Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session of the Thirty-ninth Congress
Mr. Romero to Mr. Seward
Mr. Secretary: I have the honor to transmit to you, for the information of the government of the United States, the documents in the annexed index, some of which, taken from the official paper of the Mexican government, show the adhesion of several States of the republic to the decree of the 8th of November, 1865, declaring the continuance of the presidential term till a new election can take place. I think proper to call jour attention, in a special manner, to letters addressed to me on that subject by Mr. Bias Bruzual and Mr. Domingo F. Sarmiento. One is, as you are aware, envoy extraordinary and minister plenipotentiary of Venezuela to this country, and the other is a minister of the same rank from the Argentine Republic, and accredited to this government.
Their letters you will find among the annexed documents.
These distinguished South American statesmen, of acknowledged enlightenment, who cannot be suspected of mean interests—for they have nothing to hope or fear from Mexico, or any other desire than the success of the American cause at large—agree upon the convenience and necessity of extending the presidential term till a new election can take place.
I embrace this occasion to renew to you, Mr. Secretary, the assurance of my most distinguished consideration.
Hon. William H. Seward, &c., & c., & c.
Index of documents sent by the Mexican legation in Washington to the Department of State of the United States, with the note of this date, in relation to the decrees of the 8th of November, 1865.
| No. | Date. | Contents. |
| 1866. | ||
| 1 | March 17 | The governor of the State of Tabasco sends the minister of relations the act of adhesion of the city of San Juan Bautista to the decrees of the 8th of November, 1865. |
| 2 | March 4 | Act to which the foregoing note refers. |
| 3 | July 9 | Reply of the department of relations to the governor of Tabasco. |
| 4 | April 13 | The consul of the republic in San Francisco, California, communicates to the department of relations a note from the governor of the State of Chiapas, reporting the adhesion of that government to the decrees of the 8th |
| 5 | March 8 | The governor of the State of Guerrero to the consul in San Francisco, California, asking him to forward the adhesion of that State to the decrees of the 8th November, 1865, to the general government. |
| 6 | May 31 | Letter from Mr. Bias Bruzual, envoy extraordinary and minister plenipotentiary of Venezuela, accredited to the government of the United States, addressed to Mr. Romero, stating his opinion that the functionaries elected by the people in Mexico ought to continue in the discharge of their duties till a new election can take place. |
| 7 | Nov. 16 | Letter from Mr. Domingo F. Sarmiento, envoy extraordinary and minister plenipotentiary of the Argentine Republic, accredited to the government of the United States, addressed to Mr. Romero, expressing his opinion that the President of Mexico ought to continue the execution of his duties till a new election can take place. |
| 8 | Nov. 21 | Mr. Romero’s answer to the above letter. |
No. 1.
Department of Foreign Relations and Government–The civil government and military commandancy of the state of Tobasco.
I have the honor to transmit to your department the original act expressing the opinion of the people of this capital in regard to the decree issued by the supreme magistrate of the republic on the 8th of last November. Have the kindness to make it known to the worthy magistrate who so successfully and constantly rules the destinies of the republic, and assure him that the sentiments of this government and of the people of Tabasco in general accord with his.
Accept, therefore, the sincere asseverations of my profound respect and esteem.
Independence and liberty!
The Minister of Foreign Relations and Government of the Republic, Paso del Norte.
No. 2.
[Untitled]
An act drawn up in the city of San Juan Bautista, capital of the State of Tabasco, in support of the decree of the 8th of November, 1865, prolonging the presidential term of citizen Benito Juarez.
In the city of San Juan Bautista, of Tabasco, on the fourth day of March, 1866, the people of the capital assembled at the summons of the civil governor and military commander of the State, to say if they accept or not the prolongation of the presidential term decreed at El Paso del Norte, on the 8th of November last, by citizen Benito Juarez, constitutional President of [Page 395] the United States of Mexico; and having proposed, in order to make the act regular, that a president and secretary be named, the citizen governor was elected by acclamation to the first place, and citizen Juan R. de la Rosa to the second.
