale or possible exploitation at some time in the future. The primary difficulty in this compromise from a practical standpoint lay in the determination of " positive acts." In view of the nature of oil deposits and the enormous amount of capital required for the installation of storage and transit facilities, the oil companies had naturally made every effort to acquire reserve lands for future exploitation when their existing holdings should be exhausted. Perhaps between 80 and 90 per cent of the lands owned by oil operators were in this category. In many cases there was nothing specific to show that this land had been acquired for petroleum purposes; often it was not even known that any petroleum would be found after exploration. The " positive acts " doctrine of the Texas Company decision was satisfactory to the oil companies from the standpoint of the lands actually being exploited, but left the control over their reserve lands in a state of uncertainty. Had President Obregon accepted the treaty of amity and commerce proposed by Secretary Hughes, the nationalization program of Mexican government could not have been put into effect as regards any land then owned or leased by American citizens. Obregon strenuously resisted the proposal to enter into any agreement on the subject as a condition of recognition. He argued that such a proposal imparted to recognition a conditional character, and that this would seriously impair the sovereignty of the nation. Mexico's existence and sovereignty had " never been questioned for a hundred years," and consequently, argued Obregon, his government had the right to be recognized by other na-

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tions " according to established usage, that is, without any other condition than that of its stability and its capacity to meet its international obligations and keep its promises." Furthermore, he asserted, the demand for a treaty as a condition precedent to recognition was quite needless in respect to the interests sought to be protected by it, in view of his repeated declarations that he would shape his policy " according to the dictates of law and morality." H e referred to the nonretroactive character of the petroleum provisions of Article 27 as defined by the Supreme Court in the Texas Company case and in four other cases subsequently decided, and held that this question might be considered " already settled " by the voluntary act of the Mexican government. 30 However, Obregon's repeated assertions that American property owners in Mexico would be fully protected made little impression on Secretary Hughes. These assertions were always made in general terms, and it seemed that Obregon was endeavoring to avoid a definite expression of Mexico's obligation in this respect that would prevent an application of Article 2 7 to foreign owned petroleum lands, at least to the extent permitted by the decision in the Texas Company case. It was apparent that in his repeated promises to respect " all rights of private property acquired prior to M a y 1, 1 9 1 7 , " he was mentally excluding the right to the subsoil deposits of surface owners who had not performed positive acts before M a y 1, 1917. Secretary Hughes, on the other hand, had no intention of accepting any definition of acquired rights that would exclude lands privately owned by American citizens before M a y 1 , 1 9 1 7 . He refused to be satisfied with general promises about the protection of property rights that did not expressly state an intention to include all rights vested under the former petroleum laws as those laws had been understood and enforced at the time the property was acquired. He recalled to President Obregon's attention that former President Carranza had given " the most explicit personal promises, on the basis of which his government was recognized," and that these 30

President O b r e g o n ' s Message t o the M e x i c a n Congress, S e p t e m b e r 2, 1 9 2 1 ,

translation printed in International

Conciliation,

June, 1923, N o . 187, p. 420.

OIL

3Si

promises had been ignored and the execution of a confiscatory policy had been decreed. While General Obregon had from time to time made statements " manifestly intended to be reassuring," Secretary Hughes pointed out that these statements had been " of a personal nature," and that there had been " an utter absence of appropriate governmental action binding Mexico to afford that protection of valid titles which it seems to be admitted that the Government of the United States is entitled to ask." Hughes admitted that in some cases confiscatory measures had been altered or postponed by the new régime in Mexico, but asserted that in numerous other cases there had continued to be " flagrant disregard of property rights of American citizens." Hence, he said, it was neither strange nor inappropriate that, in the light of prior events, the United States should expect some better assurances " than any mere temporary abstention from the prosecution of the confiscatory policies which had been officially avowed. 31 Regarding the decision of the Mexican Supreme Court in the Texas Company case and four subsequent cases upholding " acquired rights," Secretary Hughes merely stated that these decisions were " inadequate to protect American rights against a retroactive and confiscatory application of the Mexican Constitution." 3 2 However, Obregon was determined to avoid signing the treaty proposed by the United States as a condition of recognition. He frankly admitted that President Carranza had, by his petroleum decrees of 1918, violated the promises he had made to the American government, but asserted that the new régime had repudiated Carranza's policies, as shown by the suspension of the Carranza decrees and the decision of the Supreme Court in the T e x a s Company case. 33 Nevertheless, Obregon declined to enter into any binding agreement on the subject, and President Harding accordingly withheld recognition. Eventually the deadlock was broken by the holding of the so31

Summerlin to Pani, April 20, 1922; Correspondence released for publication

b y the Department of State, M a y 8, 1926, reprinted by Association of Producers of Petroleum in Mexico, p. 27. 32

Summerlin to Pani, August 3, 1922, ibid., p. 47.

33

See Pani to Summerlin, M a r c h 31, 1923, ibid., p. 56.

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called " Bucareli " Conference during the summer of 1923.34 This conference clearly brought out that the only real point of difference between the two governments on the oil question was in regard to the reserved lands on which the exploitation of petroleum had not been undertaken before M a y 1, 1917. The American Commissioners insisted that, under the clear provisions of the laws of 1884, 1892, and 1909, ownership of petroleum deposits had been vested in the owners of the surface lands without regard to whether any " positive act " toward exploitation had been taken or not. T h e y asserted that the government of the United States sought no special advantage for its citizens in Mexico but was merely seeking to define the principles which it regarded as the essential basis for economic cooperation between nations. T h e principles of justice recognized b y international

law must

prevail

b e t w e e n n a t i o n s in o r d e r t h a t t r a d e a n d c o m m e r c e m a y flow w i t h a f e e l i n g of c e r t a i n t y b e t w e e n d i f f e r e n t peoples.

W e a r e c e r t a i n t h a t there m u s t b e a

belief on b o t h sides of the b o r d e r t h a t business c a n be c o n d u c t e d w i t h s a f e t y and security. W e a r e not here t o i n t e r f e r e in the d o m e s t i c or internal policies of M e x i c o , b u t w e c a n n o t a v o i d calling a t t e n t i o n t o the n e c e s s i t y of p u t t i n g i n t o o p e r a t i o n those p r i n c i p l e s w h i c h the e x p e r i e n c e of m a n k i n d h a s d e m o n s t r a t e d a r e essential to f r i e n d l y i n t e r c o u r s e a n d c o m m e r c e b e t w e e n n a t i o n s . 3 5

T h e Mexican Commissioners, on the other hand, maintained the position advanced by the Supreme Court in the Texas Company case that owners of the surface land had not really acquired any rights to petroleum deposits unless they had taken some definite action toward the exploitation of those deposits. In support of this position the Mexican Commissioners developed an elaborate legal theory. They sought to establish a distinction between an " acquired right " and a " mere expectation," classifying unexercised rights to exploit petroleum in the latter category and asserting that the legislative form of ownership of these rights could 34

So called because the conferences took place at N o . 85 Bucareli Street, in

Mexico City.

T h e reports of the meetings have been published in pamphlet f o r m

by the Department of State under the title " Proceedings of the United

States-

Mexican Commission Convened in Mexico C i t y , M a y 14, 1923 " (hereinafter cited as Proceedings, 35

1923).

Proceedings,

1923, p. 3.

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be changed at the will of the government without violating the rule against retroactivity. They asserted that, under the general principle governing the ownership of minerals in Mexico, " all the subsoil belongs to the Nation " and only the laws of 1884, 1892, and 1909 had given to the owner of the surface the right to make use of the subsoil without the necessity of a concession from the government. From this proposition they deduced the conclusion (already implicit in the premise) that by virtue of these laws the Mexican nation had made a " donation of property to individuals." In order to make this donation complete, it was necessary, in accordance with the provisions of the Civil Code of Mexico, " to have the acceptance of the donee, thereby giving the donation an irrevocable character." This acceptance had to be shown by some positive act looking toward the exploitation of the subsoil rights. This adroit theory was merely an enlargement upon the " positive acts " doctrine already advanced by the Mexican Supreme Court and rejected by Secretary Hughes. There is nothing on record to show that either the framers of the mining codes or of the Constitution of 1 9 1 7 had ever thought of any such reason for their actions regarding petroleum deposits. The Commissioners of the United States declined to accept this hypothesis and maintained their position that, under the clear provisions of the mining codes, the subsoil deposits of petroleum had been vested in the owners of the surface without any necessity for signifying an acceptance of a " donation." As a result of the discussion, the Mexican Commissioners made a statement of the policy which the Obregon government proposed to follow in regard to petroleum properties. They stated that the Mexican executive would respect and enforce the principles of the decisions of the Supreme Court in the Texas Company case and four other cases, declaring that Article 27 of the Constitution was not retroactive in respect to persons who had performed some positive act manifesting their intention to make use of or obtain the oil under the surface such as drilling, leasing, entering into any contract relative to the subsoil, making investments of capital in lands f o r the purpose of obtaining the oil in the subsoil, carrying out works of exploitation and exploration of the subsoil

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and in cases where f r o m t h e c o n t r a c t r e l a t i v e t o the subsoil it appears t h a t t h e g r a n t o r s fixed a n d r e c e i v e d a p r i c e higher t h a n would h a v e been paid for the s u r f a c e of t h e land b e c a u s e it w a s p u r c h a s e d f o r t h e p u r p o s e o f looking for oil and exploiting s a m e if f o u n d ; and, in general, p e r f o r m i n g o r doing a n y o t h e r positive a c t , o r m a n i f e s t i n g an intention of a c h a r a c t e r similar t o those heretofore described.39

T h e same rights enjoyed by such owners would also be enjoyed by their legal assignees or those persons entitled to the rights to the oil. T h e Commissioners asserted that the above statement " has constituted and will constitute in the future the policy of the Mexican Government " in respect to lands upon which " any of the above-specified acts have been performed or in relation to which any of the above specified intentions have been manifested," and the Mexican government would grant drilling permits for such lands, subject only to police regulations, sanitary regulations and measures for public order and the right of the Mexican government to levy general taxes. Regarding owners of land who had not performed a positive act, the Mexican Commissioners stated that their government would grant to such owners preferential rights to exploit the subsoil deposits to the exclusion of third parties, but this action was not intended " to constitute an obligation for an unlimited time on the part of the Mexican Government." T h e American Commissioners, on behalf of their government, merely stated that they reserved " all the rights of the citizens of the United States in respect to the subsoil under the surface of lands in Mexico owned by citizens of the United States, or in which they have an interest in whatever form owned or held, under the laws and Constitution of Mexico in force prior to the promulgation of the new Constitution, M a y i , 1917, and under the principles of international law and equity." T h e Mexican Commissioners stated that they recognized the right of the United States to make " any reservation of or in behalf of the rights of its citizens." 37 36

It will be observed that the definition of positive acts given in this statement

w a s broader than the definition given b y the Supreme C o u r t in the Texas C o m pany case. 37

Proceedings,

1923, pp. 4 7 - 4 9 -

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A s a result of the understanding reached at this conference regarding oil and agrarian legislation, the government of the United States finally extended recognition to the Obregon government. Thereafter the oil controversy remained dormant until the end of 1925. In the meantime, Calles had succeeded Obregon as President of Mexico, and at Washington, Calvin Coolidge had become President and Frank B. Kellogg Secretary of State. In the fall of 1925, the Mexican Congress undertook the adoption of laws regulating the application of the agrarian and petroleum provisions of Article 27 of the Constitution of 1917. When the terms of the proposed agrarian law were brought to the attention of the Department of State, it was seen that they departed in several important particulars from the statement of Mexican policy made at the Bucareli Conference. This fact led Secretary Kellogg to draft his famous Aide Memoire to the Mexican Minister for Foreign Affairs (November 17, 1925), in which he referred to the clouds he perceived to be gathering on the horizon of friendship between the two nations. 38 This document ushered in another long and laboriously argued exchange of notes that lasted for a year and resulted in another deadlock. Before considering the main points at issue in this correspondence, it will be well to note the provisions of the petroleum law adopted by the Mexican Congress on December 26, 1925. T h a t law undoubtedly departed in several important particulars from the position outlined by the Mexican Commissioners at the Bucareli Conference which had resulted in the recognition of the Obregon government. Article 1 provided that the ownership of hydro-carbon deposits was vested in the nation. Article 2 provided that this ownership was " inalienable and imprescriptable," and only with the express authorization of the federal executive, granted as provided in this law and its regulations, might the exploitation of petroleum be carried out. Article 4 limited the 3 8 This and the subsequent notes exchanged between the two governments from November, 1925, to March, 1926, are printed in Sen. Doc. No. 96, 69th Cong., 1st Sess., under the title " Rights of American Citizens in Certain Oil Lands in Mexico." Additional correspondence on the subject between July and November, 1926, was printed in a pamphlet issued by the State Department in 1926 under the title "American Property Rights in Mexico."

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granting of concessions to Mexicans and Mexican corporations, and to foreigners who, in addition to complying with the provisions of the law, also complied beforehand with the provisions of Article 2 7 of the Constitution regarding the renouncement of the right to resort to the diplomatic protection of their governments. As this article only referred to individual foreigners and not to corporations, it seemed to imply that such corporations could not obtain concessions under any circumstances. Article 7 specified the conditions for issuing " exploration concessions," the duration of which was limited to a term of from one to five years. Article 8 dealt with " exploitation concessions." This article provided that the life of such a concession should be not more than thirty years, although at its termination a concessionaire who had fulfilled all his obligations might obtain a new one covering the same zone. Article 13 laid down rules regarding the recognition of denouncements made under the Carranza decrees of 1918 which had been suspended by the Obregôn government. Articles 14 and 15 were of special interest from the standpoint of foreign property holders. These articles were as follows: A r t . 14.

T h e following rights will be confirmed without any cost w h a t e v e r

and b y means of concessions granted in c o n f o r m i t y with this l a w : I. T h o s e arising f r o m lands in which w o r k s of petroleum exploitation w e r e begun prior to M a y i , 1 9 1 7 . II. Those

arising f r o m contracts made b e f o r e

May

1,

1917, by

the

superficiary or his successors in title for express purposes of exploitation of petroleum. T h e confirmation of these rights m a y not be granted for more than 50 y e a r s c o m p u t e d in the case of Sec. I f r o m the time the exploitation w o r k s b e g a n , and in the case of Sec. I I f r o m the date upon which the contracts were made. I I I . T o owners of pipe lines and refiners w h o are at present operating b y v i r t u e of a concession or authorization issued by the D e p a r t m e n t of I n d u s t r y , C o m m e r c e and L a b o r , and as to w h a t has reference to said concessions or authorization. A r t . 15.

C o n f i r m a t i o n of the rights to which A r t s . 12 and 14 of this law

refer, shall be applied for within the period of one year, c o m p u t e d f r o m the date of the going into effect of this l a w ; that date having passed, said rights shall be considered as renounced and the rights, confirmation of w h i c h has not b e e n applied for, shall h a v e no effect w h a t e v e r against the Federal ernment.

Gov-

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Article 1 7 set forth the grounds upon which concessions might be forfeited.

One such ground was the failure to undertake actual

work as provided in other sections of the law. 39 I t seems clear that this law was not in accord with the announced policy of the Obregon government.

Under that policy,

petroleum lands on which any positive acts had been taken were regarded as excluded from the nationalization program of Article 27 and hence the ownership of the subsoil deposits presumably remained with the owner of the surface as provided by the prior mining laws.

It was only in connection with " untagged " land

that the Obreg6n government had maintained its right to apply Article 2 7 .

Under the petroleum law of 1 9 2 5 , however, the Calles

government purported to nationalize all petroleum lands whether covered b y " acquired rights " as defined by the Supreme Court or not.

T h i s law asserted the ownership of the nation in all

petroleum lands and provided that no work could be carried out on such lands except under a concession from the government. T h e only w a y in which owners of rights acquired before M a y 1, 1 9 1 7 , were recognized was by the provisions that such owners might be granted a fifty-year concession providing they applied therefor within a period of one year.

However, even this recog-

nition appeared to be illusory, so far as foreign oil companies were concerned, since Article 4 of the law seemed to prohibit the granting of concessions to foreign corporations under any circumstances.

Again, the definition of positive acts implied in Article

1 4 of the law seemed to be much narrower in its scope than the definition given b y the Mexican Commissioners at the Bucareli Conference.

Furthermore, no provision of any kind was made for

the owners of petroleum rights acquired before M a y 1, 1 9 1 7 , who had not taken any steps toward the exploitation of the subsoil. Naturally enough, the adoption of this law brought a protest from the oil companies and from the American government.

The

oil companies objected strenuously to the idea of being compelled to take a fifty-year concession in place of an ownership in fee. 89 A translation of this law issued by the Mexican Embassy at Washington is printed in Charles Wilson Hackett, The Mexican Revolution and the United States, 1 9 1 0 - 1 9 2 6 . World Peace Foundation Pamphlets, Vol. I X , No. 5.

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T h e y argued that if the right of the Mexican government to substitute a

fifty-year

concession for an ownership in fee were once

admitted, there would be nothing to prevent the government from subsequently altering the duration of this concession to a shorter term and perhaps eventually withdrawing it altogether.

Since a

concession was conceived as in the nature of a license, the w a y seemed to be open to the Mexican government to hedge such concessions about with conditions and to subject them to fiscal measures that would not have been recognized in regard to property owned in fee.

Furthermore, since the fifty-year period w a s to be

computed from the time when exploitation w a s first begun (or, in the case of land leased for the express purpose of exploitation, from the date on which the contract was m a d e ) , it was feared that in m a n y instances the time remaining would not be sufficient for the complete extraction of the oil deposits.

F o r these reasons the

majority of the foreign oil companies decided not to comply with the provisions of the law b y applying for concessions, and in this position they were supported by their governments. T h e principal objections raised b y the government of

the

United States to the petroleum law of 1 9 2 5 were set forth in detail b y Ambassador Sheffield in a note to the M e x i c a n Minister for Foreign Affairs on J a n u a r y 8, 1 9 2 6 .

These objections and the

answers subsequently made to them b y the M e x i c a n government were as follows: 1. This law fails by far to give full recognition to rights lawfully acquired prior to the adoption of the present Mexican constitution when Mexican law expressly provided that the owner of surface lands owned also the subsoil deposits of petroleum. I n reply to this objection, the Mexican government resorted to the old argument that " a right m a y not be acquired except b y its exercise," and so long as the owner of the surface did not exploit the subsoil, he could not acquire ownership of anything whatsoever which might be found therein. m o d i f y a " status "

A subsequent l a w might

created b y a previous law without being

retroactive. 2. The law fails . . . to respect decisions of the supreme court of Mexico in the interpretation of the very constitutional provisions which the law is

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a p p a r e n t l y designed to regulate in that those decisions hold in effect that such constitutional provisions are not retroactive and inapplicable to those w h e t h e r corporations or individuals w h o p e r f o r m e d a n y one of a number of what are d e n o m i n a t e d as " p o s i t i v e a c t s , " w h e r e a s : ( a ) T h i s l a w (art. 4 ) seems to provide that foreign corporations, regardless of the time w h e n they l a w f u l l y acquired rights and irrespective of w h a t e v e r " positive a c t s " they p e r f o r m e d , will not be able to obtain recognition of those

rights.

In reply, the Mexican government asserted that, from a careful reading of the law, foreign corporations owning acquired rights were not covered by Article 4 but by Article 14 of the law, according to which such corporations would have their acquired rights " confirmed." 2. ( b ) T h a t foreign individuals, without regard to the time when they l a w f u l l y acquired rights and irrespective of w h a t e v e r " positive acts " t h e y p e r f o r m e d , will be deprived of such rights unless they renounce their citizenship w i t h respect to such rights (art. 4 ) .

T o this the Mexican government again replied that foreign corporations possessing acquired rights were dealt with by Article 14 and not by Article 4. 2. ( c ) T h a t the number of " positive acts " recognized shall be m u c h less than these enumerated in the decisions mentioned (art. 1 4 ) .

The Mexican government replied that the " positive acts " enumerated in the Texas Company decision were all confined to cases in which petroleum exploration work had begun or contracts had been entered into for that purpose, and that these were precisely the cases specified in Article 14. 2. ( d ) T h a t even as to foreign individuals w h o p e r f o r m e d " positive acts " recognized in the law and made the renouncement mentioned confirmation of their rights m u s t be applied for within a y e a r or such rights will be f o r f e i t e d (art. 1 5 ) .

In reply to this observation, the Mexican Minister for Foreign Affairs stated that Article 15, far from injuring aliens possessing acquired rights, was " beneficial to them inasmuch as it gives them the right to have a title emanating from the government; and it is to their advantage, moreover, that the said government

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should have full knowledge of all such acquisitions, to which the same provisions will not be applied which are to govern subsequent acquisitions, it being obvious, moreover, that no person can in any w a y be injured by applying for confirmation of his rights." J u s t how the exchange of a title in fee simple for a limited concession from the government was " beneficial " to the owner was not made clear in the Mexican reply, nor was it made clear how such an exchange could be regarded merely as a " confirmation " of vested rights. 3. I n apparent contradiction to the statements made by the Mexican commissioners in the conference held in Mexico City in 1 9 2 3 as to the past, present, and future policy of the Mexican Government to grant preferential rights to the owners of the surface or persons entitled to exercise their preferential rights to the oil in the subsoil who have not performed a " positive a c t , " the law in question seems to give no preferential rights to such owners or persons.

In reply, the Mexican government stated that the Mexican Commissioners at the Bucareli Conference had expressly said that their declaration regarding preferential rights of surface owners who had not performed positive acts was not intended to establish an obligation for an indefinite period.

T h i s indicates that, by the

law of 1 9 2 5 , the Calles government fully intended to deny any preference whatever to owners of petroleum land who had not performed " positive acts." Ambassador Sheffield then called attention to the provisions in the law requiring foreigners to waive their nationality and to agree not to invoke the protection of their governments so far as their property rights were concerned, and stated that his government had " persistently declined to concede that such a waiver can annul the relation between an American citizen and his government or that it can operate to extinguish the obligation of his government to protect him in the event of a denial of justice." In reply, the Mexican Minister for Foreign Affairs stated that the law did not require a renouncement of nationality but merely a renouncement of protection in so far as the properties acquired b y foreigners were concerned.

H e called attention to " the power

enjoyed by all countries to impose upon aliens such conditions

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and requirements as they may believe expedient in order to allow them to acquire real property." A s for the objection raised by the government of the United States that the law was contrary to the " pledges solemnly given " by the Mexican Commissioners in 1923, the Mexican Minister for Foreign Affairs replied that the promises made by the former executive were not binding on the Mexican Congress. 40 Thus the Calles government impliedly admitted that the law of 1925 repudiated the understandings reached at the Bucareli Conference on which the recognition of the Obregón government had been based. This repudiation was sought to be excused on the ground that, since the understandings had not been embraced in a treaty, they were not binding on a subsequent administration in Mexico. There is no need to analyse in detail the subsequent correspondence on this phase of the controversy, since that correspondence is largely devoted to an elaboration of the points already raised. T h e argument finally narrowed down to the question whether the compulsory exchange of a vested title to subsoil property for a government concession to use the property during a limited term of years was a " confirmation " of title. Secretary Kellogg insisted that it was not, and that the very use of the word " confirmation " in this respect was misleading. T h e operation, he said, would be nothing but a forced exchange of a greater for a lesser estate. T h a t a statute so construed and enforced was retroactive and confiscatory was not, in the opinion of his government, open to any doubt whatever. It struck at the very root of the system of property rights that lay at the basis of all civilized society. It deprived the term " vested " of any real meaning by limiting it to a " retrospective significance." 41 Señor Saenz argued, on the other hand, that the proposed change in the form of subsoil rights did in fact confirm previous titles, " because the granting of the concession will have no other foundation than respect for the former." In other words, the 4 0 The above is taken from Sheffield to Saenz, January 8, 1926, and Saenz to Sheffield, January 20, 1926, printed in Sen. Doc. So. 96, op. cil., pp. i j and 15. 4 1 Kellogg to Saenz, July 31, 1926, American op. cit., p. 4.

