No. 329.
Mr. Foster to Mr. Evarts.

No. 827.]

Sir: In my No. 798, of the 5th ultimo, I sent the note of the acting minister of foreign affairs, denying the right to diplomatic intervention in the case of the forced loans exacted from Mr. Walter Henry in Chihuahua, and my reply thereto.

The minister has seen proper to continue the discussion, by a note of the 9th ultimo, in which he seems to profess an ignorance of the outrages inflicted upon the American citizens resident in Chihuahua during the last revolution; lays down the principle that the remedy, in case of forced loans and military exactions, is an appeal to the Mexican courts; indicates that such claims of American citizens must go into the general liquidation, which means that they are to be considered a part of the interior [Page 728] debt; and again refuses to consider the demand of the legation that the claim of the murdered American citizen Henry be adjusted through diplomatic intervention.

In my reply, inclosed herewith, I have thought it necessary to refer to the general character of the exactions and outrages perpetrated upon American residents of Chihuahua by the authorities of the present government; have shown the folly of seeking redress through the courts, and that the only method is by a diplomatic resort to the federal executive; that the latter has been repeatedly recognized; and that our government cannot consent to allow the claims of its citizens of the character in question to be made a part of the interior debt, which is virtually worthless, a course which amounts to an absolute confiscation of property, without compensation and by wholly illegal means.

I am, &c.,

[Inclosure 1 in No. 827.—Translation.]

Mr. Avila to Mr. Foster.

Mr. Minister: I have received your excellency’s note of the 4th instant, in which, after it had been made known that the vouchers for certain sums of money claimed from the Government of Mexico in favor of Walter Henry were opportunely transmitted to the department of finance for its information, your excellency insists upon considering the action which you take in the name of the said Henry as a matter which should be adjusted by diplomatic intervention, a position which your excellency supports by mentioning, without specifying them, many possible occurrences or consequences of the state of disorder existing on the northern frontier of the republic in the year 1876.

Your 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 act 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 Henry cannot 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. As 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 your excellency, that in virtue of former decisions it is not possible for him to admit the diplomatic intervention of your excellency in the present state of this matter, although, as I had the honor to inform you in my former note, it has been submitted to the department of finance, which, without doubt, will take it into consideration in the character of the collection of a credit against the national treasury.

I have the honor to reiterate to your excellency the assurances of my very distinguished consideration.

[Inclosure 2 in No. 827.]

Mr. Foster to Mr. Avila.

Sir: The pressure of other business has heretofore prevented me from acknowledging receipt of your honor’s note of the 9th instant, relating to the claims of Mr. Walter Henry presented by this legation.

While I have no disposition to enter at length upon a discussion of the principles [Page 729] raised by your honor’s notes on this subject, I deem it necessary to make some observations upon your note of the 9th instant.

Your honor does not properly interpret my note of the 4th instant, when you imply that I insist upon diplomatic intervention, because the vouchers in the claim were transmitted to the department of finance. My said note does not admit of a doubt that it was occasioned by the declaration made by your honor that, a denial of justice not having occurred, there was no motive for diplomatic intervention.

Your honor says I support my position by mentioning, without specifying them, many possible occurrences or consequences of the state of disorder existing on the northern frontier in 1876. Does your honor doubt these occurrences? or was it designed to challenge me to a recital of the long list of illegal and arbitrary exactions and outrages inflicted by the authorities of the present government upon American citizens in the State of Chihuahua during the last revolutions? These matters have been frequently discussed by me with the late minister of foreign affairs. Some of the American sufferers have made the journey of twelve hundred miles to this capital to lay their complaints in person before the Mexican Government, one of whom was the murdered man; in whose behalf I have been pressing the claim now the subject of discussion. These outrages have been widely published in the United States and have called forth the indignation of my countrymen. They have led my government to send urgent and positive instructions to this legation to secure a redress of the wrongs done American citizens. If detailed demands have not as yet been presented in all these cases, it has been for the reason mentioned in my note, 2d instant, when I first brought your honor’s attention to the claim of Mr. Henry. But in verbal conferences I have narrated to the late minister in charge of the foreign office repeated instances of forced loans having been levied on American residents in Chihuahua by revolutionary chiefs, so often repeated at times as to have been exacted from one mercantile house within six months no less than thirteen separate and distinct times. And in default or hesitation in paying promptly these illegal and arbitrary exactions, American citizens have been torn from their houses and families by bands of armed soldiers and held as prisoners until the money was paid. They have been required in lieu of personal military service, to furnish arms, horses, or other materials of war to sustain the revolution. Upon refusal to pay oft-repeated levies, after having in individual instances contributed tens of thousands of dollars, they have been carried off to the mountains by roving bands of revolutionists, $50,000 as ransom being demanded, and in default of payment in one case an American citizen was held a prisoner for thirty days by one of these bands acting under the direct orders of the present governor of Chihuahua, exposed in the mountains to all kinds of hardships of weather and dangers of warfare, and finally compelled to pay $3,500 to secure his release.