The decree having been read, and all citizens present having manifested their will to be in favor of the continuation of the presidential functions of the citizen Benito Juarez, the following resolutions were unanimously adopted:
1. The people of the capital of the State of Tabasco support with all their will, and all their force, the decree issued on the 8th of November, 1865, by citizen Benito Juarez, prolonging the presidential term till the circumstances of the nation can enable a new election of some one to succeed him; and the people of Tabasco, in consequence, acknowledge no other legitimate authority than that now exercised by citizen Benito Juarez.
2. The same people of the capital of Tabasco give a vote of supreme confidence in citizen Benito Juarez for the abnegation and constancy with which he has defended the independence and autonomy of the nation.
And so this act concludes, and is signed by the present citizens, with me, the secretary which I certify.
| G. Mendez. | Victoriano Peres. |
| M. M. Moreno. | Juan Morales. |
| Cornelio Castillo. | Juan de la C. Torres. |
| Lawyer Mariano Pedreza. | Ventura Gallardo. |
| Francisco de P. Aguilar. | Ricardo Piña. |
| and 248 other names. |
No. 3.
[Translation.]
DEPARTMENT OF FOREIGN RELATIONS AND GOVERNMENT—GOVERNMENT BRANCH—SECTION FIRST.
With your despatch of the 17th of March last you sent me the act drawn up in the capital of your State, manifesting the approbation given to the decree of the 8th of November last declaring the prolongation of the term of the President of the republic till the circumstances of the war will permit a new constitutional election. As expressed in the decree, it was issued because it was thought to conform to the spirit and provisions of the constitution, and to the will of the Mexican people. The citizen President justly appreciates the will of all the signers of the act, not only because it is spontaneous and the vote of free citizens, but because it is also the opinion of the government, as well as of the worthy sons of Tabasco, who have frequently given strong proofs of their patriotism in this war.
Citizen Gregorio Mendez, Governor of the State of Tabasco, at San Juan Bautista.
No. 4.
[Untitled]
J. Pantaleon Dominguez, the citizen governor of the State of Chiapas, writes me on the 15th of February as follows:
“Informed of the contents of your worthy despatch of the 15th of December last, and of the decrees issued by the supreme government of the republic relative to the prolongation of the functions of the actual President, and to the responsibility assumed by citizen General Jesus G. Ortega, I this day order this circulation and publication in the State under my command, and that they be made known to the citizen governors of Tabasco and Vera Cruz, to whom I also send your despatch and a copy of the letter written to you by the first magistrate of the nation. In communicating this information to you, with due respect, I have the honor to reproduce to you the vows of my singular appreciation and consideration.”
And I have the honor to transcribe it to you, that you may be so good as to place it in the knowledge of the supreme magistrate of the republic.
I protest to you the assurances of my esteem and consideration,
Citizen Sebastian Lerdo de Tejada, Minister of Foreign Relations and Government, at Paso del Norte.
No. 5.
Government of the state of Guerrero.
With your despatch of the 15th of December last I have this day received two decrees issued by the citizen President of the republic, on the 8th of November of the same year; one of which declares the continuance of your functions till the condition of the war may permit a new constitutional election, and the other that there is cause of prosecution against General Jesus G. Ortega for remaining abroad without a permit from the supreme government, with the title of general, having resigned the place as president of the supreme court of justice; and also a circular issued at the same time, explaining the fundamental causes of the issue of said decrees, with the copy of a private letter from the citizen President recommending you to circulate the documents, and declaring his resolution to consecrate himself as ever to the defence of national independence, under all circumstances and in every emergency.
As the reasons that induced the supreme government to issue said decrees are explained in the documents, and as there is no doubt the union congress has authorized him to issue the decrees, I will merely say to you that this government and all the inhabitants of the State agree that you should continue in the presidency of the republic on the said terms, assuring you if it had been otherwise it would have caused great grief in the State, which sees the principles he defends personified, and a certain triumph of the republican cause in the well-deserving citizen who has displayed so much constant energy in the defence of the inalienable rights of the country.
I beg of you to make this known to the supreme government, and present my thanks for the patriotic resolutions, and accept for yourself my distinguished esteem and consideration.
JOSÉ A. Godoy, Consul of the Republic in San Francisco,, California.
No. 6.