Property

Rights

in

Mexico,

36a

OIL

government concession was a " c o n f i r m a t i o n " because it would not have been granted to a foreign corporation at all except for the prior title. He also argued that " to determine the period of the future exercise of a right is not to proceed retroactively, because it does not modify the effects already consummated of a right, but only applies a rule for future use." He added that no real injury would accrue from such an exchange, since a government concession was quite as good as a private title for the purpose of exploiting the subsoil, and that if such a concession expired before the deposits were exhausted an extension might be obtained. 42 In conclusion, the Mexican government insisted that diplomatic representations were out of place until some concrete case of injury should arise under the law. T h e deadlock over the petroleum law of 1925 was still unbroken when Ambassador Morrow presented his credentials as Ambassador at Mexico City on October 29, 1927. In the meantime, the majority of the oil companies had refrained from applying for concessions, and the time limit for such application had officially expired. B y the terms of the law of 1925, the oil properties for which no concession had been granted became subject to forfeiture on January 1, 1927, but the Mexican government made no move in this direction. However, the Department of Industry, Commerce and Labor thereafter proceeded to cancel drilling permits which had been granted before January 1, 1927, to companies that had failed to comply with the petroleum law. T h e Mexican Petroleum Company, one of the companies affected by this move, thereupon filed a suit for amparo in the Mexican courts, asking that Articles 14 and 15 of the petroleum law of 1925 be declared unconstitutional and that the Department of Industry, Commerce and Labor be restrained from canceling its drilling permits. T h e lower courts decided in favor of the company and this decision was confirmed by the Supreme Court on November 17, 1927. T h e Supreme Court stated in its 4 2 Saenz to Kellogg, February 12, 1926, Sen. Doc. No. Q6, op. cit., p. 34. As a matter of fact, the law of 1925 was quite ambiguous on this point, and was as readily susceptible of the construction that no extension beyond the fifty-year period would be granted to a foreign company.

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opinion that the period of one year allowed for application for confirmation of rights " could not have run as against the complainant company, because if that confirmation cannot be granted for more than fifty years . . . and if this limitation implies a partial restriction or partial loss of the rights which its titles, granted prior to M a y 1, 1917, may confer upon the companies, it is evident that said application could not have been made b y the complainant without curtailment of something which belongs to its estate, so long as such application would imply submission to the aforesaid limitation." T h e court further held that a " confirmation " of a right was an express recognition of it, whereas the restrictions provided in Article 14 of the petroleum law modified and did not confirm existing rights. T h e court declared that the limit of fifty years as a condition attached to the confirmation of existing rights was unconstitutional, and that the action of the Department of Industry, Commerce and Labor in revoking drilling permits of the companies violated the guaranties afforded b y Articles 14, 16 and 27 of the Constitution. 43 On December 26, 1927, President Calles sent a message to Congress recommending that the petroleum law be amended to conform to the above decision of the Supreme Court. On January 3, 1928, a law was enacted amending Articles 14 and 15 of the petroleum law of 1925. This law provided that the rights mentioned in Article 14 of the previous law should be confirmed without cost by means of the " issuance " (instead of the granting) of confirmatory concessions. It was further provided that such confirmations should be without limit of time when made in favor of the owners of the surface; and, in the case of rights based on contracts, the confirmation should last for the duration of the contract. 44 B y this law, the principal objection of the oil companies against exchanging a right in perpetuity for one of limited duration was removed. Among the questions still remaining was whether the application for a concession by a foreign corporation 43

1925,

Documents

Relating

to the Petroleum

Law

of Mexico

p. 21.

44

Department

of State Press Release, January 12, 1928.

of December

26,

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364

would affect its rights to hold property already acquired in the prohibited zones. On January 9, 1928, the representative in Mexico City of the Huasteca Petroleum Company addressed a letter to the Secretary of Industry, Commerce and Labor inquiring whether " the request of confirmatory concessions by a foreign company implies any surrender of rights acquired prior to M a y 1, 1 9 1 7 . " In its reply, the Department of Industry, Commerce and Labor referred to the report of the Committee of the Chamber of Deputies accompanying the proposed amended law, which had stated in part as follows: T o c o n f i r m a r i g h t is t o r e c o g n i z e it e x p r e s s l y in i t s w h o l e e x t e n t a n d w i t h t h e c o n d i t i o n s i n h e r e n t t h e r e i n in s u c h a w a y t h a t n o r e s t r i c t i o n w h a t e v e r c a n b e e s t a b l i s h e d w i t h r e g a r d t o t h e e x t e n t o r c o n d i t i o n s o f t h e r i g h t w h i c h is c o n f i r m e d b e c a u s e a n y r e s t r i c t i o n in t h e s e p a r t i c u l a r s i m p l i e s a m o d i f i c a t i o n o f t h e r i g h t c o n f i r m e d a n d a r e t r o a c t i v e a p p l i c a t i o n of t h e l a w c o n t r a r y

to

a r t i c l e 1 4 o f t h e c o n s t i t u t i o n s i n c e t h e r i g h t s , c o n f i r m a t i o n o f w h i c h is o r d e r e d b y a r t i c l e 1 4 of t h e p e t r o l e u m l a w , a r e p r i o r t o t h e g o i n g i n t o e f f e c t o f

our

f u n d a m e n t a l law.

T h e Department of Industry, Commerce and Labor concluded that " in view of the consideration which preceded the bill of a m e n d m e n t " a petition for a confirmatory concession by a foreign company did not imply the renouncement of any rights acquired before M a y 1, 1917, " s u c h confirmatory concession operating as the recognition of rights which will continue in force subject only to police regulations." 45 In due course, President Calles issued new regulations to conform to the amendment made in the petroleum law. T o remove the objection raised by the government of the United States that the definition of "positive a c t s " implied in the law of 1925 and its regulations was narrower than that given by the Mexican Commissioners at the Bucareli Conference, the new regulations contained the exact language used b y the Mexican Commissioners in describing positive acts. Furthermore the draft concession attached to the amended regulation contained no Ca'lvo clause, but merely provided that any attempt to transfer the concession to an alien or a foreign government should be null and of no 45

Department

of State

Press Release,

J a n u a r y 13, 1928.

OIL effect. 44

36s

This draft concession set forth that the confirmation

" operates as a recognition of rights acquired which shall continue in force, legal possession of which it confers administratively." T h e d r a f t also stated that " this confirmatory concession is not subject to forfeiture, and only obligates the concessionaire to comply with all regulations covering police and safety in the w o r k s . " " Following the issuance of these amended regulations, the Department of State on March 28, 1928, issued the following statement: T h e Petroleum Regulations just promulgated b y President Calles constitute executive action which completes the process beginning with the decision made by the judicial branch of the Mexican Government on N o v e m b e r 17, 1927, and followed by the enactment of the new Petroleum L a w b y the legislative branch on December 26th last.

Together, these steps, voluntarily

taken b y the Mexican Government, would appear to bring to a practical conclusion discussions which began ten years ago with reference to the effect of the Mexican Constitution and laws upon foreign oil companies.

T h e Depart-

ment feels, as does Ambassador Morrow, that such questions, if any, as m a y hereafter arise can be settled through the due operation of the

Mexican

administrative departments and the Mexican courts.

T h u s it appears that the Department of State intends to take no further steps to bring about the recognition b y the Mexican government of the exclusive ownership in the subsoil deposits acquired b y Americans and American companies before M a y 1, 1917. In the final settlement of the issue, the Mexican government maintains its position that the direct ownership (dominio directo) of petroleum deposits belongs in the nation. It likewise maintains its "positive a c t s " doctrine, although its final definition of positive acts is very broad. On the other hand, foreign owners of subsoil rights who had shown any intention before M a y 1 , 1 9 1 7 , to exploit those rights are permitted to carry on such exploitation without limitation as to time. T h e y are not compelled to sign a Calvo clause renouncing the protection of their governments, but at the same time they are not permitted to transfer their concessions to other aliens. In place of ownership 4 8 See the article by J. Reuben Clark, Jr., on " The Oil Settlement with Mexico," Foreign Affairs (New Y o r k ) , July, 1928, p. 600. « Ibid., p. 613.

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in fee, they have an unlimited concession that is not subject to forfeiture. The desire of the Mexican government to vest the ownership of the subsoil in the nation appears to have been satisfied, and, at the same time, the foreign companies that acquired petroleum lands for the express purpose of exploiting the subsoil are protected in that purpose. Owners of petroleum lands who made no move toward exploitation before May i , 1917, however, are apparently without any preferential rights. It seems clear that this final settlement represents a compromise between conflicting economic interests rather than a solution derived by purely logical processes from abstract concepts.48 The formal logic produced by both sides was equally good, yet neither side succeeded in maintaining its legal position intact. Eventually both governments achieved in substantial degree the practical aims that had guided them (more or less unconsciously) in the choice of their major premises. On the one hand, the security of vested property rights, so strenuously defended by the United States as a necessary basis of international trade and intercourse, came out of the controversy only slightly damaged. On the other hand, the Mexican government succeeded in its aim of nationalizing petroleum deposits, although this had to be done in such a manner as not to inflict substantial damage on existing producers. Had it been possible to give open and informed attention to the practical aims behind the legal arguments of the two governments it is scarcely conceivable that a decade would have been consumed in finding a satisfactory method of reconciling those aims. 4 8 H o w this compromise may be rationalized under traditional legal concepts is indicated in the article by J. Reuben Clark, Jr., referred to in footnote 45, supra.

CHAPTER XII AGRARIAN

REFORM

PERHAPS the most important factor in the ultimate success of the revolution in Mexico was the promise of agrarian reform. It has already been pointed out that, in spite of the great material prosperity and industrial development that the Diaz régime had brought to Mexico, the economic condition of the peasant class had grown steadily worse. A large proportion of this class had been reduced to a state of peonage, and the remaining " free villages " were generally possessed of insufficient areas of land for the needs of their members. Under the distribution of land existing in 1910, there appeared to be little hope of improving the economic condition of the Indian and mestizo elements of the population. It was the promise of agrarian reform that gave the revolution its greatest source of strength. 1 The causes that led to the poverty of the Mexican peón at the close of the Diaz régime are deeply imbedded in Mexican history and in the racial makeup of the population. It is customary to ascribe their plight almost entirely to the land policy of Diaz, but it seems that this picture has been greatly overdrawn. Undoubtedly there were many irregularities in land distribution during the Diaz régime, and the policy of Diaz clearly favored the property-owning class as against the peasantry. However, a large part of the policy of land distribution followed by that administration had already been incorporated in the organic laws of the country, chiefly by the liberal Juarez régime. Eliminating all of the irregularities that took place under Diaz, Mexico would still have had a serious agrarian problem in 1910. The primary difficulty arose out of the attempt to impose an advanced system of private ownership of property upon a native population accustomed to a feudal system of land tenure. 1 On this general subject see Tannenbaum, The Mexican Agrarian op. cit., Chaps. I - I I I .

367

Revolution,

368

AGRARIAN

REFORM

During the colonial era, the general tendency in land distribution had been toward the creation of large estates. Alongside of these large estates there had persisted a system of communal landholding by native villages that had its origin before the Spanish conquest. These communal landholdings were known as " ejidos." When Mexico became an independent republic in 1821, it borrowed not only its political institutions but also its system of land tenure from European sources. However, the philosophy of individualism that formed the basis of the concept of private property prevailing in the more highly civilized states in the nineteenth century was apparently not well adapted to the character and temperament of the native Indian population. The Indian seemed to prefer his traditional system of communal landholding and to be very slow in adapting himself to the European conception of private property as applied to land. T h e efforts that were made at various times during the nineteenth century to break up communal holdings and establish a class of small landowners were largely unsuccessful. The seizure and distribution of the enormous properties owned b y the Church in the years following 1856 created a large number of small landowners, but these had little conception of private property and readily disposed of their lands to the owners of large estates. In the liberal Constitution of 1857, an effort was made to encourage individual landownership by distributing the communal properties among their actual owners. T h a t Constitution contained a general prohibition against the ownership of land by civil or ecclesiastical corporations. This provision was interpreted to include native communities, and its purpose in regard to such villages was to compel the substitution of private for communal ownership. T h e Diaz administration sought to make this prohibition effective, but the result was not what had been expected. T h e individuals receiving pieces of communal land for the most part failed to develop them, but sold them to the owners of large estates. Aside from this lack of adaptability of the Mexican peasant to a system of individual landholding, there were many other difficulties with the agrarian situation in Mexico during the D i a z

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régime. T h e various forms of land tenure that had been followed during the colonial era and the early years of the Republic had resulted in the utmost confusion in the public records of landownership. There were enormous tracts of land, known as " terrenos baldios," which belonged to the nation, but these lands had never been surveyed nor their boundaries marked out. One of the major items on the program of the D i a z government was the division of these tracts of sparsely populated public land and their sale to private owners. Under a law of 1883, contracts were made with private companies to survey these public lands, and the companies were allowed to retain one-third of the lands surveyed as compensation for their services. B y a decree of M a y 12, 1890, D i a z sought to complete the process of eliminating communal lands by ordering all such lands to be distributed in severalty. A colonization law of 1894 further encouraged the tendencies toward private ownership and the establishment of boundaries. Under this law it became possible to denounce lands that had no registered titles. M a n y small villages lacked such titles and lost their lands under the operation of this law. T h e policy of the D i a z administration to encourage private ownership of land under registered titles and fixed boundaries resulted in the accumulation of large estates and in the loss of land to the members of small communities. His attempt to establish the European system of landholding in Mexico brought great hardship to the peasant class and left a large portion of that class without means of subsistence. These were compelled to become agricultural laborers on the large haciendas. Their wages were low and were usually paid in kind rather than in money. They were compelled to trade at the hacienda store and were perpetually in debt to the owner of the land. In substance, they became indentured workers under a system of peonage. These conditions led to the demand for agrarian reform that was to become the major feature of the revolution of 1910. The agrarian question did not figure to any extent in the revolutionary program of Madero. He himself was a large landowner and was interested primarily in political rather than social and economic reforms. Carranza likewise paid no attention at

37°

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first to the agrarian question, and it was only after he had lost the support of Villa and Zapata that he incorporated agrarian reform in his program as a method of drawing support to his régime. His first statement on the subject was contained in the program of revolution which he issued on December 12, 1914, and which set forth among the aims of the revolution " agrarian laws favoring the formation of small property, dissolving the large estates and restoring to the villages the lands of which they were unjustly deprived." 2 On January 6, 1915, Carranza issued his famous decree of land distribution which was to form the basis of the agrarian provisions of Article 27 of the Constitution of 1917. This decree set about to annul : ( 1 ) all sales of lands and waters of villages that had been made by state or local officials in contravention of the law of June 25, 1856; (2) all concessions or sales by the federal government or its authorities since December 1, 1876, by which communal lands might have been "illegally invaded and occupied " ; and (3) all proceedings relative to survey and demarkation during the same period resulting in " illegal " occupation of communal property. It further provided that villages, having need of lands and not being able to effect their restoration because of lack of title or other reason, should be granted additional land by expropriation from adjoining properties. T h e decree further provided for the establishment of national and local agrarian commissions to carry out the program. Persons who might consider themselves injured by the carrying out of the decree were permitted to have recourse to the courts within a period of one year. Owners of expropriated lands were required, during the same period, to demand indemnities, " which shall be paid to them." 3 T h e adoption of this decree appears to have greatly strengthened the Carranza faction. However, no systematic attempt was made to carry it out, and agrarian reform did not become a subject of diplomatic controversy with the United States until the framing of the Constitution of 1917. T h e provisions of Article 27 of the 1917 Constitution regard2

Quoted from Tannenbaum, op. cit., p. 167.

* Translation printed in Hackett, op. cit., p. 403.

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ing ownership of real property embraced two different objectives: ( 1 ) to distribute land among the landless peasantry, and (2) to reduce the amount and influence of foreign holdings. The second of these objectives will be discussed in the next chapter. The provisions designed to bring about a new distribution of existing holdings were again of two kinds: ( 1 ) those fixing the conditions upon which real property might be owned in Mexico, and (2) those directly providing for a distribution or transfer of existing holdings. Article 27 in general was aimed to bring about a modification of the fundamental notion of private property as applied to land and natural resources. The Constitution of 1857, like all constitutions of republican governments adopted in the era following the decline of absolute monarchy, had been especially solicitous of the rights of the individual as against the power of the sovereign. The theory of private property which it embodied was the strongly individualistic one that was prevalent throughout the civilized world after the French Revolution. As previously pointed out, this theory, owing to the peculiar racial makeup of the Mexican population, had not worked out to the interests of the greater proportion of that population. Article 27, which was designed to correct this condition, abandoned the purely individualistic theory of private property and substituted what is commonly known as the theory of " social use." In this theory, the concept of private property is not destroyed, but the interests of the individual are definitely subordinated to the interests of the group. There is evidence that a similar change has been going on gradually in many countries in the present century, and that this movement has been accelerated since the war.4 In Mexico it was sought to establish the new theory at one stroke by an alteration of the fundamental law of the country. T o provide a logical basis for this change, Article 2 7 started See for example, the new constitutions adopted in Europe, and especially Article 153 of the German Constitution. Translations of these are found in McBain and Rogers, The New Constitutions of Europe (New Y o r k , 1922). Cf. also the agrarian reform programs instituted in various European countries since the war, notably Roumania, Czechoslovakia, Bulgaria, Jugoslavia, Esthonia, and Latvia. 4

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out with the assertion that " the ownership of lands and waters comprised within the limits of the national territory is vested originally in the Nation, which has had, and has, the right to transmit title thereof to private persons, thereby constituting private property." From this major premise it was possible to deduce the right of the government to determine the conditions under which private property might be held. This was specifically stated in the third paragraph, which stipulated that " the Nation [meaning the government] shall have at all times the right to impose on private property such limitations as the public interest may demand." That this right was to be exerted in favor of the group rather than the individual is indicated in this paragraph by the following statement: For this purpose necessary measures shall be taken to divide large landed estates; to develop small landed holdings; to establish new centers of rural population with such lands and waters as may be indispensible to them; to encourage agriculture and to prevent the destruction of natural resources, and to protect property from damage detrimental to society.

In furtherance of this theory, the ownership of subsoil deposits and of surface waters was vested in the nation and was declared inalienable. Only the surface of the land could become the subject of private ownership, and this ownership was limited by the conditions specified elsewhere in the article. The legal capacity to acquire such ownership was sharply restricted in the case of foreigners, religious institutions, charitable institutions, commercial stock companies, banks, and even communities holding property in common. In addition, the article established various general and specific limitations on the right of ownership. Aside from the blanket right to impose (without compensation) "such limitations as the public interest may demand," the federal and state governments were given the power to determine within their respective jurisdictions " those cases in which the occupation of private property shall be considered of public utility." In other words, private owners became liable to be divested of their property at any time for any purpose which the federal or state laws asserted to be " of public utility." The amount of compensation to be paid for such taking was not left to judicial determination

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but w a s rigidly specified, being based on the assessed value of the p r o p e r t y for taxation purposes plus 10 per cent.

T h e amount of

p r o p e r t y w h i c h a n y one individual might hold was likewise subject t o limitation, and the state governments were directed to fix the m a x i m u m a r e a for their respective jurisdictions, and to enforce the disposal of excess holdings under specified conditions as to valuation and methods of p a y m e n t . A r t i c l e 27 also contained specific provisions for the carrying out of agrarian reform.

I t provided that " settlements, hamlets

situated on private p r o p e r t y and communes which lack lands or w a t e r or do not possess them in sufficient quantities for their needs shall h a v e the right to b e provided with them from the adjoining properties, a l w a y s h a v i n g due regard for small landed holdings."

T h e grants of land already made under the decree

of J a n u a r y 6, 1 9 1 5 , w e r e confirmed, and it w a s provided that p r i v a t e property a c q u i r e d for this purpose should be considered as t a k e n for " public u t i l i t y , " i.e., that compensation should be paid therefor at the specified rate.

T h e article reénacted the

provisions of the decree of J a n u a r y 6, 1 9 1 5 , declaring null and void all proceedings or decisions " which m a y have

deprived

properties held b y coowners, hamlets situated on private property, settlements, congregations, tribes and other settlement organizations still existing since the law of June 2 5 , 1 8 5 6 of the whole or a part of their lands, woods and w a t e r s . "

Such communal property

was ordered restored to the villages in accordance with the C a r ranza decree, w h i c h w a s given the force of a constitutional law. T h i s w a s called " restitution."

In addition, those settlements

which could not prove their titles to land were to be given such lands as they might need to reconstruct their former holdings. T h i s was k n o w n as " d o n a t i o n , " and was treated as a matter of " public utility " to be carried out b y the administrative authorities of the government.

F i n a l l y , all contracts and concessions

made b y former governments since 1876 resulting in the " monopoly " of lands, waters and natural resources of the nation b y a single individual or corporation, were declared subject to revision, and the executive w a s authorized to declare those null and void " which seriously prejudice the public interest."

T h i s stipu-

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lation referred to the public lands of the nation and was aimed at the numerous concessions to surveying and colonization companies granted by Diaz. Nothing was said about the payment of compensation to the holders of such concessions. It is clear that the theory of private property specified in this article differs in many particulars from the traditional theory held in the United States and in European countries generally through the nineteenth century. However, under the admitted rule that private property rights are subject to determination by the local laws, the government of the United States was not in a position to object to the adoption of a new system of private property by Mexico, nor did the United States attempt to do so. Neither did it object to the redistribution of existing holdings as a matter of public utility under the program of agrarian reform. It did, however, object both to the manner of carrying out the program and the amount of compensation offered to existing owners. The putting into force of the agrarian provisions of the Constitution led to a serious diplomatic controversy with the United States, lasting over a period of years and running concurrently with the controversy over oil rights. The general attitude assumed by the United States on this subject was consistent with its attitude on the oil question and was in essence a defense of private property rights against any diminution or adverse governmental action except for a public purpose, and then only on the payment of " actual, fair and full compensation." As in the oil controversy, the United States was concerned with upholding the status quo, whereas the Mexican government was faced with the necessity of altering the existing economic order at the expense of " vested interests." Under the absolute conception of private property advanced by the United States, the proposed alteration could only be effected by giving to divested owners equivalent values in money. While the Mexican government was prepared to admit the necessity for some indemnification, it obviously was in no position to carry out extensive agrarian reform on the basis of existing market values paid in cash. The resulting discussion turned largely about the question whether the actual plan of in-

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375

demnification devised by the Mexican government was in accord with the general rules that had been devised for maintaining the security of private property rights. In its defense of the agrarian program, the Mexican government advanced the arguments that the redistribution of land was a necessary social reform ; that in no other way could peace and order be established in Mexico; that land legislation was a matter wholly within the sovereign rights of the nation and foreigners were equally subject to it along with natives; that the expropriation of property was not confiscation where indemnification was contemplated; and that if foreigners sustained any injury by the operation of the laws, they should have recourse to the Mexican courts. It was frankly admitted that foreign interests would suffer in the application of the agrarian program, and that in the haste to put the program into effect, many irregularities and illegal acts had occurred. It was asserted, however, that, as compared with the humane purpose of the legislation and the fact that its inauguration had brought peace to the country, the relatively small amount of injury to American propertyholders resulting from these conditions should not be permitted to stand in the way of the reform. Thus, in the Hughes-Pani correspondence of 1921-192 2, the Mexican Minister for Foreign Affairs made the following statement: If it is true, then, that the proceedings b y which grants and restorations of commons have been made have partaken, in general, of the asperities inherent in the revolutionary impulse that engendered them and, on some occasions — needs must confess it — even in form somewhat illegal, thus making more lamentable the damages suffered b y the great properties affected, it also is true that all this, satisfying in an expeditious w a y a popular craving always denied, contributed to the reestablishment of peace, and that, the complete solution of the agrarian problem, b y means of proceedings strictly legal and softened by a broad spirit of conciliation, will play a most important role in the definite solidification of peace. 5

The government of the United States admitted the necessity of agrarian reform in Mexico and asserted no intention of standing s Pani to Summerlin, M a y 24, 1922, Reprint of Correspondence Exchanged between tke American Embassy at Mexico City and the Mexican Foreign Office, op. çU., p. 44-

AGRARIAN

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REFORM

in the way of it, but insisted that it should not be carried out in such a manner as to affect adversely any property rights which American citizens had acquired in accordance with Mexican laws. In this case, as in the petroleum dispute, the underlying motive of the Department of State appears to have been the maintenance of the general rule of security of private property rights which is regarded as an essential basis for international trade and intercourse. Thus, in a note to Señor Pani on August 3, 1922, Secretary Hughes stated the position of his government as follows: I h a v e n o t e d M r . P a n i ' s d i s c u s s i o n of the M e x i c a n a g r a r i a n p r o b l e m a n d I f u l l y a p p r e c i a t e the d i f f i c u l t i e s w h i c h t h a t p r o b l e m i n v o l v e s .