I did not think it necessary in presenting Mr. Henry’s claim to make a recital of all these outrages, nor can I believe your honor now desires it, notwithstanding the apparent challenge in your note of the 9th instant; I only deemed it requisite to present to the Mexican Government the unquestioned written evidences of the forced indebtedness contracted by the chiefs, who were duly commissioned by the present chief magistrate of the republic, in support of Mr. Henry’s claim.

But your honor says the President cannot allow the intervention of my government in behalf of one of its citizens, except in case of a denial of justice or the pronunciation by a court of a sentence in violation of law. What can constitute a greater denial of justice than that which exists in this case Military chiefs having the commission of General Porfirio Diaz, and sustaining his cause in the late revolution, having captured the city of Chihuahua, notify Mr. Henry that he is required within a certain number of hours to appear before officers designated and pay specified sums of money. Upon hesitation on his part, a file of soldiers breaks open his residence and carries him off to the military authorities, where he is held a prisoner till the last farthing is paid or secured. This is an illegal and unconstitutional act, and so pronounced by the supreme court of the nation, which says that not even in time of war has the executive or military the power to levy taxes. What opportunity had Henry to appeal to a court to interpose its authority to protect him? The strong arm of the military power had him in custody. But even if this were not the case, there were no courts in existence. The revolutionary authorities had overthrown the tribunals and the judges had fled or concealed themselves. The money once being paid, there was no other method of obtaining its return but to await the establishment of a new government and apply to the executive authority under that government. This Mr. Henry did to the authorities in Chihuahua, and they declined to restore to him the money exacted, but referred him to the general government in this capital. I have already stated that he came to this city nearly a year ago, and presented his claim to the minister of the treasury, securing my unofficial intervention. Nearly twelve months passed by without even a preliminary answer being given to either Mr. Henry or to this legation. Upon the occasion of his brutal murder, and the attempt to plunder his property by Mexcan officials, of which this legation received authentic information, the diplomatic presentation of the claim occurred. There is nothing unusual [Page 730] in this mode of procedure. The Mexican foreign office has repeatedly recognized such intervention in similar cases. I was therefore taken by surprise by the position assumed by your honor, especially in view of the recent event on the Rio Grande frontier.

Your honor says the case has not even been presented before the Mexican tribunals. What precedent is there for such a course? Is not this class of claims recognized as within the jurisdiction of the executive department of the government? And is there not a special Obligation resting upon it to examine and adjust these liabilities?

If Mr. Henry’s heirs are required to institute a legal proceeding to recover the forced loans exacted to sustain the revolution of the present government, against whom is the suit to be brought? Must it be against the military officers who levied the loans? In that case, as General Donato G____, to whom the most of the loans were paid, is dead, shall his heirs or estate, if he has any, be made defendants in a suit? Would you expect a proceeding to be instituted against General Trias, now governor of Chihuahua? 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? Your 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 in these claims? The simple asking of these questions is their own answer. It is well known that the universal proceeding in the collection of these claims is through the executive department of the federal government.

Nor can I agree to the course which, in the closing part of the note, your honor indicates will be given to Mr. Henry’s claim, when you say that it has been submitted to the department of Hacienda, which will doubtless take it into consideration in the character of a credit against the national treasury. If it is meant by this that the claim for money which has been forced from Mr. Henry at the point of the bayonet, by military chiefs, without law or justice, and contrary to the Mexican constitution, is to partake of the character of, and be placed on a level with, the interior debt of the country, I must here protest against such a course, as I have heretofore done informally to the minister of finance in other cases. As that debt has no market value, and there is no early prospect of payment of either principal or interest of the same, my government cannot consent that the property of American citizens, taken in the manner as was that of Mr. Henry, shall be subject to such a virtual confiscation. In this, and in all similar cases, it will 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, often before made to me, that such a course would make the condition of foreigners in Mexico better than that of Mexican citizens, has no force with my government. It 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. My government is not required in such cases to investigate whether the same injuries and wrongs are inflicted upon Mexican citizens. It would 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 the outrages and damages sustained by them at the hands of those who inflicted them, now the constituted authorities of Mexico.

I improve this occasion to renew to your honor the sentiments of my high consideration.