[Untitled]
Esteemed Sir and Friend: Before leaving Washington a few days ago, you asked my opinion about what should be done in case the constitutional elections cannot take place in Mexico, on account of the occupation of many of the towns by the enemy that has invaded the republic. I will answer in a few words, for the question seems very plain to me.
The Mexican constitution, like all democratic constitutions, consists of two principal parts: one establishes the authority and manner of executing it, and the other the periodical renovation of national official functions. If the nation is prevented from effecting the latter by vis major it is not excused from obeying the functionaries constitutionally elected to carry on the government; and those functionaries are not excused from their duties because the nation is prevented from complying with the precepts of the constitution for their succession.
For this reason I think the present functionaries of the republic ought to continue in office as long as the nation is disabled from relieving them, according to the dispositions of the fundamental law.
To think adversely would be believing in national dissolution because an elective formula could not take place; it would be believing the constitution could aid the invader by displacing the functionaries called to represent it and defend it against exterior attack.
So far from thinking the present functionaries, chosen by popular election, ought to retire from their posts before the nation could relieve them, I think that natural law obliges them to continue in the discharge of their public duties, the continuation of which is prescribed by the supreme law of self-preservation.
I am of the opinion that the authority of the high functionaries chosen by popular election ought to consider their offices continued till the nation is in a condition to relieve them; and so the President of the United States of Mexico ought to declare by virtue of the power conferred upon him by the last national congress.
Thus I answer your question, and subscribe myself your obedient servant,
Mr. Matias Romero.
No. 7.
[Untitled]
Dear Sir: With the greatest diffidence, by means of this letter, I comply with your request to state in writing my opinion in regard to General Ortega’s protest as president of the supreme court of justice against the decrees of Juarez prolonging his presidential term till, a new election can take place, My want of confidence proceeds from the fact that most [Page 397] of our constitutions contain dispositions that have no precedents in those that have acquired an established jurisprudence by sanction of time, and I run a risk of venturing solutions to practical questions that may be deemed foreign because the case in question is so strange.
It is much to be desired, if Mexico recovers her usurped territory, to have her constitution remodelled after those that have been tested in various countries, so that in cases like the present there may be sources and authorities to give antecedents, and principles to satisfy the public conscience.
The present condition of Mexico is a sad one. Just on the point of shaking off the foreign incubus, with two public powers differing in their understanding of an article of the constitution—in danger of falling into the flames of another civil war! Is it not to be feared that honest citizens may imbrace one or the other party without reflection, or as they m ay interpret the constitution according to their personal interests or for the renovation of public powers?
It is not the only country of Spanish America that is disputing about constitutional rights obscured by want of plain rules, that have given rise to civil wars and deplorable revolutions,
For this reason it is very necessary to fix the constitutional dispositions in Mexico, by means of an explanation of its principles; and to this end I wish to contribute the following’ brief considerations:
All constitutions fix a limit to the extent of the dispositions that tend to insure the exercise of individual rights, and it is the preservation of the thing constituted, the state, the nation. No disposition relating to a private interest, or right, can endanger the preservation of the whole; and, therefore, when it is decreed that the sessions of congress shall be public—for the people have the privilege to know the reasons for law—it is provided they may be secret whenever reasons of public convenience require it. It is the same with the first right of man, his personal liberty, which is guaranteed to him by the constitution, whenever it is suspended without sufficient cause according to law; but it is provided that in cases of insurrection or invasion, when public security requires it, the person arrested shall not be informed of the cause of his arrest.
England and the United States acknowledge these limitations, and; others too numerous-to mention, to rights acquired by time at the cost of immense sacrifices. Public safety, now threatened in Mexico, must, therefore, be the test, as long as the present situation continues, to prove the intrinsic value of secondary dispositions. The periodical change of the executive prevents the establishment of a despotism from habit or force; but this precaution? laudable in peace times, in case of insurrection or invasion must be subordinate to the safety of the nation by means of force. As the part of the country that is free is under martial law, and the rest held by the enemy, the provisions for changing authorities are null, as they cannot be executed.
The constitution of Mexico disposes that the president of the judicial power shall execute the duties of the executive, in its default; and in this particular it differs from the other American republics that confer the power upon the head of the legislature.
The spirit of that disposition is easy to understand; it intended to place power in the hands of an official who could have no interest in party questions, so that he could exercise no influence on the free vote of the people.