I am

also

d e e p l y sensible o f t h e i m p o r t a n t p u b l i c p o l i c y t h a t is s o u g h t t o be p r o s e c u t e d in s e c u r i n g e q u i t a b l e d i s t r i b u t i o n those w h o have been impoverished.

of

lands and adequate

opportunities

for

B u t I k n o w o f n o r e a s o n , or right, f o r

t h e p r o s e c u t i o n of t h i s p o l i c y in a m a n n e r w h i c h d e p r i v e s A m e r i c a n c i t i z e n s of valid titles w i t h o u t the p a y m e n t of just compensation.

I n other words,

w h e n A m e r i c a n c i t i z e n s h a v e m a d e t h e i r i n v e s t m e n t s in r a n c h e s , g r a z i n g l a n d s a n d o t h e r real p r o p e r t y u n d e r t h e l a w s of M e x i c o , w i t h a s s u r a n c e s of a d e q u a t e p r o t e c t i o n , t h e y a r e e n t i t l e d t o t h a t p r o t e c t i o n a n d no g e n e r a l

considerations

of p o l i c y can b e i n v o k e d t o j u s t i f y d e s p o i l i n g t h e m of w h a t is r i g h t f u l l y theirs. T h e p u b l i c p o l i c y t o w h i c h M r . P a n i r e f e r s s h o u l d be c a r r i e d o u t o n l y in a c cordance with the f u n d a m e n t a l conceptions of justice. I t w o u l d s e e m to be c l e a r t h a t it is n o t w i t h i n the p r o v i n c e of

lawful

e x p r o p r i a t i o n e i t h e r t o v a l u e p r o p e r t i e s u p o n a n i n a d e q u a t e b a s i s or t o t e n d e r c o m p e n s a t i o n in s t a t e o r f e d e r a l b o n d s w i t h o u t a s s u r e d m a r k e t v a l u e .

Com-

p e n s a t i o n c a n n o t be a n y t h i n g short of a c t u a l , f a i r a n d f u l l c o m p e n s a t i o n . "

T h e dispute over the expropriation of lands for ejidos soon narrowed down to the question of the adequacy of the compensation offered. T h e Carranza decree of January 6, 1915, had contained a vague promise of indemnification, but had made no definite provision therefor. Article 2 7 had set the taxation value plus 10 per cent as the basis for indemnification. Since taxation values in Mexico were notoriously lower than market values and were fixed by administrative officers, this basis of indemnification could hardly be regarded as providing an exchange of equivalent values, even if compensation were paid at the time of the taking. 0

Mexico

Reprint City

of Correspondence and the Mexican

Exchanged

Foreign

between

the American

Office, pp. 49-30.

Embassy

at

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However, the Mexican government was not even in a position to pay cash indemnities on the basis of the taxation values. Instead, by a decree issued on January 10, 1920, and its regulations of January 26, 1922, the Mexican government provided for the issuance of twenty-year 5 per cent bonds for the payment of lands expropriated for ejidos. These bonds were not to be negotiable instruments, but it was stipulated that the federal government would accept them at par in payment for public lands and as security for the fulfillment of public contracts or concessions, and that the coupons would be accepted in payment for any federal tax. It was further provided that owners of expropriated lands should apply for these bonds by w a y of indemnification within a year from the date of the taking of their property. However, as it was believed that such application would be construed as an admission of the right of the Mexican government to expropriate lands on the terms specified in Article 27, few owners of expropriated lands applied for the bonds. B y various subsequent decrees the time limit for filing application for indemnification was extended. At the Bucareli Conference, the American Commissioners at first took the position that the Mexican government did not have the right to take lands for ejidos without the payment of full compensation in cash at the time of the taking. T h e y also complained of the numerous irregularities and excesses that had occurred in the carrying out of the agrarian program. T h e y asserted that the United States could not recognize any right of Mexico under the terms of any law, as a legal right, to compel American citizens to accept bonds as compensation for land expropriated for ejidos. Such bonds, they said, could in no w a y be considered as indemnification under the Constitution of 1857 or under the rules of international law. 7 The Mexican Commissioners stated that the legislation regarding the issuance of bonds as compensation for land taken had been adopted " to enable the Government to give immediate satisfaction to public needs, thus solving a pressing national problem which had to be solved regardless of the economic situa7

Proceedings,

1923, op. cit., p. 29.

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tion of the country." T h e y stated further that the Mexican government was trying to negotiate a special loan for the purpose of paying in cash all indemnities for the expropriation of lands for ejidos, and that as soon as such a loan could be obtained, the government would proceed to redeem outstanding bonds. T h e y asserted the belief that the bonds would eventually have a cash value and would produce an income greater than the rent of the expropriated lands, particularly since the new economic organization of the country under the Constitution of 1917 had " c o n siderably lowered the value of rural property." 8 As for the amount of compensation specified by Article 27, the Mexican Commissioners did not consider this amount unjust, since the taxation values of property were based principally on the declarations of the property owners themselves. T h e y also referred to the fact that the value of rural property had been greatly diminished as a result of the revolution, and asserted that the situation " in regard to the great difference which formerly existed between the real value and fiscal value " of land had been changed. 9 A s a result of the discussion, the American Commissioners appear to have become convinced both that agrarian reform in Mexico was unavoidable and that cash indemnities were out of the question. T h e y accordingly proposed a compromise. If the Mexican government would make a statement that its claim to expropriate lands of American citizens for ejidos under certain conditions did not " constitute a precedent for Mexico entitling her to expropriate any other kind of property, real or personal, for any purpose, except upon indemnification for the just value thereof at the time of the taking having been made in cash," the government of the United States would be willing to accept for its citizens Mexican federal bonds of the issue referred to by the Mexican Commissioners in payment of land granted for ejidos, at the just value thereof at the time of the taking. This agreement was dependent upon the conclusion of a general claims convention, under the terms of which American citizens whose lands had been taken would have the right to present to the Commission a claim * Proceedings, 1923, p. 33. • Ibid., p . 34-

The special loan referred to was not obtained.

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379

for loss or damage " for any injustice arising from acts of officials or others acting for the Mexican Government."

A s a further

condition, it w a s specified that the term ejidos should refer only to an area of land not substantially exceeding 1,755 hectares. A n y taking of land over this amount should be paid for in cash at the just value at the time of the taking.

T h i s agreement re-

ferred only to the " donation " of lands to villages then in existence, and the United States reserved " all the rights of its citizens in case of the division of estates or lands or annulling of valid titles or making grants based on former possession, to receive payment for the just value of the land at the time of the taking." Finally the American Commissioners stated that their government " did not consider it fair, just or l e g a l " for the M e x i c a n government to expropriate lands for ejidos or other purposes on the basis of payment of the assessed tax valuation, either as fixed after a declaration b y the owner or without such a declaration, but would have to maintain the position that the owner was entitled to compensation, no matter how paid, " for the just value of the land at the time of the taking."

In this connection it was

suggested that when any loss or damage of any nature had been or might thereafter be suffered b y any citizen of the United States, the proposed general claims commission should have jurisdiction to hear and determine all such claims, and to fix the damages sustained and the compensation to be paid therefor. 1 0 T h i s compromise agreement was accepted b y the M e x i c a n Commissioners and w a s subsequently embodied in an exchange of notes between the two governments.

W i t h the ratification of the

convention providing for the establishment of a general claims commission, the subject of the expropriation of lands for

ejidos

ceased to be a matter of diplomatic controversy between the two governments. B y this agreement, Americans whose land was expropriated for the purpose of granting ejidos

to existing villages became

bound to accept federal bonds issued under specified conditions for the payment of land up to an area of 1,755 hectares.

However,

they were apparently not compelled to accept the basis of valua10

Ibid., pp. 37-40.

AGRARIAN

38O

REFORM

tion fixed by Article 27 of the Constitution but could claim the " j u s t " value of their property as determined by the proposed general claims commission. Any amount over the 1,755 hectares was to be paid for in cash. This agreement did not cover lands taken for " restitution " or as a result of the annulment of grants made by former administrations. It likewise did not cover such losses as might be sustained as a result of the breaking up of large estates. T h e General Claims Commission was given jurisdiction to hear and determine claims for all such losses, and was also given the unusual power to order the restoration of lands wrongfully taken. 11 It will thus be seen that the settlement of the diplomatic controversy over the agrarian program was dictated less by legal logic than by the practical necessities of the situation. The principle originally advanced by the United States that property could not be taken for a public purpose unless full compensation in cash was paid at the time of the taking was modified in the final settlement. The agreement to accept bonds was in effect an agreement to acquiesce in the delay of indemnification until the Mexican government was financially able to make payments. However, the admission by the Mexican government that valid titles to real estate held by foreigners could not be taken away without indemnification and its agreement not to consider the settlement proposed by the United States in this instance as a precedent in future expropriations appear to have satisfied the United States that the acceptance of a compromise in this instance would not materially weaken the general rule protecting private property against confiscation. The only real question involved was the adequacy of the compensation offered, and this question was finally disposed of by the establishment of a general claims commission and the granting of power to that commission to fix damages. T h e rule originally advanced on this question by the United States would have been impossible of application in the existing situation in Mexico. 11

U p to the time the General C l a i m s Commission suspended its h e a r i n g s in

A u g u s t , 1931, no claims arising out of the agrarian laws had been acted u p o n b y that b o d y .

AGRARIAN

REFORM

38I

While it would not be difficult to find many authorities that could be cited in support of this rule, it appears that, in practice, the determination of " full and adequate compensation " is almost always affected by what is practicable under the particular circumstances of the case. Numerous instances have occurred of the taking of private property of foreigners under the exercise of eminent domain, in which the actual compensation received by the owner has borne little relation to the market value of the property taken. Some of the succession states in Europe that have adopted programs of agrarian reform since the war have provided for compensation at an apparently lower rate than that specified in the Mexican Constitution. 12 Past experience seems to demonstrate that, on occasion, drastic social and economic reforms become necessary in nearly all nations and that it is often impossible at such times to pay full compensation to dispossessed owners. If the position originally advanced by the United States on this question should be adhered to as an international rule, such reform programs would apparently be out of the question, at least where they adversely affected a substantial amount of foreign interests. As a matter of fact, the government of the United States abandoned this position when it became apparent that the redistribution of land in Mexico was unavoidable. Fortunately the concept of compensation was sufficiently flexible to preserve the general purpose of the rule while at the same time fitting its application to the particular circumstances. 12

See the article on " P r o b l e m s of International L a w in the Mexican

stitution of 1 9 1 7 , " b y John P . Bullington in the American Law, October, 1927, pp. 685-705.

Journal

of

Con-

International

CHAPTER NATIONALISM AND THE OF

XIII RENUNCIATION

PROTECTION

THE legislation referred to in the preceding chapter was primarily concerned with the redistribution of existing landholdings in Mexico with a view to improving the economic condition of the peasant class. Another aim of the revolution embodied in Article 27 was the restriction of ownership of private property by foreigners in Mexico. Back of this aim was a growing spirit of nationalism in Mexico and a resentment against the predominant part played by foreigners in the economic life of the country. The great expansion in foreign investments that had taken place under Diaz had coincided with a decline in the economic welfare of the peasant class, and it was natural to infer that there had been some connection between these two developments, and that improvement in the situation of the Mexican peón could only be accomplished by a sharp reduction in the extent of foreign interests in Mexico. Aside from this, there was a traditional belief (not without some basis in past experience) that the existence of extensive holdings of real property by foreigners in Mexico was a constant threat to the independence of the country. In any case, it could not be denied that the chief source of controversy between Mexico and foreign nations had been the protection of property rights of foreigners in Mexico. It was obvious that if, by some method, the right of foreign propertyholders in Mexico to have recourse to the diplomatic protection of their own governments could be removed, the burdens of the Mexican government would be much lighter. These considerations led to the inclusion in Article 27 of the Constitution of 1917 of definite restrictions upon the ownership of private property by foreigners and foreign corporations in Mexico. 382

R E N U N C I A T I O N OF PROTECTION RESTRICTIONS U P O N O W N E R S H I P OF REAL PROPERTY

383 BY

FOREIGNERS.

Article 27 of the Constitution contained the following restrictions upon the capacity of foreigners to acquire and hold real property in Mexico: 1. A general provision that only Mexicans could acquire lands, waters and their appurtenances, or obtain concessions to develop mines, waters or mineral fuels in Mexico. The government might grant the same right to foreigners, but only on condition that they renounce all recourse to the diplomatic protection of their own governments in respect of such property. This limitation was apparently intended to apply only to future acquisitions and not to existing holdings. It will be discussed below in the section dealing with the renunciation of protection. 2. Under no condition could foreigners acquire direct ownership of lands and waters within a zone of 100 kilometers from the frontiers and of 50 kilometers from the seacoast. This provision likewise apparently related only to future acquisitions. Restriction of foreign holdings in these zones was not an innovation, since various previous laws had contained similar limitations.1 However, these prior limitations had not been in absolute form, since foreigners could acquire property in the restricted zones with the permission of the federal government. Such permission had been freely granted, at least during the Diaz régime, and had not been made conditional upon a waiver of diplomatic protection. The provision of Article 27 was absolute, and had no relation to the question of renunciation of protection. 3. A general provision against commercial stock companies acquiring, holding or administering rural properties. While this provision was not expressly aimed at foreigners, it affected them relatively more than Mexicans since most of the incorporated agricultural enterprises were owned in whole or in part by foreigners. The wording of this provision seemed to indicate that 1 The extent of the zones had varied from time to time, but these variations were without particular significance.

384

R E N U N C I A T I O N OF P R O T E C T I O N

it was meant to be applicable to existing holdings as well as to those acquired in the future. Aside from the question of renunciation of protection, these constitutional restrictions upon the ownership of real property by foreigners in Mexico did not become the subject of diplomatic controversy until the adoption of the Alien Land Law by the Calles government on December 3 1 , 1925. The purpose of that law was to put into effect the above provisions of the Constitution. Article 1 of the law restated the absolute prohibition against the acquisition of lands by foreigners in the border and coastal zones, and prohibited foreigners from being shareholders in Mexican companies which might attain such property. The wording of this article left some question as to whether it might be applied to existing holdings of foreigners, but in a subsequent note to the American government, Señor Saenz specifically stated that the article would not be given retroactive effect, " that is to say, it does not refer to an alien who had acquired or had an interest in any kind of a company that had acquired direct ownership in lands and waters within the forbidden zone prior to the promulgation of the said law." 2 Article 2 specified that before an alien could " form a part o f " a Mexican company owning or acquiring real property or mining or petroleum concessions in Mexico he must renounce recourse to the diplomatic protection of his own government. Señor Saenz likewise assured Secretary Kellogg that this article was not retroactive in its application, since it did not require compliance by aliens who, prior to the promulgation of the law, had acquired an interest in a Mexican company. 3 Article 3 provided that in the case of Mexican companies owning rural property for agricultural purposes, foreigners could not acquire more than 49 per cent of the total interests of the company, even though they signed an agreement renouncing diplomatic protection. Señor Saenz again assured Secretary Kellogg that this article was not intended to be retroactive. Articles 4, 5, 6, and 7 of the law became the subject of diplomatic controversy between the two governments. These articles 2 3

Saenz to Kellogg, March 27, 1926, Sen. Doc. No. g6, op. cit., p. 40. Ibid., p. 40.

R E N U N C I A T I O N OF PROTECTION

385

provided that foreigners who owned more than 49 per cent of the total interest in companies owning rural property for agricultural purposes (except colonization companies) should only be permitted to retain such interest until death in the case of individuals, or for ten years in the case of corporations. Other rights in real property legally acquired by aliens prior to the going into effect of the law could be retained by such owners until their death. If, after the death of the foreign owner, the property should go to a foreign person not authorized under the law to continue such ownership, it must be disposed of within five years. Foreigners holding any of the above rights were required under penalty of forfeiture to make a declaration of their rights within one year. 4 B y the regulations issued to govern the application of this law, it was provided that, where an alien receiving property rights by inheritance could not dispose of them within the fiveyear period, the Department of Foreign Relations might extend this limit for the term necessary to eliminate the difficulty. 5 It was also provided that, in pursuance of Article 14 of the Constitution of 1917, " none of the dispositions of the law nor of these regulations shall be applied retroactively to the prejudice of any person." T h e introduction of this bill in the Mexican Congress brought forth from Secretary Kellogg his famous Aide Memoire of November 17, 1925, referred to previously. He did not indicate the grounds of his objection to the law in this note, but in a subsequent communication of November 27, 1925, he expressed the conviction that, in certain of its features, the measure operated retroactively with respect to American interests in Mexico and that its effect upon them would be plainly confiscatory. T h e requirement of renouncing protection as an alternative to forfeiture of vested rights amounted to " substantial confiscation." The same was true with regard to the provisions requiring disposition of the excess over 49 per cent of stock in Mexican companies formed for agricultural purposes. T h e provision permitting existing indi4

A translation of this l a w supplied by the Mexican E m b a s s y at W a s h i n g t o n

is printed in H a c k e t t , op. cit., p. 4 1 4 - 4 1 7 . 5

Ibid.,

p. 420.

386

R E N U N C I A T I O N OF P R O T E C T I O N

vidual holders to retain, until their death, such rights " o n l y mitigates and postpones but does not eliminate the confiscatory feature." 8 In his reply to this note, Señor Saenz denied that the provisions of the Alien Land Law were retroactive and confiscatory. He argued that, since foreign stockholders in rural corporations were given a long period in which to divest themselves of the excess of their participation in such companies, the law was not confiscatory " because the right is recognized, and it is merely its transformation which is required." Neither was this provision retroactive, " because it does not harm acquired rights since . . . the form in which a foreigner holds a right may be changed by a sovereign nation as long as the right in its essence is respected." 7 Señor Saenz revealed that the main motive back of the corporate provisions of the Alien Land Law had been to enable the Mexican government to proceed with the program of agrarian reform as regards the lands of Mexican agricultural companies without encountering diplomatic representations by the government of the United States on behalf of American stockholders in those companies. 8 As for the provision that individual owners could preserve their rights until their death, Saenz pointed out that this provision merely put " a limitation upon the right of inheritance, which is in strict conformity with international law since in such cases there are no acquired rights, but merely an expectation of acquiring them." He asserted that similar limitations were found in the laws of the United States, and insisted that the 6

Kellogg to Saenz, November 27, 1925, Sen. Doc. No. 96, op. cit., p. 6.

7

It is obvious that Secretary Kellogg and Señor Saenz were thinking about different things when they were talking of the " rights " of American stock holders in Mexican agricultural companies. Thus Secretary Kellogg clearly conceived of such " rights " as including that of complete freedom as to the time and manner of disposition of the stock, whereas Señor Saenz separated the right of disposition of the stock from the right of ownership. In the latter's v i e w , so long as the stock itself was not taken a w a y from the individual owner, he w a s not deprived of his " rights," even though he might be required to dispose of them within a certain time limit. 8 The Department of State had followed the practice of intervening on behalf of foreign corporations in which a majority of stock was owned b y American citizens.

R E N U N C I A T I O N OF P R O T E C T I O N

387

limitations in the Mexican law did not confiscate rights, since foreign owners were allowed " prudent and ample periods, in which to divest themselves of those rights." 9 In response to Señor Saenz's reference to limitations in the laws of some of the states of the United States on the inheritance of property, Secretary Kellogg caused the following memorandum to be delivered to the Mexican Embassy on December 22, 1925: Respecting Illinois, see alien act of 1897; also court decision in Meadowcroft v. Winnebago County (181 111. 504; 54 North Eastern Reporter, 949), in which the court stated inter alia that it could not see how the act of 1897 could be applied to this case, " the title to the property in question having vested prior to its taking effect." The court held, " Therefore, the subsequent act can not be held applicable here without divesting or impairing vested rights, to hold which would render the act unconstitutional and void." See also Wunderle v. Wunderle (144 111. 40; 33 North Eastern 19s), wherein the court said: " But aliens who had acquired lands in Illinois before the act of 1887 went into force had vested property rights which could not be confiscated or taken away from them." Regarding Arizona, see the provisions of section 4716 of the Arizona Civil Code of 1913, relating to alien ownership of real estate, wherein the restrictions are expressly stated to refer to future acquirements. 10

The implication in this memorandum that the laws of American states affecting the disposition of property owned by aliens did not in any case apply to rights already vested in aliens is far from accurate, as was subsequently pointed out by Señor Saenz. Even the cases cited by Secretary Kellogg do not in fact support his contention. It will be found on examination that the quotations which he takes from these cases, although apparently sustaining his position, have quite a different implication when taken in the context in which they appeared. 11 9

Saenz to Kellogg, December 5, 1925, ibid., p. 7.

10

Ibid.,

11

T h e case of M e a d o w c r o f t v . W i n n e b a g o C o u n t y had reference t o p r o p e r t y

p. 1 2 - 1 3 .

which had already, prior to the passage of the Alien Act of 1887, become vested in the c o u n t y The

original

b y escheat under a prior l a w governing inheritance through o w n e r of the p r o p e r t y

citizen, w h o died in 1894.

was

one Richard

Horsefall,

an

aliens.

American

His nearest next of kin w a s D i n a h M e a d o w c r o f t , w h o

traced her relationship to the decedent t h r o u g h an alien.

U n d e r the l a w of 1887

388

R E N U N C I A T I O N OF P R O T E C T I O N

In a subsequent communication, Secretary Kellogg stated that the reference made in the Mexican note to the statutes existing in the states of Arizona and Illinois was " based upon a misconception of those laws." He asserted that both the Illinois law of 1897 and the Arizona law of 1913 relating to alien ownership of real in Illinois, w h i c h w a s in force w h e n H o r s e f a l l died, an alien could not inherit f r o m a citizen, and hence the p r o p e r t y

w e n t to the c o u n t y b y escheat.

