No. 453.
Mr. Fish
to Mr. Mariscal.
Washington, February 19, 1875.
Sir: I duly received and have taken into deliberate consideration your note of the 30th ultimo and the accompanying documents. It presents a claim against this Government for the alleged murder of Mexican shepherds on an estate belonging to Don Toribio Lozano, of Neuvo [Page 974] Leon, Mexico, which estate is situated in Nueces, Texas, and for damages resulting therefrom. Though 1 have been much struck with the moderation, clearness, and fullness of your statement, I have not been able to reach your conclusion as to the accountability of this Government in the case referred to or in others of a similar character. I am not aware that any government is answerable in pecuniary damages for the murder of individuals by other individuals within its jurisdiction.
It is undoubtedly the duty of a government to prosecute such offenders according to law, by all means in its power. If this duty be honestly and diligently fulfilled the obligation of a government in such a case is discharged. Though the crime by which the Mexican shepherds are alleged to have lost their lives may not be without precedent, it seems obviously unreasonable, in view of the peculiar condition of the quarter where it was perpetrated, to expect that it would certainly be punished. This seems especially true when it is taken into consideration that, under the system of law which pervades this country, no person can be arrested upon suspicion of having committed a crime except upon the affidavit of a credible witness. The affidavit referred to must specify the name of the accused party. It is not alleged in your note that the course adverted to was pursued in this case. If it was disregarded voluntarily or through necessity, I cannot discern where the responsibility of this Government begins.
Mexicans in Texas and Americans in Mexico who engage in business near the border must not at present, or perhaps for some time to come, expect either government to injure them against all the risks inseparable from such enterprises. If the obligations of both governments under treaties and the public law are conscientiously fulfilled, nothing more, it is believed, can justly be looked for.
Accept, &c.,