The existence of a president of the supreme court supposes a fixed residence in the capital, in discharge of his official duties. Would the constitution make a president of the court that had no court to preside over, or no fixed residence in the place where the court ought to meet? Is it a personal right granted to that functionary by the people, like that conferred upon the vice-president? No. The president of the supreme court of justice exercises his functions in a locality designated by the constitution. His name has nothing to do with the office; whereas, in case of the president and vice-president, the name is everything. From this simple and rational principle, we ask: Can there be a president of the supreme court of Mexico residing in New York, New Orleans, or anywhere in the United States? Can the supreme court emigrate and act outside his jurisdiction? Can a simple justice of the peace in Matamoras cross the Rio Grande, order arrests, and impose fines in the territory of the jurisdiction he has abandoned?
It is the duty of the president of the supreme court to be always found at his post, by the notary, who informs him of causes under his jurisdiction. If he is not found, and it is known that he has left the country, the fact must be made known, so as to show the place is vacant, for his functions cannot follow him out of his jurisdiction.
If there be a constitutional point solemnly recognized, it is certainly that the place is vacated when the functionary moves out of his jurisdiction. The right of governing England belongs to a family, and is hereditary by the laws of succession; and yet, when James the Second left the country, going beyond the limits of his kingdom, and not called out by duty, Parliament declared the throne vacant, and did not call his successor to fill it, because he was the heir of a deceased father, and not the heir of an absent person. If, then, a king ceases to be such by absenting himself from his country, can a judge, who has not officiated for years, and is living out of the country, continue to be judge?
I must here call attention to an observation I have previously made, namely, that the person called by the Mexican constitution to exercise in certain cases a kind of regency is the president of the judicial power, and not the legislative head, as in most other republics. [Page 398] That is to say, an employé whose duties are confined to the seat of government cannot be governor of a State, general in the army, a traveller abroad, or an ambassador, without resigning his judgeship, the business of which confines him daily to his duties. Perhaps you ask, but what has this constitutional disposition to do with General Ortega, who appears to have an office abroad? Now come the considerations that show the danger to the safety of the country of offices held out of it. The person is exposed to the influences of a foreign state, which he may use to the injury of his country, as is shown in the present case. General Ortega finds himself restricted in his pretensions by the policy of the United States that favors Juarez. If we admit him to any legitimate right to the presidency, we must confess that the dignity of the republic has been tarnished by his imprisonment. If we take the opposite, and suppose him favored by the United States, we would have a President of Mexico under a foreign jurisdiction, and recognized by a strong neighbor giving him hospitality, and acting in the interests of a country that might not always be the interests of Mexico.
These considerations seem to me to be of great weight in solving the dispositions of the constitution.
It is not now proposed to hold an election, for it is impossible. No tyranny is to be put down; all that is to be done is to continue to resist foreign invasion; and to succeed in this, the person who began it must remain in office, and this course is dictated by common sense. “Don’t swap horses in crossing the stream,” said Mr. Lincoln, in accordance with popular opinion that re-elected him to the presidency, so as not to derange the machinery of war, which is the executive.
Taking advantage of the actual fact, General Ortega’s high military qualities do not improve the present situation; to do that, it must be so expressed by election, or we must suppose that a chief justice is expected to possess military qualities. But the constitution does not make General Ortega regent; it appoints to that office whomsoever is president of the supreme court; and the only person who cannot be and ought not to be called to the presidency of the republic by the spirit of the constitution, while the country is struggling for independence against a foreign power, is the president of the supreme court of justice, who is supposed to be versed in the laws, to be just in his decisions, but not skilled in arms to defend with the sword his threatened country. Most likely Mexico is the only country in the world where a general is chief justice. If events should make it desirable to have military men as judges, the constitution would be violated, and its intention frustrated, for the judge was to be a man having no party prejudices; but here we have one, a general, watching every opportunity to get into the presidency.