Three years

later an act w a s passed p r o v i d i n g t h a t " no person shall be deprived of his right to t a k e title as heir at l a w , b y descent f r o m a n y deceased person, because he m a y be compelled to trace his relationship t o such deceased person through one or more aliens."

D i n a h M e a d o w c r o f t sought t o i n v o k e this l a w to enable her to trace her

heirship t o the p r o p e r t y of H o r s e f a l l t h r o u g h her alien ancestor.

T h e court held,

h o w e v e r , that the l a w of 1897 r e m o v i n g the disability t h a t h a d existed under the l a w of 1887 could not be applied to the case, since the title to the property in question had a l r e a d y v e s t e d in the c o u n t y .

O b v i o u s l y the court w a s not discussing

in this case the question of the right of the legislature t o pass l a w s affecting the disposition of inheritance of p r o p e r t y already vested in aliens. T h e other case cited b y Secretary fails to support his contention.

K e l l o g g , Wunderle

v . Wunderle,

likewise

A l e x a n d e r W u n d e r l e , the o w n e r of the property in

question, died intestate in Illinois in 1891 leaving as his heirs a w i d o w and a brother a n d sister, the latter t w o being non-resident aliens.

U n d e r the law

of

1887 then in force, aliens could not t a k e b y inheritance unless t h e y were the heirs of aliens, b u t the intestate h a d been a citizen.

Hence the brother a n d sister could not

t a k e unless the act of 1887 could be f o u n d unconstitutional. establish

on the g r o u n d

T h i s they sought to

t h a t , since it permitted inheritance

inhabitants, i.e., deceased aliens, and not f r o m another, i.e.,

f r o m one class

w a s a " special act " w h i c h w a s forbidden b y the Illinois C o n s t i t u t i o n . the court declined to u p h o l d this contention.

of

deceased citizens, it However,

It pointed out t h a t under the prior

l a w of 1851 aliens h a d been permitted to inherit p r o p e r t y a l o n g w i t h citizens, and t h a t the l a w of 1887 h a d e m b o d i e d the general purpose of excluding aliens f r o m taking b y inheritance.

T h e exception in t h a t law t h a t aliens could still inherit

f r o m aliens h a d been inserted to protect the rights of aliens w h o had p r o p e r t y under the l a w of 1851.

acquired

T h i s l a w h a d not only specifically authorized

such aliens " to transmit the same to their heirs," b u t h a d p r o v i d e d that

upon

their death their lands " should pass and descend in the same manner as i f " they w e r e citizens of the

United

States.

repealed the act of 1851, " i t

Accordingly,

evidently

w h e n the legislature in

t h o u g h t it best t o so f a r continue

1887 the

privileges of t h a t act to aliens w h o h a d acquired lands in Illinois under it and because of it as t o confer u p o n their heirs the right t o t a k e b y devise or descent a defeasible estate in such l a n d s . "

T h e court did not t h i n k t h a t the e m b o d i m e n t

of such a " just a n d reasonable exception " in the act of 1887 m a d e it a special l a w , w i t h i n the m e a n i n g of the state constitution, and hence held that the act of 1887 w a s valid. legislature

has

I n the course of its opinion the c o u r t stated as f o l l o w s : " T h e power

operate instantly

to

u p o n all

change

the

course

estates w h i c h

may

of descent, and subsequently

such change descend.

The

will law

R E N U N C I A T I O N OF PROTECTION

389

estate were " expressly made to apply to future acquisitions of real property and do not apply to property already acquired." 12 However, Secretary Kellogg seems to have been badly advised on the provisions of these laws. 13 Señor Saenz did not fail to point out in reply that both of these laws set limits for the retention of rights already acquired, " which is exactly the principle of the Mexican L a w . " He also called attention to the laws of six other American states which had similar provisions requiring the disposition of inherited property by aliens within periods ranging from three to six years. He likewise referred to the fact that the United States had not been deterred from adopting the Prohibition Law in spite of the fact that this law completely paralysed established businesses.14 existing a t the t i m e of descent cast governs the right to inherit. A mere expectation of p r o p e r t y in t h e f u t u r e is n o t considered a vested right, a n d hence t h e ' rules of descent a r e held subject to change in their application t o all estates not already passed t o t h e heir by d e a t h of t h e o w n e r ; ' Cooley Const. Lim. (6th e d . ) , p. 439; Sturgis v . Ewing, 18 111. 176; C r a n e v. Reeder, 21 Mich. 24; Pilla v. Association, 23 F e d . Rep. 700. I t follows t h a t neither citizens nor aliens h a v e vested rights in t h e estates of their living k i n d r e d . " I n other words, the court held t h a t , while aliens w h o h a d acquired p r o p e r t y u n d e r the law of 1851 h a d vested rights which could not be confiscated, nevertheless the right to t r a n s m i t this p r o p e r t y at their death was subject to subsequent legislation. T h e fact t h a t the law of 1887 h a d m a d e a n exception of such p r o p e r t y in f a v o r of aliens was merely a n act of grace on the p a r t of t h e legislature. Clearly t h e force of this decision is quite opposite f r o m t h a t given t o it in Secretary Kellogg's m e m o r a n d u m , and might readily be cited in s u p p o r t of t h e Mexican contention. This m e m o r a n d u m of Secretary Kellogg's shows h o w easily general s t a t e ments can be m a d e to yield conflicting conclusions w h e n t a k e n out of their original context. 12

Kellogg to Saenz, J a n u a r y 28, 1926, Sen. Doc. No. 96, p. 21, 23. T h e law of 1897 of Illinois merely changed the law of 1887 which h a d prohibited aliens f r o m inheriting f r o m citizens. At t h e same time, the law of 1897 provided t h a t aliens acquiring title by inheritance should dispose of it within a specified length of time. T h e provision of the Arizona Civil Code of 1913 relating to alien ownership of p r o p e r t y did not prevent alien heirs f r o m holding lands by inheritance, b u t specifically provided t h a t " all lands acquired as aforesaid shall be sold within five years a f t e r t h e title thereto shall be perfected in such aliens a n d in default of such sale within such time the title of such real estate shall revert or escheat t o t h e S t a t e of Arizona." T h e only exemptions t o this law were mining lands a n d rights existing under a n y t r e a t y of t h e U n i t e d States. 13

14

Saenz t o Kellogg, F e b r u a r y 12, 1926, ibid.,

p . 28.

On this last point Sec-

390

RENUNCIATION OF

PROTECTION

Secretary Kellogg did not attempt further to refute the statements of Señor Saenz that the laws of various American states were similar to the Alien Land Law, but insisted that compulsory divestment of existing rights was confiscatory in the same manner as was the compulsory exchange of ownership of petroleum deposits for concessions to work such deposits. Señor Saenz maintained, however, that the Mexican government was under no obligation to protect property rights beyond the lifetime of existing owners. As for corporations, he argued that, as it was within the power of the Mexican government to fix the life of such corporations, it could likewise fix the term during which they could hold property. He insisted that the periods fixed for the disposition of property under the law were ample to prevent any material loss to existing owners. 15 It will thus be seen that the debate over the Alien Land L a w narrowed down to the single question whether a property right once vested could thereafter be changed either in form or in duration by subsequent legislation. This was in essence the same question that was involved in the oil controversy, and the discussion of the former eventually became merged in the latter. T h e final settlement of the petroleum dispute might be construed as an admission by the United States of the validity of the Mexican position on the Alien Land Law, since that settlement involved an acquiescence in the alteration of the form of existing rights, even though this resulted in some loss to foreign owners. However, it is clear that this settlement turned upon a recognition of the practical necessities of the case rather than upon a change of view as to the general principles involved. If a future alteration in vested rights should result in so heavy a loss to existing owners as to endanger, in the eyes of the officials of the United States, the general security of private property rights in Mexico, it is safe to predict that the United States would not approve of the retary Kellogg replied that the liquor business in the United States had not been a " property right" but a " licensed occupation" subject at all times to the exercise of the police powers of the United States. Kellogg to Saenz, March i , 1926, ibid., p. 35, 37. 16

Saenz to Kellogg, October 7, 1926, op. cit., p. 10, 23.

RENUNCIATION change.

OF PROTECTION

391

Present acquiescence in the provisions of the Alien L a n d

L a w is apparently based on the belief that, in the actual operation of that law, existing American owners will not suffer v e r y great material damage.

Should this belief prove to be unfounded, it

is probable that the attitude of the government of the United States toward the law would change.

RENUNCIATION OF PROTECTION Perhaps the feature of the Alien L a n d L a w that aroused the greatest opposition was the stipulation that an alien could not participate in a M e x i c a n company acquiring the ownership of lands or concessions unless he first renounced the right of recourse to his own government for diplomatic protection in respect of his interest in the company.

T h i s agreement of renunciation of pro-

tection is known as the " C a l v o clause," and has appeared in various forms in M e x i c a n legislation over a long period of years. I t is a device that has been frequently tried out b y Latin American states as a means of limiting the exercise of diplomatic interposition b y stronger governments.

The

earliest attempts of

the

Mexican government along this line have already been discussed in Chapter V I I .

T h e s e attempts were sought to be justified on

the premise that, regardless of the nature of the international right of diplomatic protection, the right of an individual foreigner to seek such protection is a personal right which the individual can waive or m o d i f y by his own voluntary act. On various occasions in the past, the Mexican government had endeavored to make the renunciation of protection a condition precedent to the ownership of property or the enjoyment of concessions by foreigners in Mexico.

T h u s , as far back as

1856,

President Comonfort had issued a decree governing the ownership of real property b y foreigners which contained the following statement: Art. 5. Foreigners acquiring real estate under this law remain subject, in everything relating to such real estate, to such regulations as may have been made, or shall hereafter be made, in the republic, with regard to the transfer, use and retention of such real estate, as well as to the payment of all kinds

392

R E N U N C I A T I O N OF P R O T E C T I O N

of taxes, without the right to allege, at any time, with respect to these matters, their rights as aliens. Art. 6. Hence, all questions which may arise as to such property, shall be tried in the Courts of the Republic and in conformity with its laws to the exclusion of all foreign intervention of any kind. 1 6

Likewise, Article 33 of the Constitution of 1857 had stipulated that: " Aliens . . . are under obligation . . . to obey and' respect the institutions, laws, and authorities of the country, subjecting themselves to the decisions and sentences of the tribunals, and shall not be entitled to seek other redress than that which the laws concede to Mexicans." The government of the United States, however, had refused to concede that Mexico could, by municipal legislation, affect the right of aliens to have recourse to their own government for protection. Even during the Diaz régime, public contracts with foreign companies invariably contained Calvo clauses, and concessions to railroad companies stipulated the renunciation of protection as a condition precedent to the employment of foreigners. The general attitude maintained by the government of the United States toward these stipulations was that they could not bar complaints of Americans to their own government against " oppression and denial of justice." 17 As a matter of fact, it does not appear that the Diaz government sought to make use of these Calvo clauses as a defense against diplomatic interposition. It was not until the Carranza régime that the validity of voluntary renunciation of protection came up for serious discussion. Carranza's general policy was strongly nationalistic in tone, and was characterized by an extreme application of the so-called " Calvo doctrine," which condemned diplomatic interposition generally on the ground that it gave to foreigners a privileged position over natives. Even before the adoption of the Constitution of 1 9 1 7 , Carranza sought to put a limit to the exercise of diplomatic protection by his decree of August 1 5 , 1 9 1 6 , requiring renunciation of protection as a condition of acquiring real prop16

A translation of this decree is enclosed with Ransom to Olney, N o .

November 9, 1895, M S . Desp. Mex., Vol. 1 2 7 . 17

H a y to Clayton, N o . 484, January 30, 1 9 0 1 , M S . Inst. Mex., Vol. 25.

82,

R E N U N C I A T I O N OF PROTECTION

393

erty in Mexico. T h e preamble of this decree laid down the proposition that, since foreigners enjoyed the same privileges in Mexico as Mexicans, they should be subject to the same obligations, and should not, as owners of property in Mexico, " be in better juridical conditions than Mexicans," as would be the case if they could have recourse to the diplomatic protection of their respective governments. On this premise, the decree provided that foreigners desiring to acquire real estate, mining claims, water rights, permits for the exploitation of natural resources, etc., should present beforehand in writing a formal express declaration that, in regard to such property, they would consider themselves Mexicans, " waiving their rights as foreigners and privileges of appeal for protection or claim to their respective Governments." Foreign corporations could not acquire any property rights " unless they nationalize and submit to the Mexican laws making the aforementioned declaration." 18 It was further provided that all denouncements of subsoil deposits by foreigners then on file before the government should be suspended until the interested persons should file a certificate of renunciation of protection in regard thereto. Failure to file such a certificate within four months was to result in the forfeiture of all rights. 19 When this decree first came to the attention of the Department of State, Secretary Lansing adopted the usual position that such measures could not be regarded by the government of the United States " as annulling the relations existing between it and its citizens who may acquire properties in Mexico, or as affecting its rights and obligations to protect them against denials of justice with respect to such properties." 20 Likewise, when it was learned that the Constitutional Convention at Querétaro was considering the inclusion of a similar provision in the new Constitution, Secretary Lansing telegraphed the following protest: . . . T h e G o v e r n m e n t o f t h e U n i t e d S t a t e s h a s in t h e p a s t m a d e c l e a r , a s d o u b t l e s s h a v e o t h e r n a t i o n s , t h a t i t c a n n o t c o n c e d e t h e right o f M e x i c o

to

18

A translation of this decree is printed in H a c k e t t , op. cit., p. 4 0 J .

19

This limit w a s subsequently extended for an additional f o u r months b y a

circular issued on D e c e m b e r 15, 1 9 1 6 . 1917, p. 1 0 5 9 .

20

See Foreign

Relations

of the United

Lansing t o T h u r s t o n , J a n u a r y 1 9 , 1 9 1 7 , ibid., p. 1 0 5 9 .

States,

R E N U N C I A T I O N OF P R O T E C T I O N limit, by its municipal law, this Government's right of intervention to protect the rights of its citizens residing or sojourning in that country, nor concede that waivers such as those referred to in this provision can annul the relations of citizens to their own government and extinguish the obligation of this Government to protect its citizens in Mexico.

In so f a r as the proposed pro-

vision would hamper the transfer to another foreigner of foreign owned lands, it would apparently in a sense be confiscatory of rights enjoyed by the foreign owner from the time of his acquisition of the property. 2 1

In spite of this protest, the final draft of Article 2 7 contained a provision that foreigners could not acquire ownership in lands, waters and their appurtenances, or obtain concessions to develop mines, waters or mineral fuels in Mexico unless they agreed before the Department of Foreign Affairs " to be considered Mexicans in respect to such property and accordingly not to invoke the protection of their Governments in respect to the same, under penalty, in case of breach, of forfeiture to the Nation of property so acquired." From the wording of this provision, it was apparently intended to apply only to future acquisitions of property or concessions and not to existing holdings of foreigners. However, under the provisions nationalizing subsoil concessions for the exploitation of the subsoil, and under the above-quoted clause of the Constitution, such concessions apparently could not be issued without the prior renunciation of protection. Hence, the question of renunciation became of immediate interest to the government of the United States and figured to a large extent in the subsequent petroleum controversy. Diplomatic discussion of the question of renunciation of protection did not begin in earnest until the adoption of the Alien Land Law of 1925. Article 2 of that law provided as follows: In order that an alien may form part of a Mexican company which m a y have or may acquire domain over lands, waters and their appurtenances, or concessions f o r the exploitation of mines, waters or combustible minerals in the territory of the Republic, he shall satisfy the requirements set out in the same Sec. I of Art. 27 of the Constitution to w i t : that of agreeing b e f o r e the Department of Foreign Relations to consider himself national in respect of the part of the property which pertains to him in the company; and not to invoke, in respect thereof, the protection of his government with reference 21

Lansing to Parker, January 22, 1917, ibid., p. 947.

R E N U N C I A T I O N OF PROTECTION

395

thereto, under penalty in case of failing in the agreement, of losing for the benefit of the nation the property which he may have acquired or which he may acquire as a shareholder in the company in question. 22

When this provision came to the attention of Secretary Kellogg, he asserted that it amounted to " substantial confiscation." He added that his government " in accordance with principles generally if not universally accepted " had always consistently declined to concede that such a waiver could annul the relation of the citizen to his own government, or " extinguish the obligation of his Government b y diplomatic intervention to protect him in the event of a denial of justice within the recognized principles of international law." 23 In response to this statement, Señor Saenz replied that legislation requiring renunciation of protection was no novelty in Mexican law. He asserted that it was " a universally acknowledged principle that every nation is sovereign to legislate in the matter of real property within its own territory." Since Mexico had the right to prevent foreigners from acquiring any property at all in Mexico, he argued that it could specify the conditions under which such property might be acquired." According to Señor Saenz, Article 2 of the Alien Land Law was only intended to apply to rights acquired subsequent to M a y 1, 1917. The wording of Article 4 of the Petroleum Law, on the other hand, indicated that the Mexican government intended to require such renunciation from existing holders of petroleum lands who applied for concessions in accordance with that law. In protesting against this article, Ambassador Sheffield again stated the position of the United States that such a waiver by an American citizen could not annul the relation between him and his government or extinguish the obligation of his government to protect him in the event of a denial of justice. 23 In reply, Saenz merely reiterated his previous argument that it was the sovereign right of a nation to impose such conditions as it might deem expedient upon the acquisition of real property by foreigners. In 22

H a c k e t t , op. cit., p. 415.

23

Aide-M emoire,

21

Saenz to Kellogg, D e c e m b e r 7, 1925, ibid.,

25

Sheffield t o Saenz, J a n u a r y 8, 1926, ibid., p. 13, 14.

of N o v e m b e r 27, 1925, Sen.

Doc.

A'0. 96, op. cit., p. 3, 6.

p. 7, 9.

396

RENUNCIATION OF

PROTECTION

his argument he failed to distinguish between rights already acquired, as in the case of the Petroleum Law, and those to be acquired in the future, as covered by the Alien Land Law. 28 Secretary Kellogg in his reply advanced a somewhat more elaborate argument in support of his position, as follows: . . . U n d e r the rules applicable to intercourse b e t w e e n states, an i n j u r y done b y one state to a citizen of another state through a denial of j u s t i c e is an i n j u r y done t o the state whose national is injured.

T h e right of his state to extend

w h a t is known as diplomatic protection can not b e w a i v e d b y the individual. I f states b y their unilateral acts or citizens b y their individual acts were perm i t t e d to m o d i f y or withhold the application of the principles of international law, the b o d y of rules established b y the c u s t o m of nations as legally binding upon states would m a n i f e s t l y be gradually b r o k e n down. T h e right of diplomatic protection is not a personal right, but exists in f a v o r of one state against another.

I t is a privilege w h i c h one state under

the rules of international law can extend or withhold in b e h a l f of one of its nationals.

W h e t h e r or not one of its citizens has agreed not t o i n v o k e the

protection of his g o v e r n m e n t , nevertheless his g o v e r n m e n t has, b e c a u s e the i n j u r y has been inflicted by one state against the other, the right t o extend w h a t is termed diplomatic protection. 2 7

In reply, Señor Saenz sought to draw a sharp distinction between the right of a government to intervene on behalf of its nationals and the power of such nationals to waive their right to call on their government for protection in return for privileges or concessions granted by a foreign government. Saenz conceded the principle that " an individual may not compel the State of which he is a citizen to refrain from asserting a right that belongs to it," and asserted that Article 2 of the Alien Land Law of 1925 (he failed to mention Article 4 of the Petroleum L a w of the same date) did not claim to affect this right. T h e obligation required by that article was, he said, an individual one, affecting only the contracting parties, and in no wise infringing upon any rights of the individual's own government. If an individual, in order to obtain a privilege, assumed the obligation not to call on his government for protection and subsequently violated this obligation, 28 27

Saenz to Sheffield, January 20, 1926, ibid., p. 15, ig. Kellogg to Saenz, January 28, 1926, ibid., p. 21, 22-23.

R E N U N C I A T I O N OF P R O T E C T I O N

397

the law merely provided a penalty for this infraction by forfeiting the privilege or concession. Since this only affected the individual privately " without in any way infringing the rights of the State to which he belongs," it was not understood how it could be contrary either to international law or to the general principle asserted by Secretary Kellogg. Señor Saenz also argued that the requirement of renunciation of protection as a condition precedent to the acquisition of property was less stringent than the requirement found in the laws of many American states that foreigners could not acquire real property at all without becoming naturalized. 28 Secretary Kellogg in his reply failed to discuss the distinction drawn by Saenz between the right of the individual to call for protection and the right of his government to extend it, but merely reiterated his assertion that " even though the individual should make a waiver, that could not estop his state in case of any act of injustice from extending its right of diplomatic protection of seeking redress in accordance with the principles of international law for the injury to the state, inflicted by another state, through an injury to one of its nationals." 20 In response, Señor Saenz referred to his previous statement that the waiver of the individual did not affect the right of the government to extend protection in case of a denial of justice, but insisted that this was " independent of the consequences that a private person may incur through failing to comply with an obligation assumed by him." 30 In his note of July 31, 1926, Secretary Kellogg attempted for the first time to meet this argument by asserting that the imposition of a forfeiture upon an individual seeking the diplomatic protection of his own government effectively nullified the admitted right of his government to extend protection. Kellogg did not explain in detail how this came about, but merely stated that his government could not concede that the Mexican G o v e r n m e n t m a y exact f r o m an American citizen, under pain of forfeiture, an undertaking of this character, the vital purport of which would be to constitute the Mexican government the sole judge of whether 29 29 30

Saenz to Kellogg, February 12, 1926, ibid., p. 28, 29. Kellogg to Saenz, March 1, 1926, ibid., p. 35, 37. Saenz to Kellogg, March 27, 1926, ibid., p. 40, 42.

398

R E N U N C I A T I O N OF

PROTECTION

such a citizen is, or is not, deprived of vested interests in violation of the law of nations. 3 1

In reply, Señor Saenz referred again to the distinction between the right of the individual and the right of his government, and insisted that these rights were entirely separate. His argument was as follows: T h e right of states to protect their citizens or subjects abroad is recognized; that right is unassailable.

