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.
[Inclosure 1 in No.
827.—Translation.]
Mr. Avila to Mr.
Foster.
Department of Foreign Affairs,
Mexico, October 9,
1878.
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.
Legation of the United States,
Mexico, October 22,
1878.
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.