President Juarez, now in exercise of the supreme power, carries on the war as President, which is not a theory of right, as it is supposed, but a fixed fact, that it would become necessary to destroy, and turn those arms that should be used against the common enemy against the governor of a State, the result of which would certainly be a deplorable civil war, and, possibly, the elevation of General Ortega to the presidency. The fact that the United States do not support the pretender’s aspirations, and continue to acknowledge the government of President Juarez, is of no importance to the partisans of the liberal interpretation of the constitution, but it is of great consequence to the people of Mexico, and for the success of the terrible war that is ending so gloriously.
First save the thing constituted—that is, the country, the nation, the republic; that is of the greatest importance;
Each day has its task. When the time comes for the election of a President of Mexico free and independent, then the venerable jurist who is fulfilling his daily duties as chief justice in the city of Mexico will be made regent during the interregnum of the country. It would be well for General Ortega to be at the head of victorious legions, at that time, for I cannot think he is buried under the musty law tomes of his law library.
General Ortega, in the United States, is beyond reach of the case provided for in the constitution. Let a general have all the influence possible; let him be the head of a political party; but he is not that president of the supreme court to whom the constitution proposes to trust the executive power during an interregnum.
History has shown the troubles of regencies in war times, and the people of Mexico would be very unforeseeing to put such obstacles in the way of the present executive, embarrassing his action, only to comply with a simple rite of the constitution that could not provide for emergencies of such a serious nature as now exist.
If there be yet a doubt about the power of the executive to continue his functions during a, congressional recess, or during the absence or resignation of the president of the judicial power, it is settled by the permanent nature of the office. Our constitution compels the annual meeting of the legislature. In some of the United States their sessions are biennial, and the English Parliament did not order to be convoked regularly, at least once every five years, but in the reign of James the Second. The executive power has other rules. In monarchies a successor is legally named for every emergency, and a regent is appointed by law. “The king never dies,” (mort le roy—vive le roy,) is the traditional formula to show that executive action never ceases for a moment. Republics provide for possible emergencies by naming a vice-president, or, in default of him, presidents of the senate or persons designated by other constitutions, succeed to the presidency.
[Page 399]In the present case, where there is no death, resignation, or inability of the incumbent, and when no election can take place, no real interest of society requires a change of administration that might weaken the mere military power of the executive. On the other hand, all precepts of the constitution for ordinary cases ought to rest in abeyance, so as not to endanger the safety of the nation, which is of the most importance.
I will conclude by calling your attention to the pernicious effects of those differences from the practices of all other nations. That precept of the constitution that calls the president of the supreme court to succeed the chief executive has not done the good that was expected; for, instead of an impartial judge, we find in the place a general with titles, antecedents, and political designs; and that certainly was not intended by the constitution. My opinion is, the best thing that can be done to provide for future events will be to suppress the interrex, and create a vice-president.
With my wishes for the prosperity of Mexico and your own happiness, I remain, with sentiments of particular esteem, your very obedient servant and friend.
Mr. Matias Romero, Envoy Extraordinary and Minister Plenipotentiary of Mexico, in Washington.
No. 8.
[Untitled]
My Dear Sir: I had the honor to-day to receive your acceptable letter of the 16th instant, in which you express in writing, agreeably to my request, the opinion you gave me verbally in your visit to me on the 12th, in regard to the expediency and legality of the decrees issued by the President of the Mexican republic, on the 8th of November, 1865, prolonging his presidential term till a new election can take place.
As your opinion is that of a distinguished South American statesman of acknowledged information and sound sense, who can have no low interest, or any other reason but the success of the American cause in general, it cannot fail to have a good effect upon persons outside of Mexico not acquainted with the subject, and will remove some doubts concerning the pretended rights of General Ortega to the presidency of the Mexican republic. I say on persons outside of Mexico, because inside of the republic the opinion is unanimously in favor of the expediency and necessity of those decrees and considers the conduct of General Ortega as unpatriotic and seditious. It is a fact that no authorized voice in Mexico has been raised against the decrees, and it is now more than a year since they were issued. No military chieftain has regarded them as unconstitutional; only a few discontented fugitives from the country in time of foreign war, and residing in the United States, support General Ortega’s pretensions.
I send a copy of your letter this day to my government, and also to the State Department of the United States of America.
I remain, sir, your most obsequious friend and obedient servant,
Don Domingo F. Sarmiento, Envoy Extraordinary and Minister Plenipotentiary of the Argentine Republic, New York.