B u t the foreign private persons are also given the

right to apply to their governments for protection: the exercise of this right is subject to the will of the parties in interest and therefore they m a y forego its exercise without thereby affecting the right of the state concerned. T h e Mexican G o v e r n m e n t , therefore, does not deny that the American Government is at liberty to intervene for its nationals; but that does not stand in the w a y of carrying out an agreement under which the alien agrees not to be the party asking for the diplomatic protection of his Government. I n case of infringement of any international duty, such as a denial of justice would be, the right of the American G o v e r n m e n t to take with the Mexican Government appropriate action to seek atonement for injustice or injury which m a y have been done to its national would stand unimpaired. Under those conditions neither would the American G o v e r n m e n t

have

failed to protect its nationals nor the M e x i c a n Government to comply with its laws. 3 2

This ended for the time being the diplomatic discussion of the validity of Calvo clauses. Under the final settlement of the oil controversy as described above, it was agreed that owners of petroleum lands on which some " positive act " had been performed could obtain a concession for the exploitation of the subsoil without signing a renunciation of protection in advance. T h i s removed the retroactive feature of Article 4 of the Petroleum L a w but did not alter the provision of Article 2 of the Alien Land Law covering all future acquisitions of property or new concessions. On this question both governments maintained their traditional attitudes. From the standpoint of pure logic, the theory of Señor Saenz has a plausible sound. 33 However, it seems clear that, from " Kellogg to Saenz, July 31, 1926, American Property Rights in Mexico, 3 2 Saenz to Kellogg, October 7, 1926, ibid., p. 10, 14-15. op. cit., p. 1, 10. 33 Señor Saenz's position has received the support of no less an authority than Charles Cheney Hyde, who was Solicitor for the Department of State when

R E N U N C I A T I O N OF P R O T E C T I O N

399

a practical viewpoint, the signing of a waiver by an individual would in fact greatly restrict the right of his government to intervene on his behalf, in spite of Señor Saenz's assurances to the contrary. Under ordinary circumstances, a government would not even be aware that an occasion had arisen for the exercise of its protective function unless so informed by the injured national. Yet the mere act of bringing the facts of the injury to the attention of his government would result in the forfeiture of the individual's property or concession. Obviously, in many instances, the loss from such a forfeiture would be so great as to deter the individual from complaining to his own government of a lesser injury, however flagrant such an injury might be. Even if the injured foreigner's government should be aware of the injury, it would not be in a position to present an adequate complaint without the assistance of the individual in making out the case. Hence, in practice, the Mexican government or its officials would ordinarily, in cases where protection had been waived, escape international responsibility for wrongs so long as the resultant damages were less than the amount of the property interests involved. Accordingly, the theoretical right of protection which Señor Saenz so freely conceded to the government, and which was presumably not affected in any way by the waiver of the individual, would in fact be restricted largely to those cases in which the property loss of the individual was complete. The advantage of such a theory from the standpoint of the Mexican government is obvious. For example, if, in carrying out its program of agrarian reform, the government should take only a portion of the land of an American who had agreed to a waiver of protection, it would be safe to predict that the American would not bring the facts of the taking to the attention of his own government for fear of losing the whole of his property. Likewise, if the term of a mining concession should be reduced by the Mexican government, the holder of the concession, assuming that he had signed a waiver, would not be apt to complain unless the value Hughes was Secretary of State. See his editorial comment entitled " Concerning Attempts by Contract to Restrict Interposition," American Journal of International Law, Vol. 2i, No. 2 (April 1927), p. 298.

400

RENUNCIATION OF

PROTECTION

of the remaining part of his concession were worth less than the amount of damages which he thought he could recover. Señor Saenz's argument can be reduced to the plausible proposition that if an individual voluntarily enters an agreement in which a specific penalty for violation of the agreement is stipulated, he ought to be held to his bargain. T h e practical value of such a proposition under ordinary circumstances is obvious. However, it has been found by experience that the value of this rule does not hold for all types of contracts. For example, in AngloSaxon jurisprudence, agreements designed to limit the jurisdiction of the courts are held to be void as against " public policy," which is another w a y of saying that they have been found by experience to have undesirable social consequences. 34 Such agreements bear a fairly close analogy to Calvo clauses. T h e real purpose of obtaining waivers of the right to call for protection is to prevent the exercise of diplomatic interposition by foreign governments, and not merely to prevent the individual alien from taking his complaints to his own government. T h i s last act is of no consequence in itself unless the alien's government actually espouses the complaint and presents it through diplomatic channels. But in theory, no complaint is made the subject of official diplomatic interposition unless it is believed to involve an injury that is wrongful under international law. Hence an agreement aimed to prevent the exercise of diplomatic protection is in effect an agreement to provide immunity from the legal consequences of international wrongs. T h e subject of the renunciation of protection as embodied in Calvo clauses in contracts came up before the United StatesMexican General Claims Commission of 1923 in two important cases, the North American Dredging Company case and the International Fisheries Company case. These cases will be discussed at length in the next chapter. 34

See Terral, etc. v. Burke

Construction

Co., 257 U. S., 529.

CHAPTER XIV T H E CLAIMS COMMISSIONS OF 1923 THE diplomatic discussions outlined in the three preceding chapters were concerned for the most part with the prevention of threatened losses and injuries to American interests arising out of the revolutionary Mexican Constitution of 1917 and the legislative enactments thereunder. There remained the settlement of numerous outstanding pecuniary claims of American citizens against Mexico for injuries and losses already sustained. Disposition of these claims was provided for by the establishment of two mixed claims commissions, as agreed upon by the representatives of the two governments at the Bucareli Conference in 1923. One of these commissions, called the General Claims Commission, was established under a convention signed September 8, 1923, to act upon all outstanding claims other than those arising from acts incident to the revolution of 1910-1920 in Mexico. The other one, called the Special Claims Commission, was formed under a convention signed September 10, 1923, to act upon revolutionary claims. THE

GENERAL CLAIMS

COMMISSION

The claims to be referred to the General Claims Commission were specified in Article 1 of the Convention of September 8, 1923, as follows: All claims (except those arising from acts incident to the recent revolutions) against Mexico of citizens of the United States, whether corporations, companies, associations, partnerships or individuals, for losses or damages suffered by persons or by their properties, and all claims against the United States of America by citizens of Mexico, whether corporations, companies, associations, partnerships or individuals, for losses or damages suffered by persons or by their properties; all claims for losses or damages suffered by citizens of either country by reason of losses or damages suffered by any 401

402

CLAIMS COMMISSIONS OF 1923

corporation, company association or partnership in which such citizens have or have had a substantial and bona fide interest, provided an allotment to the claimant by the corporation, company, association or partnership of his proportion of the loss or damage suffered is presented by the claimant to the Commission hereinafter referred to; and all claims for losses or damages originating from acts of officials or others acting for either Government and resulting in injustice, and which claims may have been presented to either Government for its interposition with the other since the signing of the Claims Convention concluded between the two countries J u l y 4, 1868, and which have remained unsettled, as well as any other such claims which may be filed by either Government within the time hereinafter specified. . .

These claims were to be submitted to a mixed commission of three members for decision " in accordance with the principles of international law, justice and equity." Each government was to appoint one member of the Commission and the third, who was to be the presiding commissioner, was to be selected by mutual agreement between the two governments; failing such agreement he was to be selected by the President of the Permanent Administrative Council of the Permanent Court of Arbitration at the Hague. A period of one year was allowed for the filing of claims, and the Commission was given the power to extend this period an additional six months in particular cases (Article 6 ) . A period of three years from the date of its first meeting was allowed to the Commission for the disposition of all cases so filed. It was further provided that any claim arising after the signing of the convention might be filed at any time during the period specified for the duration of the Commission (Article 7). The two governments agreed to consider the decisions of the Commission as final and conclusive and to give full effect to them. The governments likewise agreed to regard the results of the proceedings as a " full, perfect and final settlement of all claims for loss or damage sustained prior to the exchange of ratifications " of the Convention, and to consider every such claim, whether presented to the Commission or not, as " fully settled, barred and thenceforth inadmissible" (Article 8). It was the intention of 1

V. S. Treaty Series, No. 678.

CLAIMS COMMISSIONS OF 1923 the two governments, in other words, to wipe the slate clean of all outstanding pecuniary claims. The Convention contained an unusual and important provision expressly eliminating the rule of exhaustion of local remedies as a defense against any claim. That provision was as follows (Article 5): The High Contracting Parties, being desirous of effecting an equitable settlement of the claims of their respective citizens thereby affording them just and adequate compensation for their losses or damages, agree that no claim shall be disallowed or rejected by the Commission by the application of the general principle of international law that the legal remedies must be exhausted as a condition precedent to the validity or allowance of any claim.

The Commission first met for organization purposes on August 30, 1924. Hence, under the terms of the Convention, its duration was limited to August 30, 192 7. However, as this day approached it became obvious that the Commission would not have disposed of more than a small proportion of the claims presented, and the two governments accordingly agreed by a convention signed August 16, 1927, to extend its duration two years to August 30, 1929. This period was again extended for two years to August 30, 1931 by a convention signed September 3, 1929. At the end of this second extension the Commission was far from completion of its work, and the United States sought an additional extension. However, the Mexican government raised objections to the granting of any further time, and no agreement on the matter was reached before the specified date of expiration. Accordingly, the Commission ceased to function in August, 1931, at which time only some 148 claims had been disposed of out of a net total of 3,617 filed by both governments. In his special message to Congress of December 10, 1931, President Hoover stated that the American Ambassador at Mexico City was carrying on negotiations with the Mexican government looking to the renewal of the activities of both the General and Special Claims Commissions. One reason for the delay in disposing of claims lay in the difficulty of agreeing upon the neutral member of the Commission. The first Presiding Commissioner, Dr. C. Van Vollenhoven of the

404

CLAIMS COMMISSIONS OF 1923

Netherlands, resigned on August 30, 1927. After long and fruitless efforts to agree upon a successor, the two governments finally resorted to the alternative procedure provided for by the Convention and referred the matter to the President of the Permanent Administrative Council of the Permanent Court of Arbitration at the Hague. That official selected Dr. Kristian Sindballe of Denmark, who was appointed June 16, 1928. Dr. Sindballe served only until July 1, 1929. After another long period of negotiation, the two governments finally agreed upon the appointment of Dr. Horacio F. Alfaro of Panama, who served from May 27, 1930, to the date of expiration of the Commission's activities in August, 1931. Thus, in each of the two periods of extension of the life of the Commission, nearly half of the time was consumed in agreeing upon the neutral member of the Commission. The total number of claims filed by both governments with the Commission was as follows: 2

United States against Mexico Mexico against the United States 2

No. 2,781 836

Amount $513,694,267.17 245,158,395.32

The American claims against Mexico were classified as follows:

Classification Contracts, Mexican government Contracts, National railways Contracts, States, etc Contracts between private parties Concessions Mining rights Bonds Loans Money orders Currency Reguladora Land dotations Land restitutions Land title nullifications Land nonpayment of taxes Land miscellaneous Subsoil rights Personal property Cattle (1868-1873) Railway shipments

No. 42 31 17 39 20 52 103 24

98 7 3» 69 73 31 557 7

Amount $ 6,223429.23 2,625,128.44 1,833,819.43 48,939,081.83 13.893.811.28 19,928,345.34 39,740,33406 1,114,252.89 155,227.85 4,582,478.52 955421.92 17,009,004.71 1,420,06745 73,364,96O.II 2,314,068.51 56,905,235.10 11,790,014.46 15,727,065.05 51442,466.78 37,814.60

C L A I M S C O M M I S S I O N S O F 1923

405

As in the case of the Commission of 1868, the United States filed with the commissions of 1 9 2 3 a notice of every possible claim of which it had record, without attempting to pass in advance upon the merits of the claims filed. T h e reasons for this procedure were, first, that since a judicial forum had been established for the hearing of claims it was desired to give every American claimant his day in court; and second, that under the terms of the Convention, all outstanding claims, whether presented to the Commission or not, were to be considered as thenceforth settled and barred forever from further hearing. Hence it was important that notice of all possible claims be given to the Commission before the time of filing had expired, although it was fully realized by the government of the United States that a large number of these claims would subsequently turn out to be without any merit. U p to August 30, 1931 (the date of cessation of its activities), the General Claims Commission had heard and acted upon 1 3 9 claims of the United States against Mexico and 9 claims of Mexico against the United States, or a total of 148 claims in seven years. Of the 1 3 9 American claims, awards were made in 89 cases for a total amount of $ 2 , 5 9 9 , 1 6 6 . 1 0 (plus varying amounts of interest in 3 1 of these cases). T h e total amount claimed in these 89 cases was $4,607,926.59; hence the awards rendered amounted to approximately 56 per cent of the sums claimed. T h e remaining American claims acted upon by the Commission, 50 in number, were either disallowed on their merits or dismissed for want of jurisdiction. Classification Maritime losses Customhouse losses Banking losses Illegal taxes Interference with business Abandonment of property Deaths Arrest — Imprisonment . . Personal injuries Kidnapping — Ransom .. Expulsion Military service

No. 44 6

31

34 37

463 431

Amount 1,140,798.59 223,438.00 499,501.14 30,185,599.75 26,881,27440 58489,505.28

19.713.241-50

162

4,282,022.31

64

1,684,950.86

4 4

305,806.58

19

246,620.00 45,000.00

406

CLAIMS COMMISSIONS OF 1923

Of the 9 Mexican claims against the United States acted upon by the Commission, awards were made in 5 to a total amount of $39,000. The sums claimed in these 5 cases amounted to $283,972.52; hence the proportion of amounts claimed to amounts awarded (excluding cases dismissed or disallowed) was approximately 14 per cent. Of the remaining 4 Mexican claims acted upon by the Commission, one was disallowed and 3 were dismissed. The Commission acted by majority vote and dissenting opinions were allowed. In the 148 cases passed upon, the decision of the Commission was unanimous in 129 cases. In the remaining 19 cases, the American Commissioner (Mr. Fred K. Nielsen) dissented in 13 and the Mexican Commissioner (Mr. G. Fernández MacGregor) in 6.8 Decisions

on the Calvo

Clause

Of the decisions rendered by the Commission, perhaps the most important from the standpoint of international law and the future of diplomatic protection was that given in the North American Dredging Company case.4 This decision was directly upon the question of the validity of the Calvo clause in a contract as a bar to the bringing of a claim on behalf of the contractors before the Commission. The case came before the Commission on a motion to dismiss brought by the Mexican government on the ground that the Commission could not take jurisdiction over the claim * These figures clearly indicate that national members of claims commissions are by no means indisposed to decide cases against their own governments. For example, it might roughly be said that the Commission decided 93 of the cases before it in favor of the United States (89 awards in favor of the United States plus 4 claims of Mexico against the United States dismissed). From these decisions the Mexican Commissioner dissented in only 6 instances, leaving 87 cases in which he joined with the other Commissioners in deciding against the contentions of his own government. The number of decisions in favor of Mexico was roughly 55 (50 American claims dismissed or disallowed plus 5 awards in Mexican claims). From these the American Commissioner dissented 13 times, leaving a total of 42 cases in which he joined with the majority in rejecting the contentions of his own government. There is no record, however, of a national commissioner dissenting from a decision in favor of the contentions of his own country. * Docket No. 1223, Opinions September 8, 1923, Vol. I, p. 21.

of Commissioners

under

the Convention

of

CLAIMS COMMISSIONS OF 1923

407

because of the voluntary renunciation of the right of diplomatic protection by the claimant company. The Commission upheld the motion and dismissed the claim. This decision was supported by a very long opinion which discussed the legal questions involved in the Calvo clause in great detail. The claim was based on alleged breaches by the Mexican government of a contract between it and the claimant company for dredging the port of Salina Cruz. The contract was entered into on November 23, 1912, and contained a broad Calvo clause (Article 18) which was worded as follows: The contractor and all persons who, as employees or in any other capacity, may be engaged in the execution of the work under this contract either directly or indirectly, shall be considered as Mexicans in all matters, within the Republic of Mexico, concerning the execution of such work and the fulfillment of this contract. They shall not claim, nor shall they have, with regard to the interests and the business connected with this contract, any other rights or means to enforce the same than those granted by the laws of the Republic to Mexicans, nor shall they enjoy any other rights than those established in favor of Mexicans. They are consequently deprived of any rights as aliens, and under no conditions shall the intervention of foreign diplomatic agents be permitted in any matter related to this contract.

It will be noted that this clause does not merely provide for the forfeiture of the contract in the event of recourse to diplomatic protection, but expressly prohibits the intervention of foreign diplomatic agents under any circumstances. In pursuance of this contract, the corporation brought its equipment to the port of Salina Cruz and commenced extensive dredging operations. The Madero government, which had entered into the contract, at first made payments in accordance therewith, but following the outbreak of the Huerta revolution these payments ceased. As a result of this fact, the company finally stopped its dredging operations and removed its equipment. In addition to large sums due for dredging work performed, the company also had sustained certain losses through interruptions in its work resulting from the alleged tortious conduct of Mexican officials. Subsequently the company upon several occasions presented its claims to the administrative branch

4O8

CLAIMS COMMISSIONS O F 1923

of the Mexican government but did not succeed in obtaining any payments thereon. No steps were taken to sue the Mexican government in the local courts. 5 After the adoption of the General Claims Convention of September 8, 1923, the company brought its claim to the attention of the government of the United States, and this claim was in due course filed with the Commission. The Mexican government filed no answer to the claim but merely moved to dismiss it on the ground of the existence of the Calvo clause in the contract. This motion was in the nature of a demurrer and raised no issue as to the facts set forth in the memorial or as to the merits of the claim itself, but merely attacked the jurisdiction of the Commission. The long and involved course of reasoning by which the majority of the Commission sought to justify its decision upholding the motion to dismiss is marked by various logical inconsistencies and cannot be said to have clarified the situation in regard to Calvo clauses to any great extent. In substance, the Commission held that no absolute rule could be laid down either for or against the validity of Calvo clauses, but that each case would have to be considered on its merits. The Commission then undertook to consider the facts of the case at issue and found that the course of action of the company had been such as to preclude it from bringing its claim before the Commission. In doing so, the Commission did not confine itself to the facts as alleged in the memorial (which were the only facts officially before it) but made various findings of fact on which little or no evidence had been presented. On the basis of these findings the Commission apparently concluded that the company had acted 5 Among the reasons given by the company for not suing the Mexican government in the courts were the following: i ) the administrative officials to whom the claims were presented informed the company that the Mexican government did not have the money to pay the claims, that when money was available a settlement would be reached, and that in the meantime a suit against the government in the courts would be regarded as an unfriendly a c t ; 2) owing to the revolutionary conditions existing in Mexico an attempt to sue the government would have been fruitless; 3 ) as a result of the losses sustained by the company it had been forced into liquidation and did not have the funds necessary for litigation. See Petition to Rehear filed by the Agent f o r the United States in this case.

C L A I M S COMMISSIONS OF

1923

409

in bad faith in its dealings with the Mexican government and hence should be held to the terms of its contract. On the general question of the effect of C a l v o clauses upon the exercise of the right of diplomatic protection, the Commission seemed for the most part to support the position maintained by the United States.

T h u s it held that whenever a Calvo clause in a

contract was " so phrased as to seek to preclude a Government from intervening, diplomatically or otherwise, to protect its citizens whose rights of any nature have been invaded by another Government in violation of the rules and principles of international l a w , " it would have no hesitancy in pronouncing such a clause void.

Y e t it passed over without comment the rather plain

provision of Article 1 8 of the company's contract that " under no conditions shall the intervention of foreign diplomatic agents be permitted in any matter related to this contract." T h e Commission insisted throughout its opinion that a Calvo clause could have no effect in barring a claim based on an alleged violation of international law.

In order that there might not be

any doubt on this point, the American Commissioner ( E d w i n B. Parker), in his concurring opinion, stated that in the view of his fellow Commissioners: Article 18 was not intended to and does not prevent claimant from requesting its Government to intervene in its behalf diplomatically or otherwise to secure redress for any wrong which it m a y heretofore have suffered or may hereafter suffer at the hands of the Government of Mexico resulting from a denial of justice, or delay of justice, or any other violation b y Mexico of any right which claimant is entitled to enjoy under the rules and principles of international law. whether such violation grows out of this contract or otherwise.

Y e t the memorial in this case expressly alleged that the losses sustained by the company were the result of violations of rules and principles of international law by the Mexican government and its officials, and this allegation had not been put in issue by the Mexican government on the pleadings. It would accordingly seem that under the ruling of the Commission, the Mexican motion should have been disallowed as a matter of course and the case heard on its merits to determine whether the alleged violations of international law had in fact taken place.

Y e t the Com-

410

CLAIMS COMMISSIONS OF 1923

mission ignored this crucial point in its opinion, and upheld the motion because the company had not exhausted its remedies in the local Mexican courts. One is left to infer that, in the eyes of the Commission, the acts complained of, being related to a contract, could not of themselves be regarded as international delinquencies giving rise to a claim; that they could only become such in the event of a denial of justice in the courts.' However, this position is inconsistent with the view expressed by the Commission in regard to contract claims in general. Where no Calvo clause was involved, the Commission received claims based on contract without hesitation and made awards on them without regard to whether local remedies had been pursued or not.7 Various other points in the Commission's opinion in the North American Dredging Company case present logical difficulties. For example, while holding that any attempt by an individual to bind his government in the lawful exercise of its rights of diplomatic protection was void, the Commission nevertheless held that an individual could, by his own contract, mark out the limits of the right which his government could exercise. Thus the Commission stated as follows: T h e o b v i o u s purpose of such a contract is t o p r e v e n t abuses of the right t o protection, n o t t o d e s t r o y the right itself — a b u s e s w h i c h are intolerable t o any s e l f - r e s p e c t i n g nation and are prolific b r e e d e r s of international friction. T h e purpose of such a contract is t o draw a r e a s o n a b l e and practical line b e t w e e n M e x i c o ' s s o v e r e i g n right of jurisdiction within its o w n territory, o n 6

This inference is borne out by the following statement subsequently made by the Mexican Commissioner in the International Fisheries case: " It is worthy of note that in this case as in that of the North American Dredging Company, the American Agency maintained that the question was not one of non-fulfillment of contract, but one of international delinquency incurred directly by the State, of a denial of justice, of a wrongful act, and thus the Memorial of said claim spoke of interruptions to the work owing to arbitrary orders given by Mexican Government officials, of the wrongful detention of a dredge and its accessories, and of two launches which were a total loss. Notwithstanding the aspect given to them by the American Agency, the facts were held by this Commission to be matters relating to the contract to which the North American Dredging Company of Texas was a party." Opinions of Commissioners, Vol. I l l , p. 220. Italics in original. 7 See the opinion of the Commission in the Illinois Central Railroad case, Vol. I, p. 18.

CLAIMS COMMISSIONS OF 1923

411

the one hand, and the sovereign right of protection of the government of an alien whose person or property is within such territory, on the other hand. Unless such line is drawn and if these two coexisting rights are permitted constantly to overlap, continual friction is inevitable.

In this interpretation of the " obvious purpose " of Article 18 of the company's contract, the Commission seems to have endowed the individual contractor with unusually wide powers of control over the " sovereign right of protection " possessed by his government. The Commission likewise appears to have ignored the rather plain purpose of Article 18, which was to prevent the recourse to diplomatic protection in anything connected with the contract, quite regardless of the circumstances. In another place, the Commission interpreted Article 18 as merely requiring the company to exhaust its local remedy before it could appeal to its government for protection. As stated by Commissioner Parker in his concurring opinion, " Article 18, as thus construed, in effect does nothing more than bind the claimant by contract to observe the general principle of international law which the parties of this Treaty have expressly recognized in Article 5 thereof." However, Commissioner Parker did not explain why Article 5 of the Convention, which specifically stated that " no claim shall be disallowed or rejected by the commission by the application of the general principle of international law " regarding exhaustion of local remedies did not apply to this case. The majority of the Commission sought to avoid this difficulty by the circuitous argument that, since the company had not exhausted its local remedies in accordance with its contract, it could not properly " present" its claim to its own government within the meaning of Article 1 of the Convention, and hence Article 5 could not apply to it, since that article was limited to claims " rightfully presented " under Article 1. In other words, the Commission decided in effect that where an individual had expressly agreed by contract to be bound by the general principle of international law requiring the exhaustion of remedies, he could not have the benefit of the subsequent express waiver of that rule by the two governments. If, as Commissioner Parker stated, Article 18 of the contract did no more than incorporate the general

412

CLAIMS COMMISSIONS OF 1923

rule of law into the contract, it was apparently a superfluous provision since the company was bound by such rule anyway. It is very difficult to see why the express recognition of a rule of law in a contract should have deprived the company of the benefit of a subsequent waiver of that rule. The opinion of the Commission in the North American Dredging Company case has been the subject of considerable discussion since it was rendered. While the comments of authorities on international law have tended to be somewhat critical of the Commission's logic, the decision has been upheld as good law in several instances, notably by the British government in connection with the proposed codification of international law under the auspices of the League of Nations, and by the Anglo-Mexican Claims Commission established under the Convention of November 19, 1926, between Great Britain and Mexico. In preparation for the First Conference for the Progressive Codification of International Law held at the Hague in 1930, the Preparatory Committee sent to the various governments a questionnaire aimed to elicit their views on the subjects selected for codification. Among the questions asked was the following: Point X I . Circumstances in which a State is entitled to disclaim responsibility . . . d) What are the conditions which must be fulfilled when the individual concerned has contracted not to have recourse to the diplomatic remedy? 8

In its reply to this question the government of Great Britain stated as follows: His Majesty's Government in Great Britain accept as good law and are content to be guided by the decision of the Claims Commission between the United States of America and Mexico in the case of the North-American Dredging Company of Texas of March 3 1 , 1926, printed in the volume of the " Opinions of the Commissioners," page 21. It is laid down in this opinion that a stipulation in a contract which purports to bind the claimant not to apply to his Go%'ernment to intervene diplomatically or otherwise in the event of a denial or delay of justice or in the event of any violation of the rules or principles of international law is void, and that any stipulation which purports 8 League of Nations, Conference for the Codification of International Bases of Discussion, Vol. I l l , Doc. C. 75, M. 69. 1929. V., p. 133.

Law,

CLAIMS COMMISSIONS OF 1923 to bind the claimant's Government not to intervene in respect of violations of international law is void, but that no rule of international law prevents the inclusion of a stipulation in a contract between a Government and an alien that in all matters pertaining to the contract the jurisdiction of the local tribunals shall be complete and exclusive, nor does it prevent such a stipulation being obligatory, in the absence of any special agreement to the contrary between the two Governments concerned, upon any international tribunal to which may be submitted a claim arising out of the contract in which the stipulation was inserted. 9

The meaning of this statement is not entirely clear. On the one hand, the British government holds that a Calvo clause which purports to bind the claimant not to apply to his government to intervene diplomatically or otherwise in the event of denial or delay of justice or of " any violation of the rules or principles of international law " is void. On the other hand, it is stated that no rule of international law prevents the inclusion in a contract of a stipulation that in all matters pertaining to the contract the jurisdiction of the local tribunals shall be " complete and exclusive." Apparently, in spite of the words " complete and exclusive," the British government does not conceive of the Calvo clause as having any greater effect from an international viewpoint than the usual rule of international law requiring the exhaustion of local remedies. The views of the other governments replying to this question were not uniform, but on the whole they tended toward the position that a Calvo clause is without effect in barring diplomatic interposition in the event of a denial of justice or other violation of international law. The government of the United States cited the North American Dredging Company case as authority for the view that, " in general, no contract made by an individual to renounce the diplomatic remedy can have effect if its enforcement would result in any changes or modifications in the ordinary rules of international law." The United States also cited precedents in support of the view that where there is a " confiscatory breach of contract" an agreement to resort to the local courts is no longer binding on the contractor.10 8

Ibid., p. 134.

10

Ibid., Supp., p. 22.

CLAIMS COMMISSIONS OF 1923 The Committee summarized the views of the various governments as follows: T h e replies in general state that a contractual undertaking b y a private person not to have recourse to the diplomatic remedy does not bind the State of which he is a national and that, accordingly, the international responsibility of the other State persists.

One m a y , however, contemplate a mitigation of

the strictness of this rule borrowed from international jurisprudence.

The " mitigation " of the rule suggested by the Committee as a basis of discussion was as follows: I f in a contract a foreigner makes a valid agreement that the local courts shall alone have jurisdiction, this provision is binding upon any international tribunal to which a claim under the contract is submitted; the State can then only be responsible for damage suffered by the foreigner in the cases contemplated in Bases of Discussion Nos. 5 and 6. 1 1 11 Bases of Discussion, op. cit., p. 135. Bases of Discussion Nos. 5 and 6 referred to denial of justice in the local courts. The Research in International Law of the Harvard Law School drafted the following rule on Calvo clauses for consideration of the Hague Codification Conference: " A state is not relieved of responsibility as a consequence of any provision in its own law or in an agreement with an alien which attempts to exclude responsibility by any waiver by the alien of the protection of the state of which he is a national." The comment on this article sets forth that, according to the prevailing view, a free stipulation to submit disputes to local courts is merely confirmatory of the general rule of international law on the subject. Where, however, the renunciation goes so far as to preclude recourse to diplomatic protection in cases of denial of justice, such renunciation is not binding upon the claimant's government, " for, as in municipal law private agreement cannot oust the jurisdiction of municipal courts, so in international law the private agreement cannot prevent the employment of international remedies." Furthermore, a confiscatory breach of the contract by the government would relieve the claimant from the stipulation of renunciation. As for the rule evolved by some arbitrators that a Calvo clause is binding upon the claimant but not upon his government, it is " difficult to see how such an inconsistent rule can be applied." Finally, the comment sets forth that the right of a government to submit the claims of its citizens to an international tribunal is superior to the right or competency of the individual to contract it away, " for whatever the individual's power to renounce a personal right or privilege, he does not represent the Government and is, therefore, incompetent to renounce a right, duty, or privilege of the Government." In conclusion, it is stated that, according to the better opinion, a renunciation of protection is " without any effect so far as any change or modification in the ordinary rules of international law are concerned." (Special Supplement to the American Journal of International Law, Vol. X X I I I [April, 1929], pp. 203-215.)

CLAIMS COMMISSIONS OF 1923

415

However, no agreement on the subject was reached at the Codification Conference of 1930. The declaration of the British government that it accepted the decision of the Commission in the North American Dredging Company case as good law was used against it shortly afterward in the claim brought by it on behalf of the Mexican Union Railway, Ltd., a British corporation, before the Anglo-Mexican Special Claims Commission of 1926. This claim was for damages to the company's property and other losses sustained by it as a result of revolutionary acts in Mexico. The Mexican government moved to dismiss the claim on the ground that the company's concession contained a Calvo clause which precluded the claim from being brought before the Commission. This motion was upheld by the majority of the Commission and the claim dismissed. The British Commissioner, Sir John Percival, was not in accord with the decision and did not sign it. In its opinion in this case, the majority expressed its concurrence with the decision in the North American Dredging Company case and with the reasoning upon which that decision was based. It also referred to the fact that the British government had accepted that decision as good law and had agreed to be bound by it. The majority reiterated the view that an individual could not, by his own act, deprive his government " of its undoubted right to apply international remedies to violations of international law committed to his hurt." But this, said the majority, referred to governmental action independent of the wishes or initiative of the injured individual. The claims before the Commission, although public claims in the sense that they were presented by one government to another, were private claims in so far as they aimed at the granting of a financial award to an individual or company. They could not be presented to the Commission without the approval of the individual claimant, since the rules required that the memorial should be signed by the claimant or his attorney. For this reason the presentation of the claim by the government could not be regarded as an action taken independently of the wishes or the interest of the claimant; it was an action the initiative of which rested with the claimant. Hence the Commission felt im-

4Ï6

CLAIMS COMMISSIONS OF 1923

pelled to take account of the prior engagement of the individual claimant not to initiate such action. The Commission stated further that even though some of the acts on which the claim was based might in themselves constitute breaches of international law, the Calvo clause in the contract would still act as a bar to the presentation of the claim to the Commission. The reason for this was, said the majority, that " the responsibility of the State under international law can only commence when the persons concerned have availed themselves of all remedies open to them under the national laws of the State in question." As for the provision in the Convention that no claim should be disallowed because of failure to comply with this rule regarding exhaustion of local remedies, the Commission merely quoted with approval the reasoning advanced by the United StatesMexican Commission for ignoring this provision in the North American Dredging Company case.12 Subsequently the same question came up again before the United States-Mexican Commission in the claim of the International Fisheries Company against Mexico.13 This was the last case acted upon by the Commission before it ceased to function in August, 1931, and reflects the sharp cleavage of views that still exists between the United States and Mexico on the question. The claim was based on damages resulting from the alleged wrongful cancellation by the Mexican government of a concession granted to a Mexican company called " La Pescadora, S. A.," the stock of which was almost entirely owned by the International Fisheries Company, an American corporation. The contract in this case contained the following Calvo clause: T h e Concessionary Company or whosoever shall succeed it in its rights, even though all or some of its members may be aliens, shall be subject to the jurisdiction of the courts of the Republic in all matters the cause and action of which take place within its territory.

It shall never claim, with respect

to matters connected with this contract, any rights as an alien, under any form whatsoever, and shall enjoy only the rights and the measures for en12 Decision printed in American No. 2 (April, 1930), p. 388. 13

Opinions

oj Commissioners,

Journal

of International

Vol. Ill, p. 207.

Law,

Vol. X X I V ,

CLAIMS COMMISSIONS O F 1923 forcing them that the laws of the Republic afford to Mexicans, foreign diplomatic agents being unable therefore, to intervene in any manner with relation to the said matters.

This claim, like the dredging company case, came before the Commission on a motion to dismiss brought by the Mexican government on the ground that the Calvo clause in the contract took the claim out of the jurisdiction of the Commission. The majority of the Commission (consisting of the Presiding Commissioner, Dr. Alfaro of Panama, and the Mexican Commissioner, Mr. Fernández MacGregor) followed directly the decision in the North American Dredging Company case and upheld the motion to dismiss. The American Commissioner, Mr. Fred K. Nielsen, declined to accede to this decision and wrote a long and carefully prepared dissenting opinion in support of his view. In his dissenting opinion, Commissioner Nielsen analyzed in detail the reasoning of the majority not only in the case at issue, but also in the North American Dredging Company case on which it was based. He concluded that the Commission in the dredging company case had misconstrued the language both of the Calvo clause in the contract and the Claims Convention which was the Commission's charter. He argued that the Commission had misconceived or misapplied certain fundamental rules and principles of international law, notably: a) the nature of international law as a law between nations whose operation is not controlled by acts of private individuals; b) the nature of an international reclamation as a demand of a government for redress from another government and not a private litigation; and c) the distinction between substantive rules of international law which a nation may invoke in behalf of itself or its nationals against another nation, and jurisdictional questions before international tribunals which are regulated by covenants between nations. He held that the Commission had nullified the terms of the convention under which it operated by ignoring the stipulation of Article 5 and by altering the meaning of Article 1 through interpolating the word " r i g h t f u l l y " not found in the text; that the Commission had in effect decided that its jurisdiction was determined, not by the convention which brought it into being, but by a private contract to

4x8

CLAIMS COMMISSIONS O F 1923

which the United States was not a party. In conclusion, Commissioner Nielsen pointed out that the decision of the majority in the instant case had not been rendered at a public sitting of the Commission as required by the rules.1* Upon the rendition of this decision, the General Claims Commission went out of existence, the time limit fixed by the Convention for the hearing of cases having expired. T H E SPECIAL CLAIMS

COMMISSION

The Special Claims Commission was established under a convention signed by the two countries on September 10, 1923, for the purpose of disposing of outstanding revolutionary claims against Mexico. The principal reason for the creation of a separate commission to deal with these claims was the desire of the Mexican government to avoid having its responsibility in them determined as a matter of international law. For this reason the Convention provided that the commissioners to be appointed to consider the claims should decide them in accordance with " the principles of justice and equity," the reference to " international law " appearing in the General Claims Convention being omitted. This omission was explained in Article 2 as follows: The Mexican Government desires that the claims shall be so decided because Mexico wishes that her responsibility shall not be fixed according to the generally accepted rules and principles of international law, but ex gratia feels morally bound to make full indemnification and agrees, therefore, that it will be sufficient that it be established that the alleged loss or damage in any case was sustained and was due to any of the causes enumerated in Article I I I hereof. 1 5

The claims to be decided by the Commission were those which arose during the revolutions and disturbed conditions in Mexico during the period from November 20, 1910, to May 31, 1920, and were due to any act by the following forces: 1 ) B y forces of a Government de jure or de facto. 2) B y revolutionary forces as a result of the triumph of whose cause gov14 15

Opinions oj Commissioners, Vol. I l l , pp. 225-286. V. S. Treaty Series, No. 676.

CLAIMS C O M M I S S I O N S O F 1923

419

ernments de facto or de jure have been established, or by revolutionary forces opposed to them. 3) By forces arising from the disjunction of the forces mentioned in the next preceding paragraph up to the time when the government de jure established itself as a result of a particular revolution. 4) By federal forces that were disbanded, and 5) By mutinies or mobs, or insurrectionary forces other than those referred to under subdivisions (2), (3) and (4) above, or by bandits, provided in any case it be established that the appropriate authorities omitted to take reasonable measures to suppress insurrectionists, mobs or bandits, or treated them with lenity or were in fault in other particulars.19

The remaining provisions of the Convention were similar to those of the General Claims Convention, save that a period of two years was allowed for the filing of claims instead of one year, and the Commission was given five years instead of three for the disposition of the claims presented to it. The first meeting of the Commission was held in Mexico City on August 22, 1924, and it was at that time made up of Dr. Rodrigo Octavio of Brazil, Presiding Commissioner, Ernest B. Perry, American Commissioner, and F. González Roa, Mexican Commissioner. The total number of claims filed with the Commission in the prescribed period was 3,176 for an aggregate amount of $421,300,132.41. The life of the Commission under the original convention would have expired in August, 1929, but an extension of two years was agreed upon by the two governments at that time. Failing agreement upon a further extension, the Commission ceased to function in August, 1931, as did the General Claims Commission. In the seven years of its duration, the Special Claims Commission succeeded in disposing of only some eighteen claims (seventeen of which, called the Santa Ysabel claims, were dealt with in one group) and made no pecuniary awards. The action of the majority of the Commission on the claims first submitted (the Santa Ysabel claims) was such as to cause the United States to refrain from submitting further claims for some years. 16

Ibid., Article III.

420

CLAIMS C O M M I S S I O N S O F 1923

The Santa Ysabel Claims The Santa Ysabel claims arose out of the murder of some fifteen American officials and employees of the Cusi Mining Company by armed forces of Francisco Villa near Santa Ysabel in January, 1916. These Americans had withdrawn from Mexico on the request of their own government in 1915 because of the disturbed conditions in the mining region resulting largely from the operations of Villa against the Carranza government. Shortly afterward Villa had been defeated by the federal forces and his revolutionary army dispersed. Thereafter the United States recognized the de facto government of Carranza and reopened its consulates in Mexico. In January, 1916, the officials and employees of the Cusi Mining Company decided to return to Mexico, relying on assurances given by officials of the Carranza government that foreigners would be given full protection. The train on which they were riding was stopped near Santa Ysabel by a band of armed men commanded by a subordinate of Villa, and they were taken from the train and shot in cold blood. Shortly afterward Villa, in an effort to embarrass the Carranza government, conducted his raid upon Columbus, New Mexico, which resulted in the death of seventeen Americans and the sending of the Pershing expedition into Mexico. In 1920, Villa and his men received an amnesty from the Mexican government. The United States presented seventeen claims to the Special Claims Commission on behalf of the heirs and assigns of the fifteen murdered men (two claims were brought on behalf of each of two of the victims). The total amount claimed was $1,225,000. The claims were presented and acted upon as a group. The majority of the Commission decided to disallow them, the American Commissioner dissenting. The basis of the majority decision was that Villa and his men were in reality bandits rather than organized revolutionists, and hence Mexico was not liable under Article 3 of the Convention unless it could be shown that the Mexican authorities had failed to take reasonable steps to suppress Villa or had treated him with

CLAIMS COMMISSIONS OF 1923

421

" lenity." In the opinion of the majority, neither of these things had been established by the government of the United States. The American Commissioner, in his dissenting opinion, held that Villa's activities as a bandit did not prevent him from being a revolutionist at the same time within the meaning of Article 3 of the Convention. Commissioner Perry also held that the Mexican authorities had been at fault in not providing proper protection to the Americans returning to Mexico, and that the Mexican government had clearly treated Villa and his men with " lenity." The decision of the majority in the Santa Ysabel cases caused so much dissatisfaction that no further meetings of the Commission were held until 1931. The resignation of the Presiding Commissioner, Dr. Octavio, was accepted on July 7, 1926, but no successor was named for nearly five years. In March, 1931, it was agreed by the two governments that the personnel of the Special Claims Commission should be the same as that of the General Claims Commission. Thereafter hearings were resumed, and the claim of Naomi Russell was presented. This claim arose out of the death of the claimant's husband in 1912 at the hands of forces under command of Pascual Orozco. Again the majority of the Commission (Dr. Alfaro of Panama and Mr. Fernández MacGregor of Mexico) decided that Mexico was not liable under Article 3 of the Convention for the acts of the forces in question, and disallowed the claim. Again the American Commissioner (Mr. Nielsen) dissented. Thereafter the Special Claims Commission ceased to function, its time of duration as specified by the Convention having expired.

CHAPTER XV SOME

CONCLUSIONS

AT the moment of writing,1 the subject of protection of American lives and property in Mexico is quiescent. The revolutionary régime in Mexico has succeeded in maintaining itself in power for more than a decade, and has given evidence of stability and control equalled by few Mexican administrations in the past. With the assistance of the United States, it has suppressed insurrectionary outbreaks against it without serious disturbance to the economic life of the country at large. The antiforeign feeling of the early years of the revolution seems largely to have spent its force, and foreigners are now apparently better treated than at any time since the revolution broke out in 1910. While the usual run of minor complaints of mistreatment or injustice has not abated, the present situation is such as to allow these complaints to be dealt with individually and amicably. On the oil and land questions, neither government has officially retreated from the theoretical position assumed by it in the course of the heated controversies over these subjects. However, these conflicting views are at the moment of little more than academic interest since the clash of material interests back of them has at least temporarily subsided. In the case of oil, the appearance of salt water in many of the most productive Mexican properties, the discovery of vast new oil-fields in the United States, the increase of production in Venezuela, Colombia, and Soviet Russia, the improvement of refining methods and the general state of overproduction that has depressed the industry have all tended to reduce sharply the interest shown in the exploitation of Mexican oil and to remove in a corresponding degree the psychological attitudes that have led to controversy. In the case of land, the redistribution of holdings under the 1

December, 422

1931.

SOME CONCLUSIONS

423

agrarian laws has come virtually to a standstill. It is now openly admitted by Mexican officials that the agrarian program has not been as beneficial to the native peon as had been anticipated, and that it has had some undesirable consequences. Although individual and community holdings have greatly increased in number, total agricultural production has sharply decreased. The burden of the agrarian debt has become very great. The methods of distributing land have in many cases proved faulty and have encouraged waste and inefficiency. Now that the immediate land hunger of the peasants has been satisfied to a certain extent, the government is turning its attention more to agricultural education and the development of necessary irrigation systems, and the landowner who still has his land is not for the moment being molested. It would be absurd to suppose, however, that the subject of diplomatic protection has been permanently removed as a source of serious controversy between the two countries. A change of administration that should bring the Mexican government into weaker hands, a resurgence of revolutionary activity, a renewed shortage of oil in the United States, a revival of antiforeign feeling, or any other event that seemed to threaten existing American interests in Mexico, would quickly recreate the conditions that have led to controversy in the past and again put to the test the machinery that has been devised for the peaceful solution of disputes of this character. It will be seen from the foregoing survey, that it is possible to find a large amount of evidence both for and against any one of the popular grounds of criticism of the actions of either government on the subject of diplomatic protection. If one comes to the study of the subject with any preconceived notions one way or the other, he will experience little difficulty in confirming his views with what is apparently a conclusive body of evidence. In attempting to draw conclusions from the whole record, one is reminded of the remarks of Carl Becker on the subject of historical research in general: There is nothing you cannot find in the past — except the truth; a truth you can indeed find; any number of truths are there ready to be picked out, and perfectly indifferent to the process. Such facts as the mind is predis-

SOME

424

CONCLUSIONS

posed to select as interesting or important will come out and " speak for themselves."

T h e trouble is, they don't care what they s a y ; and with a little

intelligent prompting they will speak, within reason, whatever they are commanded to speak. 2

It might be shown without difficulty, for example, that on a number of occasions the device of diplomatic protection has been used by American officials as a cover for territorial ambitions or as a means of gaining economic advantages for the United States at the expense of the Mexican people. It could also be maintained that American business men seeking to exploit the riches of Mexico have shown little respect for local institutions, and, while accepting the large profits accruing from a hazardous enterprise, have relied heavily upon their own government to remove the hazards by the exercise of diplomatic interposition. It could furthermore be shown that the government of the United States has often interposed on flimsy ex parte evidence, that it has displayed a surprising lack of consistency in its actions, that it has ignored the decisions of arbitral tribunals on questions of law and has on frequent occasions resorted to logically untenable legal propositions. It could be established with equal certainty, on the other hand, that the officials of the Department of State at Washington, in their actions on questions of diplomatic protection, have consistently endeavored to be governed by legal rules and principles rather than by considerations of immediate self-interest. It could be shown that they have regularly declined to intervene on behalf of American business interests where no violation of international law was apparent. It might be readily maintained that, in comparison with what other nations have done, the United States has been singularly patient with Mexico and has been reluctant to bring pressure to bear on behalf of legitimate American interests in Mexico, even in the face of extreme provocation. A similar set of conflicting factual conclusions might be readily established in regard to the actions of the Mexican officials on the subject of protection. All that can be safely concluded is that the field of protection 2

American Historical Review, Vol. X X V I , No. 4 (July, 1921), p. 641.

SOME CONCLUSIONS

425

represents a continuing clash of material interests between the United States and Mexico, and that this clash of interests will remain a potential source of controversy and ill-feeling to the extent that it is not neutralized by some workable social institution. The device now chiefly relied upon to effect this neutralization is the law of diplomatic protection, which seeks to afford a source of answers to disputes or clashes of interests in this field in something other than the physical strength of the parties. The foregoing survey indicates how this device has operated in daily practice over a period of years. Of course this survey, being concerned primarily with issues that have led to controversy, does not give an entirely fair picture of the operation of the legal process in the field of diplomatic protection as a whole. It does not pretend to set forth all of the instances in which complaints have been settled as legal matters without difficulty. It leaves out of account the many cases in which the government of the United States has declined to espouse the complaints of its citizens against Mexico, either because there has not been a sufficient legal basis for the complaint or for some other reason. It does not mention the numerous cases in which the Mexican government has complied with the requests or demands of the United States without objection. As a matter of fact, a majority of the complaints examined seem to have terminated without controversy. In most of these cases, the available record of the action taken is not complete. An American citizen would complain to his government of some alleged injustice at the hands of Mexican officials; the Department of State would forward the complaint to the Embassy at Mexico City with instructions to investigate it, and, if found to be correct, to present it to the Mexican government with the request that appropriate action be taken to remove the cause of complaint. The Mexican Foreign Office would acknowledge the receipt of the complaint and state that it had been forwarded to the proper authorities of the government for investigation and action. Nothing further would appear in the diplomatic correspondence in regard to the case. One must assume that, at least in a large number of these cases, the action taken was satisfactory

SOME CONCLUSIONS to the government of the United States or to the individuals concerned. Another feature of the institution of diplomatic protection not adequately presented in the foregoing survey is its preventive function. Unquestionably the very existence of the institution operates as a strong inducement to governments and their officials to be more careful in their treatment of foreigners than might otherwise be the case. Fear of possible protests from Washington has probably on many occasions restrained Mexican officials from taking action that might have been inimical to American interests in Mexico. Again, the existence of a body of established rules serves to prevent many incidents involving loss or injury to foreigners from ever reaching the stage of diplomatic discussions. Where there is a recognized rule of law that clearly applies to a particular incident (or is believed to apply by everyone concerned), the question of diplomatic interposition will ordinarily not even come up. In the course of the nineteenth century, a number of rules of law have crystallized out of practice and have served to remove various types of incidents from the arena of diplomatic protection. An example is the rule that diplomatic interposition may only take place on behalf of full-fledged citizens; those who have merely declared their intention of becoming citizens being excluded. Such rules as these undoubtedly operate to prevent the raising of many complaints that might otherwise lead to serious controversies. All of these points would have to be taken into account in arriving at an intelligent judgment as to the practical working of the legal institution of diplomatic protection. As a rule, textwriters give little attention to them, both because of the difficulty of obtaining data in regard to them and because they usually do not raise questions that are of interest from the standpoint of legal theory. Yet they do represent a vitally important side of the institution of diplomatic protection, although for the most part a silent and negative one. But with all due allowance for these factors, it still must be admitted that, taken as a whole, the record of the operation of diplomatic protection in the relations between the United States

SOME CONCLUSIONS and Mexico has been surprisingly bad. As an institution for the peaceful solution of conflicts of interest, its accomplishments have been meager. Instead of removing or neutralizing occasions for controversy, it often seems to have generated them. One is constantly impressed with the fact that, whenever there is a definite clash of material interests, each side is quite able to derive from established legal rules and principles an answer that accords neatly with its own material interests. Too often the institution appears merely as a defense of the status quo and an obstacle to social progress. The crux of the matter is that this set of legal rules, like any other set, no matter how perfectly framed, cannot, in a human society, operate automatically. It must be interpreted and applied by human beings, and in the course of this process human prejudices, preconceptions and value judgments are bound to enter. The most upright intentions and honorable motives will not wholly eliminate the influence of an individual's background and training upon his decisions in contentious legal issues. In the light of the foregoing observations, our first conclusion must be that the law of diplomatic protection as a logical method for arriving at answers to disputes without regard to the immediate interests or relative strength of the contending parties, is consistently ineffective. In the second place, it must be concluded that the failure of diplomatic protection to function as a method of solving international controversies is not due merely to deficiencies in personnel. It is often said that the difficulties surrounding the subject are attributable either to an inherent reluctance of governments to be bound by inconvenient rules of law, or to stupidity and lack of good faith on the part of responsible government officials. These are convenient devils on which to blame the failures of the system, but, in the opinion of the author, they do not provide adequate explanations of those failures. Even in the numerous cases where the good faith of both the United States and Mexico and the intelligence of their officials have not been open to question, we find very much the same sort of difficulties and lack of agreement. At least in recent years, the habit of dealing with questions of diplomatic protection as legal questions has been well estab-

428

SOME CONCLUSIONS

lished, and there is little reason to suppose that any substantial improvement can be effected by further advances along this line. Nor is there reason to look for any notable increase in the intelligence and skill of the government officials who will handle such problems in the future, or in the enlightenment of the public, upon whose views (real or supposed) the course of action of those officials will in large measure depend. While the records of the two governments in these respects have certainly not been all that might be desired, the deviations from the normal have not been sufficiently great to account for more than a small portion of the difficulties surrounding the subject. Nor, in the third place, is there adequate ground for the view that the underlying problems would be solved by the simple abolition of the institution of diplomatic protection itself. Even supposing that the other nations of the world could be induced to consider such a proposal (which is wholly unlikely), it is safe to predict that some substitute would be immediately developed that would be even more undesirable from the Mexican viewpoint. For better or for worse, Mexico forms a part of the international economic and social system. That system is a product of European capitalistic civilization, and embodies certain notions of order and security for personal and property rights that are deemed essential for its successful operation. The institution of diplomatic protection has been developed primarily as a means of maintaining conditions of order and security for international trade and intercourse, in those countries where the local institutions might not otherwise provide them. To abolish the institution might well lead to a revival of the practice of territorial conquest as a means of accomplishing the same object. A fourth conclusion would be that diplomatic protection cannot be made to function perfectly merely by adding to or clarifying the existing rules of law. The foregoing survey fails to bear out the widely held view (especially prevalent among students of international law) that the difficulties surrounding the subject are due primarily to a shortage of definite and recognized rules. This view assumes that by steadily increasing the number of existing rules and principles, we would reduce by just so much the area

SOME CONCLUSIONS

429

in which controversies arise, and that we might eventually reach the point where every possible conflict of interest in this field would be covered by a fixed and precise rule of law. This notion is based upon a conception of the nature of law that, in the opinion of the author, is open to grave question. It assumes a static quality in the types of clashes of interest falling within the scope of legal institutions which has little basis in fact. Apparently the one thing about which we can be sure is that, however extensive the body of legal rules may become, there will always be a constant supply of new situations for which the existing body of laws does not provide automatic answers. It is these new situations that cause most of our difficulties. One observes, for example, quite as many controversies in those fields in which rules and principles are plentiful as in those in which they are scarce. Progress in the reduction of controversies, in other words, is apparently to be sought as much through the development of methods of dealing with situations not yet encountered as through the accumulation of fixed rules based on past cases. In brief, the main defects of the institution of diplomatic protection are the defects of international law itself. Like all law it cannot be applied by robots, mechanically fitting rules to situations. Like all law its importance lies in affording a solution, in terminating a controversy, more than in the nature of the solution or the manner of the termination. In a great many instances, the original complaint is a matter of minor substantial importance but the imponderable elements of national pride and prestige make mountains out of molehills. If there were an established method for reaching a solution, both foreign offices would readily accept it whether or not the result involved, on the one side, an obligation to pay damages, or, on the other, a failure to secure pecuniary redress for a citizen. This type of minor claim might well be disposed of via the route of diplomatic protection if the international legal system provided fora ready at hand for litigation and determination of causes. Too often petty claims which are at first espoused as a matter of habit are persisted in as a matter of national pride, and retraction is difficult. Each government insists upon the correctness of its own one-sided view. There is no

43°

SOME CONCLUSIONS

established and accepted arbiter. The machinery for setting up a tribunal is too cumbersome; reliable judicial timber is too scarce. There are of course cases which are utilized merely as pretexts to achieve some ulterior end. Until the international system is so far perfected as to eliminate all diplomatic pressure to serve national ends, these cases will continue to trouble the waters regardless of the improvement of the rules governing diplomatic protection. There are also cases in which the economic stake of the citizen is so large as to constitute a national interest. Both the legal and the economic set-up must be altered before these difficulties will be eliminated. No set of rules of diplomatic protection can wholly suffice. It is therefore in the improvement of the whole legal process as applied to international affairs rather than of the institution of diplomatic protection itself, that the hope for the future lies. As already indicated, diplomatic protection will probably not be abandoned or abolished, although its incidence may be softened by harmonious relations which will themselves be the product of well-ordered internal conditions in countries such as Mexico. If Mexico should unhappily again be torn by internal disturbances, the old rules will be applied in the old way unless by that time the fundamental philosophic approach to international law has changed, or the world order has undergone an equally drastic (and equally improbable) metamorphosis.

INDEX Names in italics arc names of cases acted upon by Claims Commissions. The dates following these names are those of the conventions under which the Commissions were established. Ada, The (1868), 2 1 9 - 2 2 0 Agrarian r e f o r m , 320, 326-328, 330, 3 6 7 - 3 8 1 , 422-423 A l a m â n , Lucas, 17 Alexander, Abel G. (1868), 2 1 0 - 2 1 1 Alfaro, Horacio F., 404, 417, 421 Alien L a n d Law, 390-391 Aliens, see Foreigners American citizens in Mexico, complaints of mistreatment, 17, 18, 20-23, 55, S9> 76, 77, 79, 82, 107, 108, 1 1 4 , 308, 309, 3 1 2 , 322, 323; d u t y t o protect, 87, 157, 190, 2 3 1 , 3 2 3 ; expulsion of, 39-40, 83, 1 0 4 - 1 0 5 , 127 Anderson and Thompson (1868), 1 7 3 178, 183, 213 Anglo-Mexican Special Claims C o m mission of 1926, 4 1 5 - 4 1 6 A r b i t r a t i o n of claims, 2 6 - 3 1 , 36-38, 4 0 42, S i - 5 4 , 92-98, 272-273, 34S, 4 0 1 421 Arista, M a r i a n o , 64 Arms, embargo c n , 317, 3 2 1 Arnold, m u r d e r of, 286 Article 27, Mexican Constitution of I 9 I 7 , 330, 336, 341, 343, 344, 346-348, 350, 3SS-357, 363, 370-373, 376-378, 382, 383, 394 Associated Press, 310, 3 1 1 Avila, Eleuterio, 147, 148 Baldwin, J o h n , 22 Baldwin, Leon, 289-291, 295-298 Banditry, 274, 2S9-291, 3 2 1 , 322, 329 Barron, Forbes, a n d C o m p a n y , m , 1 1 2 Batopilas Mining C o m p a n y , 164 B a y a r d , T h o m a s F., 197, 234, 2 3 9 - 2 4 1 , 243, 247, 248, 250, 252, 256-263, 289297 Becker, Carl, cited, 423-424 Beiden, J o h n , 233-235 Beiden, Samuel A. (1868), 2 0 7 - 2 1 0 Bensley, John (1849), 277-278 Black, R. W., and N. L. Stratton ( 1868), 224-225 431

Blaine, J a m e s G., 296, 297 Blumhardt, William (1868), 173, 2 1 8 219 Board of Claims of 1839, 2 7 - 3 1 , 3 3 - 3 5 , 38, 43-44, 52, 56, 120, 233 Board of Claims of 1849, 48, 5 1 - 5 4 , 56, " 4 , 233, 275-278, 283 B o a r d of Liquidation, Mexican, 134, 136, 213, 214 Bocanegra, José, 40 Boisville, F r a n k J., 184 Borchard, Edwin W., 5 Border troubles, 66, 67, 70, 84, 92, 106, 109, 114, 116, 166, 329 Bowen, Smith (1868), 172 Brach, Rudolph (1868), 215 Bragg, E d w a r d S., 265, 290, 291, 294, 295 Brainard, D. D., and Company (1868), 132, 134, 173, 216 " Brazona, T h e , " 22 Briggs, Margaret (1868), 223-224 British subjects in Mexico, protection of, 59, 90, 299 Bronner, Frederick (1868), 75, 205 B r y a n , William Jennings, 318, 328 Bucareli Conference of 1923, 3 5 2 - 3 5 5 , 357, 360, 361, 364, 377, 378, 401 Buchanan, James, 45-47, 79, 83, 85-90 Bullington, J o h n P., cited, 381 Burgess, Snow and (1868), 218 Bustamente, Anastasio, 17 Butler, Anthony, 1 5 - 1 7 , 1 1 8 - 1 1 9 Buxton, George (1868), 2 1 6 - 2 1 7 , 280 Bynkershoek, 252 Cadwalader, J o h n L., 159, 1 6 1 Calhoun, J o h n C., 43 California, 39, 43, 46, 48, 57, 58 Calles, Plutarco Elias, 355, 357, 360, 361, 363-365, 384 Calvo, Carlos, 1 5 5 - 1 5 7 Calvo clause, 64, 391, 398, 400, 406-417. See also Renunciation of diplomatic protection

432

INDEX

Calvo doctrine, 267, 393 Canfield, C. A., 335 Carey, Edward (1868), 226 Carranza, Venustiano, 3 1 4 , 3 1 8 - 3 2 0 , 322-324, 327-330, 337-34°, 342, 343, 345, 3SO, 3 5 1 , 369, 370, 392, 420 Cass, Lewis, 79, 8 1 - 8 3 , 85, 1 2 6 - 1 2 9 Chinese attacked a t R o c k Springs, 273, 293-294 Cinecue, People of (1868), 2 1 7 , 227 Citizenship, 1 6 8 - 1 7 9 , 1 8 1 - 1 8 4 , 186-188, 196,197 Civil W a r , United States, 90-92, 1 3 2 134, 154, 155, 157, 160-163 Claims, American against Mexico, 17—21, 24, 26-29, 3 1 - 3 8 , 43-45, 48, 49, 56, 60, 65, 67, 70-74, 78-8i, 83, 85, 87-89, 92-94, 97, 106, 1 1 3 , 1 1 6 , 120, 142, 156, 199, 248-249, 320, 4 0 1 - 4 2 1 ; Mexican against the United States, 36-37, 67, 72, 92-94, 97, 286, 401-406 Claims, B o a r d of, see B o a r d of claims Claims awards, p a y m e n t of, 33, 43, 44 Claims, contract, 55-59, 63, 1 1 0 - 1 1 2 , 4 1 0 ; exaggerated, 23, 35, 86, 2 1 9 ; f r a u d u l e n t , 54, 94, 98, 226, 228, 2 S 1 ; government, 36-38, 40, 4 1 ; p r i v a t e a n d public n a t u r e of, 97, 4 1 5 , 4 1 7 ; revolutionary, 1 1 3 , 1 1 6 , 4 1 8 - 4 2 1 (see also Revolutionary d a m a g e s ) ; u n f o u n d e d or u n j u s t , 35, 49-50, 227 Claims Commission of 1868, 92-98, 1 1 2 , 1 1 3 , 1 3 0 - 1 3 7 , 138, 148, 155, 1 6 1 - 1 6 4 , 172-179, 182, 194, 195, 197, 201-228, 233, 234, 248, 250, 275, 278-284; of 1926, 4 1 5 - 4 1 6 Claims Commissions, judicial or diplomatic character of, 29-30, 36, 38, 9697; of 1923, 305; General, 379, 380, 400, 4 0 1 - 4 1 8 ; Special, 4 1 8 - 4 2 1 Claims conventions between the U n i t e d States a n d Mexico: April 11, 1839, 26-27, 52; J a n u a r y 30, 1843, 33-36, 40; N o v e m b e r 20, 1843, 38, 51, 5 2 ; J u l y 4, 1868, 92-93, 95, 96, 142, 155, 1 6 1 , 279; September 8, 1923, 401-403, 408; September 10, 1923, 4 1 8 - 4 2 1 Clark, J . R e u b e n , J r . , cited, 365, 366 Clay, H e n r y , 44 Clayton, J o h n M., 56-59 Clayton, Powell, 300-305 Cleveland, Grover, 264 Clifford, N a t h a n , 56, 58, 59

Codification of international law, 4 1 2 414 Columbus, raid on, 322, 420 Commercial regulations, Mexican, n , 1 3 , 14, 7i Commercial relations, 143 C o m o n f o r t , Ignacio, 78, 82 " C o m p e e r , T h e , " 22 Compensation for expropriation of p r o p e r t y , 374, 376-381 Concessions, foreign, 324, 325 Confiscation, 337-340, 344-346, 35», 361, 375, 380, 385-387, 394, 395 Conkling, Alfred, 64-69 Connelly, Agnes, ( 1 9 2 3 ) , 286-289 Conrow, Mary Ann (1868), 283, 284 Constitution, Mexican, of 1824, 1 7 0 ; of 1857, 103-104, 109, 1 4 9 , 1 6 8 , 1 7 1 , 1 7 4 178, 196, 197, 237, 251, 336, 368, 3 7 1 , 377, 392; of 1 9 1 7 , 330, 336, 337, 339, 3 4 i , 343, 344, 346, 347, 348, 350, 3 5 1 , 353-357, 363, 365, 370-373, 376-378, 382, 383, 385, 392, 394, 401 Coolidge, Calvin, 355 C o r w i n , T h o m a s , 129 Costanza, Vicente (1868), 177, 214 Courts, local, jurisdiction over foreigners, see Jurisdiction Cramer, John D. (1868), 226-227 Cuculla, Joseph H. (1868), 162 Cuevas, Luis G., 126, 127 Cullen, J . W., 303 Cummings, Franklin (1868), 163 C u s t o m s laws a n d regulations, Mexican, n - 1 5 , 55 C u t t i n g case, 258, 259, 261, 263-264 Davis, J o h n , 288 Daylight, The ( 1 9 2 3 ) , 235-241, 247, 250, 267 Decrees, Mexican, see Laws a n d decrees, Mexican Delmas, Charles F. (1868), 135, 136 Denial of justice, 67, 145, 148, 157, 158, 166, 199-273, 274, 279, 301, 341, 343, 392, 393, 395, 397 Dennis, John (1868), 284 Diaz, Felix, 3 1 3 Diaz, Porfirio, 8, 105, 1 1 0 - 1 1 6 , 139, 140, 1 4 2 - 1 4 4 , 147, 149, 150, 163, 165, 166, 199, 267, 268, 287, 298-300, 306-309, 313, 327, 367-369, 374, 383, 392 Dickson, P., 223

INDEX D i p l o m a t i c protection, conditions m a k ing f o r resort" to, 1 - 2 ; definition, 2 ; effect of social and economic relations on, 7 ; extent of practice, 1 ; legal basis of, 4 ; legislative limitations on, 1 6 6 198; purpose of, 428; renunciation of, see Renunciation D i p l o m a t i c relations between United States and Mexico, t h r e a t of severance of, 19, 21, 24, 39, 40, 90, 1 2 7 ; severance of, 45, 83, 86, 128, 132 Divine, Hugh, Heirs of (1868), 163 Dixon, Alexander H., 2 1 6 - 2 1 7 , 280 Doheny, E. L., 335 Dolan, Thomas (1868), 205 Donoughho, Cyrus, Heirs of (1868), 216, 280 Dorris, H. A. (1868), 279 Dressel, Rudolph (1868), 1 3 1 Ducoing's case (1839), 120 Eagleton, Clyde, 5 " Eclipse, The," 22 E . D. Sidbury, The, 232 Eigendorf, Franz (1868), 163 Elliott, Benjamin (1868), 215 Ellis, P o w h a t a n , 1 9 - 2 5 , 119, 120, 123 E m b a r g o on arms t o Mexico, 3 1 7 , 3 2 1 English Convention D e b t , 79 E q u a l i t y of t r e a t m e n t of natives a n d foreigners, 4, 135, 145, 146, 148, 154, 157, 158. 162. 296. 297, 342. 343, 393 E s t r a d a , José de, 19 Evarts, William M., 1 1 3 , 139, 143, 144, 1 4 7 - 1 5 0 , 161, 188, 196, 230, 231, 244, 286, 287, 293 Everett, E d w a r d , 65 Exhaustion of local remedies, 60, 68, 69, 107, 109, 134, 136, 145, 146, 154, 1 5 7 159, 166, 199-273, 292-294, 296, 343, 344, 375, 403, 410, 4 " , 413- See also Jurisdiction of local courts a n d local laws over foreigners Expansion, territorial, 7, 14, 17, 55, 80 Expulsion of Americans f r o m Mexico, 39-40, 83, 1 0 4 - 1 0 5 , 127 Failure to prosecute, 274, 279, 289, 301, 3°3i 3°5- See also Police protection Fernandez, Candido, 300-302 Fernandez, José, 237, 238 Feudalism in Mexico, 307, 367 Filibustering, 55

433

Fillmore, Millard, 64 Fish, H a m i l t o n , 105, n o , 1 1 2 , 138, 153, 1 5 6 - 1 5 8 , 1 6 2 - 1 6 4 , 179, 180, 184-188, 285, 286 Fletcher, H e n r y P., 329, 339~34i Force, armed, proposals to resort to, 18, 25, 45, 47, 48, 79, 80, 82, 84, 86-100, 114, 324, 325 Forced loans, 89, 1 1 4 , 1 1 6 , 1 1 7 - 1 5 1 , 152, 159, 166 Forceful intervention, occupation of Vera Cruz, 319, 3 2 0 ; Pershing expedition, 322-324, 330, 420 Foreign concessions, 324, 325 Foreigners, hostility t o w a r d , 17, 20, 32, 55, 62, 99 (see also American citizens in Mexico; Chinese a t t a c k e d ) ; laws governing, see Jurisdiction of local courts o v e r ; matriculation of, see M a t r i c u l a t i o n ; police protection, 166, 2 7 4 - 3 0 5 ; prohibited f r o m engaging in • retail trade, 3 9 ; p r o p e r t y ownership, 167, 1 7 0 - 1 7 2 , 1 7 3 - 1 7 9 , 1 9 4 - 1 9 8 , 330, 382-400; rights of, 167, 1 8 1 , 182, 184, 187, 1 9 3 ; t r e a t m e n t of, see E q u a l i t y of t r e a t m e n t ; Exhaustion of local remedies. See also American citizens; French citizens; British subjects F o r s y t h , J o h n , 1 9 - 2 1 , 78-83, 87, 120, 124-129 Foster, J o h n W., 1 0 5 - 1 1 6 , 1 3 7 - 1 5 0 , 1 5 3 156, 158, 164, 1 8 3 - 1 8 7 , 1 9 4 - 1 9 6 , 199, 200, 2 2 9 - 2 3 1 , 244, 248, 260, 285 Free zone, 1 0 5 - 1 0 6 Frelinghuysen, Frederick T., 1 8 9 - 1 9 3 , 196, 233, 235-239 French citizens, protection of, in Mexico, 59, 90, 1 2 1 , 122 Fretz, Garrison and (1868), 202 Gadsden, J a m e s , 69-78, 82 Gadsden, James (1868), 73 Gadsden T r e a t y , 73, 74, 96, 238 Gaines, confinement of, 75 Garay grant, 57-59, 62-64, 72, 73 Garcia, B e n j a m i n Y., 303 Gardiner, George A. (1849), 54 Garrison and Fretz (1868), 202 General Claims Convention of September 8, 1923, 401-403, 408 Gerster, Victor, 303 Gibbs, Charles D. (1868), 227 Glenn, Margaret (1868), 279-280

434

INDEX

Glover, Mather and (1868), 2 1 1 - 2 1 2 G r a n t , Ulysses S., 109, 114 G r e a t Britain, protection of s u b j e c t s in Mexico, 59, 90, 299 Green, Alfred A. (1868), 225 Green, B e n j a m i n E., 42, 43 Green, Michael, 300-302 G r e s h a m , W a l t e r Q., 268, 270 Grotius, 3, 252, 254, 25s Gruening, Ernest, cited, 7 G u a d a l u p e Hidalgo, T r e a t y of (1848), 49. S 1 , SS. 57. 60, 63, 66, 70, 73, 92, 207 " H. Killock, T h e , " 75 H a c k e t t , Charles Wilson, cited, 357, 385, 393, 39S Halleck, cited, 333 Hallet a n d Hull, 22 " H a n n a h Elizabeth, T h e , " 22 Hannum, A. B. (1868), 173 H a r d i n g , W a r r e n G., 346, 351 H a r g o u s , L . S., 56-58, 61 H a r v a r d L a w School, Research in I n ternational L a w , 414 H a y , J o h n , 266, 303 Hayes, R u t h e r f o r d B., 1 1 2 , 1 1 3 , 1 1 5 , 166 Hay ward and McGroty (1868), 221 H e n r y , W a l t e r , 144-146, 149 H e r r e r a , J o s é J o a c h i m , 46 Hickman, James P. (1868), 135 Hicks, Bartolo C. (1868), 135 H o d a p p , E d m u n d , 225 H o p p e , H e n r y , 298-299 Houston, John C. (1868), 179 Howard, A. J. (1868), 217 Howell, Alfred (1868), 135 Huasteca P e t r o l e u m C o m p a n y , 364 H u e r t a , Adolfo de la, 345, 346 H u e r t a , Victoriano, 3 1 3 - 3 1 9 Hughes, Charles E v a n s , 346, 3 4 9 - 3 5 1 , 353. 375, 376 H u n t e r , William, 287, 288 H y d e , Charles Cheney, 398-399 Illinois Central Railroad Company (1923), 410 Imperialism, 326 I n d u s t r y , T h e , " 22 International Fisheries Company (1923), 400, 410, 4 1 6 - 4 1 8 I n t e r n a t i o n a l l a w , codification of, 4 1 2 414; diplomatic protection as a

b r a n c h of, 3 - 4 ; research of H a r v a r d L a w School, 414 I n t e r n a t i o n a l s t a n d a r d s of c o n d u c t , 5, 6 I n t e r v e n t i o n , occupation of Vera Cruz, 319, 320; Pershing expedition, 3 2 2 324, 330, 420 I s t h m u s of T e h u a n t e p e c , r o u t e across, 57-59, 61, 62, 64, 65, 73, 8o, 82, 85, 86, 89 J a c k s o n , A n d r e w , 19, 25, 32 J a c k s o n , H e n r y R., 235, 240-261 J a l a p a C o n v e n t i o n of N o v e m b e r 26, 1838, 122 " J a n e , T h e , " 22 Jennings, Laughland and Company (1868),221 Johnson, James (1848), 275-276 Jonan, Augustus (1868), 75, 204 J o n e s , J o h n C., 123 J o y , J o h n C., 235, 245-248, 250 J u a r e z , Benito, 85, 88, 89, 91, 99, 101, 103, 105, 129, 130, 168, 169, 367 J u d i c i a l or diplomatic c h a r a c t e r of C l a i m s commissions, 28-30, 36, 38, 96-97 J u r i s d i c t i o n of local c o u r t s a n d local l a w s o v e r foreigners, 4, 1 2 - 1 3 , 24> 39. 60, 68, 76, 78, 145, 193, 199, 200, 203, 208, 212, 230, 232, 238, 245, 2 5 1 , 255, 256, 260, 266, 267, 271. See also E x h a u s t i o n of local remedies J u s t i c e , denial of, 67, 145, 148, 157, 166, 199-273, 274, 279, 301, 3 4 1 , 343, 392, 393, 395, 3971 local system of, 13, 65, 68, 69, 256, 257 Keller, Edgar (1868), 132 Kellogg, F r a n k B., 355, 361, 384-390, 395-397 Kelsey, John P. (1868), 135, 136, 137 K e n n e d y , Mifflin, 222 Kidder, Sanforth (1868), 173, 223 King, Richard, and Mifflin Kennedy (1868), 222 King of Prussia, a r b i t e r u n d e r C l a i m s C o n v e n t i o n of 1839, 27, 28 K l e m a n ; H E , 261-263 Knapp, M. L. (1868), 135 K n o x , P h i l a n d e r C., 309, 3 1 2 - 3 1 4 La

Abra Silver Mining (1868), 98, 280-281, 298

Company

INDEX L a c u n z a , J o s é , 58, 59 L a f r a g u a , J o s é , 104, 1 0 6 - 1 0 8 , 1 5 4 - 1 5 9 , 1 6 2 , 164, 1 8 2 - 1 8 4 , 186, 1 8 7 , 285 Lagueruene, P. A. ( 1 8 4 8 ) , 2 7 6 - 2 7 7 L a n d tenure in M e x i c o , 307, 368, 369 Lander, C. W., and M. B. ( 1 8 6 8 ) , 2 1 5 , 283 L a n g s t r o t h , J a m e s A., 1 5 3 , 1 5 8 , 1 6 2 , 164 Lansing, R o b e r t , 3 2 1 - 3 2 3 . 338, 339, 342, 393 La Pescadora, S. A., 4 1 6 Lascurain, Pedro, 3 1 1 , 3 1 2 Latimer, E d w a r d , 304, 305 L a w s a n d decrees, Mexican, agrarian r e f o r m : J u n e 25, 1856, 370, 3 7 3 , 3 8 1 ; J a n u a r y 6, 1 9 1 5 , 327, 328, 370, 3 7 3 , 3 7 6 ; August 15, 1 9 1 6 , 3 9 2 , 3 9 3 ; January 10, 1920, 3 7 7 ; D e c e m b e r 3 1 , 1 9 2 3 , 3SS, 3 8 4 - 3 8 6 , 390, 3 9 1 , 3 9 4 - 3 9 6 , 3 9 8 ; c u s t o m s , 1 1 - 1 5 , 5 5 ; foreigners a n d naturalization, J u n e 7, 1886, 194, 1 9 7 ; jurisdiction of local, o v e r foreigners, see Jurisdiction ; matriculation of f o r eigners, M a r c h 16, 1 8 6 1 , 168, 169, 173. 174. 176, 177, 1 8 1 - 1 8 3 ; M a r c h 1 3 , 1863, 1 6 9 , 1 7 9 ; D e c e m b e r 6, 1866, 169, J 7 3 , 1 7 6 , 1 8 1 - 1 8 3 ; o w n e r s h i p of real p r o p e r t y b y foreigners, M a r c h 1 4 , 1842, 170, 1 7 1 , 1 7 5 ; February 1, 1856, 1 7 1 , 1 7 2 , 176, 1 9 5 ; p e t r o l e u m l a w of D e c e m b e r 26, 1 9 2 5 , 3 5 5 , 358, 3 6 0 - 3 6 4 , 3 9 8 ; J a n u a r y 3, 1928, 363, 365 ; Spanish l a w s governing subsoil deposits, of M a y 22, 1 7 8 3 a n d D e c e m ber 26, 1789, 3 3 3 , 3 3 4 : m i n i n g c o d e s of 1884, 1892 a n d 1909, 334, 347, 348, 35 2 > 3S3 ; decree of J a n u a r y 7, 1 9 1 5 , 3 2 8 ; April 1 3 , 1 9 1 7 , 3 3 9 ; February 19, 1 9 1 8 , 340, 3 5 1 , 3 5 6 ; M a y 18, 1 9 1 8 . 341, 351. 3 5 6 ; J u l y 3 1 , 1 9 1 8 , 3 4 1 , 343, 345, 3 5 1 , 3 5 6 ; Reform L a w of J u l y 13, 1859, 104, 1 0 5 ; tariff laws, 1 1 - 1 5 League of N a t i o n s , codification of i n t e r national l a w , 4 1 2 - 4 1 5 Leggett, A a r o n , 22 Legislative limitations on d i p l o m a t i c protection, 1 6 6 - 1 9 8 Leon, Martin de ( 1 8 6 S ) , 1 7 3 Lerdo d e T e j a d a , Miguel, 78 Lerdo de T e j a d a , Sebastian, 100, 1 0 4 106, 108, 1 1 0 , H I , 1 1 3 , 1 3 7 , 1 3 9 , 1 5 4 Letchcr, R o b e r t , 6 0 - 6 4

Lieber, Francis, 96, 1 3 1 , 1 3 2 , 1 3 7 , 174, 1 7 7 , 178, 2 0 1 - 2 0 3 , 208, 210, 2 1 5 , 220, 2 2 1 , 279 Light, William W. ( 1 8 6 8 ) , 281 Lilla, Angelo Maria, 104, 105, 180, 184 L i m a n t o u r , José, 306 Lind, J o h n , 3 1 8 L o a n s , forced, 89, 1 1 4 , 1 1 6 , 1 1 7 - 1 5 1 , 1 5 9 , 166

435 163, 212-

182-

152,

McAtten, Salome and John ( 1 8 6 8 ) , 1 7 3 , 223 M c B a i n and Rogers, cited, 3 7 1 M c C r e a l y , T h o m a s , and Angelo Maria Lilla, 104, 1 0 5 , 180, 1 8 2 - 1 8 4 M a c G r e g o r , G. Fernandez, 406, 4 1 7 , 4 2 1 McGroty, Hayward and ( 1 8 6 8 ) , 2 2 1 M c L a n e , Louis, 18, 19 M c L a n e , Robert, 85, 89, 90, 1 2 9 MacManus Brothers (1868), 133-136, 141 McMerty, John ( 1 8 6 8 ) , 2 1 4 M a d e r o , Francisco, 3 0 8 - 3 1 0 , 3 1 2 - 3 1 4 , 369 Manassee, J. S., and Company (1868), 214 " M a n i f e s t Destiny," 2, 55, 8 0 - 8 1 M a n n i n g , T h o m a s C., 197, 198 M a n n i n g , William R., cited, 11, 13, 1 5 M a r c y , William L., 72, 74, 76, 78 Mariscal, Ignacio, 180, 189, 190, 197, 198, 200, 2 3 2 - 2 5 6 , 258, 260, 265, 266, 269, 2 7 1 , 288, 2 9 5 - 2 9 8 , 300, 3 0 1 Marshall, Alfred F. ( 1 8 6 8 ) , 2 1 5 " M a r t h a , T h e , " 22 M a r t i n e z , Carlos Ríos y, 75 Mary Brewer, The ( 1 8 6 8 ) , 2 1 1 Mather and Glover ( 1 8 6 8 ) , 2 1 1 - 2 1 2 M a t r i c u l a t i o n of foreigners in Mexico, 104, 1 6 7 - 1 6 9 , 1 7 2 - 1 9 4 , 197, 288 Maximilian, Emperor, 90, 99, 1 3 2 , 1 5 5 , 162 Maxon, Felix ( 1 8 6 8 ) , 210 M e a d o w c r o f t v. Winnebago County ( 1 8 1 111. 5 0 4 ) , 3 8 7 - 3 8 8 Mears, John H. ( 1 8 4 8 ) , 54 Mears, John H. ( 1 8 6 8 ) , 1 3 5 M e a s u r e of damages, 299 Merritt, Starr and ( 1 8 6 8 ) , 1 3 2 M e x i c a n Herald, 3 1 0 , 3 1 1 M e x i c a n N a t i o n a l Packing C o m p a n y , 310, 312

436

INDEX

Mexican Petroleum Company, 335, 362 Mexican Shepherds case, 286 Mexican Union Railway, Ltd. (1926), 415-416 Mexican War (1846), 48, 207 Mexico, economic condition of peasant class, 307, 308, 367-369; financial difficulties, 32, 42, 43, 46, 47, 59, 64, 67, 70. 74, 78-82, 84, 117, 137, 199; hostility toward foreigners, 17, 20, 32, 55, 62, 99 (see also Foreigners); justice, local system of, 13, 65, 68, 69, 256, 257; lawlessness and banditry, 274, 289-291, 321, 322, 329; nationalism in, 308, 330, 382-400; political conditions in, 7, 14, 17, 31, 42, 61, 76, 77, 83, 87, 92, 100, 106, 108, H 3 , 306, 315, 320, 321, 323, 329; social revolution, 307, 308, 330 Miller, Raphael M. (1868), 133, 163 Mills, William W. (1868), 281 " Mina Bell, The," 235, 244-245 Minimum standard of justice, 4. See also Denial of justice Mining regulations, 328, 329, 332-335 Minor officials, responsibility for acts of, 278 Miramon, Miguel, 86, 155, 162 Mistreatment of Americans, see American citizens M o b violence, 156, 161, 276, 277, 280, 285, 287, 293-294, 297 Moke, Moses (1868), 131 Monahan, Thomas R., 192 " Montana, The," 229-231 Montgomery, S., and W. Wilkinson (1868), 218 Moore, John Bassett, cited, 27-29, 31, S3, 54, 56, 92, 94, 95, 98, " 4 , 131, 134-136, 150, 163, 264 Morgan, J. L., 255-257, 260 Morgan, Philip H., 189-193, 196, 197, 232, 233, 235, 237-239, 249 Morrow, Dwight, 362, 365 Morton, George W. (1868), 75, 131 Moses, Isaac (1868), 209, 210 Nationalism in Mexico, 308, 330, 382400 Nationality, see Citizenship; Naturalization Nationalization of petroleum, 338-340, 348, 349, 357. 366

Natural resources of Mexico, exploitation of, 8, 100, 101, 306, 307, 327. See also Oil Naturalization, 171, 174, 176, 179-181, 188, 189 Nelson, Thomas, 102-105, 153, 179, 180, 182, 183, 185 Nesdel, Philip, 303 N e w Orleans, riots in, 156, 161 Nielsen, Fred K., 406, 417, 418, 421 North American Dredging Company (1923), 400, 406-417 " Northampton, The," 22 Oberlander and Messenger, 269-273 Obregon, Alvaro, 345, 346, 349, 350, 35i, 353, 355, 357, Octavio, Rodrigo, 419, 421 Officials, see Minor officials Oil, controversy regarding, 327, 330, 332-366, 390, 398, 422, 423; taxation of American companies, 310, 311 Olney, Richard, 271, 272 " Ophir, The," 22 Ord, General, 114, 115 Orozco, Pascual, 421 Palacio, Francisco G., 132, 133, 174, 202, 207, 209, 212, 218, 228, 279, 282 Paiacios, Julian (1868), 135 Pani, Alberto J., 375, 376 " Paragon, The," 22 Paredes, Mariano, 47, 48 Parker, Edwin B., 409 Parsons, S. Kearney (1868), 283, 284 Payment of claims awards, 33, 43, 44 Peasant class, economic condition, 307, 308, 367-369 Percival, Sir John, 416 Perry, Ernest B., 419, 421 Pershing expedition, 322-324, 330, 420 Petroleum, see Oil Pierce, Franklin, 70, 79 Plumb, Edward Lee, 91, 99 Poinsett, Joel, 10, 12-15, 17, 199 Police protection, 166, 274-305 Polk, James K., 44, 45, 47, 48 Porter, James D.. 242, 245 " Positive Acts " doctrine, 347-350, 352354, 357-360, 365, 398 Pratt, S. W. (1868), 173 Pratz, Salvador (1868), 132, 148, 162, 282

INDEX Priestley, Herbert I., cited, 306 P r i v a t e individuals, acts of, 286 P r o p e r t y , private, compensation for expropriation, 374, 376-381 ; protection o f , 326, 327, 330, 331, 336, 371, 382; restrictions on ownership, see R e strictions; security of, 4, 7, 306; t h e o r y of social use of, 371, 372, 374. See also Agrarian reform ; Oil P r o p e r t y rights, vested, 337, 338, 340, 344, 345, 347, 361, 366, 376, 38s, 387 Protection, see Diplomatic protection; Police protection ; Property ; R i g h t to p r o t e c t ; Right of individual Querétaro

Convention,

330, 336, 348,

393 Queseda, D o n Vicente G., 272, 273 R e a l property, restrictions on ownership of, see Restrictions Rebecca, The (1923), 235, 241-244, 250, 252, 253, 255-258, 260-267 Recognition, of Carranza, 320, 321, 3 3 7 ; of Diaz, 110, 1 1 2 - 1 1 6 , 142-144, 166, 1 9 9 ; of Huerta, 314, 315, 3 1 7 ; of Juarez, 85, 86; of Obregôn, 345, 346, 349-351, 355, 3 6 1 ; of Zuloaga, 133 Recognition of belligerency, 133, 157, 158, 162 R e f o r m L a w of July 13, 1859, 104, 105 Renunciation of diplomatic protection, 356, 360, 364, 365, 383, 384, 391-400. See also C a l v o clause Res adjudicata, 212, 245, 271 Research in International L a w of the H a r v a r d L a w School, 414 Restrictions on ownership of real property by foreigners in M e x i c o , 167, 170-172, 173-179, 194-198, 330, 382400 Retail trade, foreigners prohibited f r o m engaging in, 39 Retroactive laws, 337, 346-348, 350, 351, 353, 361, 362, 384-386 Revolutionary damages, 1 5 2 - 1 6 5 , 166, 320, 418-421. See also Claims, revolutionary Ricardi, Nicolas (1848), 277 Rice, Francis W. (186S), 75, 201 Rights of foreigners, 167, 181, 182, 184, 187, 193

437

Right of individual to call for protection, 167, 171, 190, 391, 396-400 Right to protect, 4, 24, 154, 167, 186, 187, 189, 190-193, 396-400 R i p p y , J. Fred, cited, 48, 55, 58, 61, 66, 70, 72, 80, 82, 85, 90, 106, 113, 114, 143, 166 R o a , F. González, 419 Robinson, John A. (1848), 124 Robinson, Juan A. (1868), 282-283 R o c k Springs, attack on Chinese at, 273, 293-294 Rockwell, J. A., cited, 333 Rogers, confinement of, 75 Romero, Matías, 260 Rosario and Carmen Mining (1868), 280 Rose, Francis (1868), 135 Rosecrans, W . S., 99-102 Russell, Naomi (1923), 421 R y a n , Thomas, 268, 298 Ryder's case (1868), 135

Company

Saenz, Aaron, 361, 384, 386, 387, 389, 390, 395-399 Santa Anna, Antonio Lopez de, 42, 43, 57, 62, 70, 77, 78, 170, 275 Santa Ysabel massacre, 321, 419-421 Savage, William, 303 Schaben, Mark (1868), 173 Schleining, Theodore (1868), 173 Schneider, N. R. (1868), 213 Security of life and property, 4, 7, 306 Selkirk, James (1868), 220-221 Senate of the United States, 14, 2526 Seward, William H., 91, 99, 129, 155, 160 Shannon, Wilson, 43, 44 Shattuck, David 0., and Dickson P. (1868), 223 Sheffield, James R., 358-360, 395 Shirley, confinement of, 75 Silliman, John R., 338 Silva, Juan M. (1868), 173 Sindballe, Kristian, 404 Slidell, John, 45-48 Slocum, Caroline B. (1868), 226 Sloo and Associates, 64, 73 Smith, Charles B. (1868), 219 Snow and Burgess (1868), 218 Social and economic relations, effect on diplomatic protection, 7

43»

INDEX

Social revolution in Mexico, 307, 308, 330 Social use of p r i v a t e p r o p e r t y , t h e o r y of, 371, 372, 374 Soldiers, acts of, 279, 283, 284 Sovereignty, 24, 39, 58, 183, 255, 322, 342, 349, 37S. 386, 395. See also Jurisdiction, etc. Special Claims C o m m i s s i o n of 1926, 415-416 Special Claims C o n v e n t i o n of S e p t e m b e r 10, 1923, 4 1 8 - 4 2 1 Speyers, Albert (1868), 66 Standish, Mildred (1868), 283, 284 Stanficld, J . S., 303 Starr and Merrill (1868), 132 Stevens, Ernestine, 248-250 S t r a t t o n , N . L., 224-225 Strickland, Amos O. (1868), 216 Suarez, Pino, 313 T a f t , William H o w a r d , 312, 3 1 3 , 3 1 5 T a n n e n b a u m , F r a n k , cited, 306, 367 Tariff laws of Mexico, 11-15 T a x a t i o n , 82-83, 1 1 7 - 1 5 1 . See also F o r c e d loans T e h u a n t c p e c , see I s t h m u s of T e h u a n tepec Tehuantepec Ship Canal and Mexican Railroad Company, The (1868), 222 T e r r i t o r i a l a m b i t i o n s of t h e U n i t e d States, 43, 49, 55, 61, 91, 103, 109, n o , 424 T e r r i t o r y , efforts t o w a r d acquisition of, 7- M , 17, 25, 32, 33, 4&. 47, 55, 7°, 72, 73, 74, 77-82, 85, 86, 126, 127, 170 Texas, 17, 19, 25, 27, 3 1 , 33, 36, 38, 4 2 46, 48, 49, 53, 62, 75, 109, 1 1 3 , 114, 170, 195 T e x a s C o m p a n y case, 345, 347-349, 3 5 1 354, 359 T h o m p s o n , Alfred B., 123 T h o m p s o n , W a d d y , 32-40, 123 Thompson, William L. (1868), 224 T h o r n t o n , Sir E d w a r d , 96, 97, 1 3 2 - 1 3 7 , 163, 164, 1 7 2 - 1 7 4 , 177, 178, 204-206, 210, 2 1 1 , 213, 215, 218-226, 2 7 9 284 T l a h u a l i l o C o m p a n y , T h e , 310, 3 1 1 " T o p a z , T h e , " 22 T r a d e , American, w i t h Mexico, 7, 1 1 , 1 4 - 1 6 , 306, 3 1 6 ; retail, 39

Treaties between the United States and Mexico: April 5, 1831, 14-16, 19, 23, 24, 26, 28, 30, 39, 50, 51, 82, 1 1 7 119, 125, 129, 1 3 1 , 133, 138, 141, 148, 153, 159, 162, 164, 184, 195, 202, 208, 209, 230; F e b r u a r y 2, 1848 ( T r e a t y of G u a d a l u p e H i d a l g o ) , 49, 51, 55, 57, 60, 63, 66, 70, 73, 92, 207; December 30, 1853 ( G a d s d e n T r e a t y ) , 73, 74, 96, 238. See also Claims conventions T r e a t y of 1826 between G r e a t Britain a n d Mexico, 118, 125, 129, 1 3 3 Trevino, General, 1 1 5 , 152 Tripler, William C. (1868), 284 Trist, Nicholas P., 49-51, 57 T u m u l t y , J o s e p h P., cited, 319, 324 Tunstall, J o h n H., 291-294 T u r l i n g t o n , E d g a r , cited, 33, 63, 79 Turner, Renshaw and Company (1868), 210 Ulrich, J . , 153, 158, 162, 164 United States, claims, see Claims, A m e r i c a n ; diplomatic relations, see D i p l o m a t i c relations; p r o t e c t i o n of citizens, 87, 157, 190, 231, 3 2 3 ; Senate, 14, 2 5 - 2 6 ; territorial a m b i t i o n s , 43, 49, 55, 61, 9 i , 103, 109, n o , 424 U p s h u r , Abel P., 36-37, 40-42, 123 Vallarta, Ignacio L., n o , H I , 1 1 5 , 139-142, 195, 200 Van Buren, M a r t i n , 15, T6 Van Vollenhoven, C., 403 Vattel, 97, 252 Vega, Manuel J. de la (1868), 135 Vera Cruz, o c c u p a t i o n of, 319, 320 Vested p r o p e r t y rights, 337, 338, 344, 345, 347, 361, 366, 376, 385, Villa, Francisco, 3 1 8 - 3 2 2 , 328, 370,

116,

340, 387 420,

421 W a d s w o r t h , William H e n r y , 97, 1 3 1 137, 148, 155, 162, 163, 1 7 3 - 1 7 6 , 178, 183, 201, 206, 209-211, 216, 217, 281 Walker, H o w a r d C., 191 Walsh, Joseph (1868), 163 Walsh, R o b e r t W . , 59, 60 W a r of 1846, 48, 207 W a r d , C h r i s t o p h e r A., 72 " Watchful waiting," 318 Way, William T. ( 1 9 2 3 ) , 304, 305

INDEX Webster, Daniel, 29, 61-64, 67 Webster, Fletcher, 32-33 Week, John E., 303, 304 Weil, Benjamin (1868), 98, 298 Welsh, Robert (1868), 135 Wheaton, Henry, 252 Wilkinson, W., 218 Willis, StiUman D. (1868), 173, 205 Wilson, Henry L . 308-310, 3 1 2 - 3 1 4 , 317 Wilson, Woodrow, 312, 316-322, 324327, 338, 346 Wright, Edward (1868), 222 Wulfing, Robert (1868), 1 3 1 , 213

439

Wunderle v. Wunderle (144 III. 40), 387-388 Wyman, Benjamin H. (1868), 163 Youmans, Thomas H. (1923), 286-289 Zamacona, Manuel Maria de, 97, 1 3 2 134, 142, 206, 2 1 1 , 281 Zapata, Emiliano, 320, 370 Zuber, William L., and Edmund Hodapp (1868), 22s Zuloaga, Felix, 82, 83, 86, 124, 129, 132, 133. 162

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