No. 330.
Mr. Foster to Mr. Evarts.

No. 828.]

Sir: In my 809, of the 16th ultimo, I transmitted the correspondence between the Mexican foreign office and this legation in regard to the acts of Areola and his band in Texas.

The acting minister has taken exception to the reference in my note of October 14 (inclosure 4 in No. 809), in which I refer to the ready disposition of the Mexican Government to resort to technical defenses to [Page 731] excuse its failure to punish marauding Mexican citizens on the Rio Grande frontier. I inclose a translation of the minister’s note, in which it will be seen that he “defends the course of his government by the action of Mr. Secretary Fish in a note addressed to the Mexican legation in Washington, dated December 1, 1871.

I have replied to the minister’s note, showing the want of application of the circumstances referred to in Mr. Fish’s note to the present causes of complaint on the Rio Grande. I also add a brief recital of the conduct of the Mexican Government in the three cases where a disposition has been manifested by the local authorities to co-operate with the American troops in support of ray allegation.

Up to the present date no answer has been received from the foreign office to my note.

I am, &c.,

[Inclosure 1 in No. 828.—Translation.]

Mr. Avila to Mr. Foster.

Mr. Minister: Your excellency’s note of the 14th instant has been received in this department, in which you are pleased to make certain rectifications relative to what you had said before concerning an individual called Areola, who, it is asserted, is chief of a band of outlaws in the State of Coahuila. In the said note Your Excellency, after copying certain clauses from a letter addressed to you by General Ord, in order to remove, as you say, the doubt which you think you note concerning its exactness in the communication which I had the honor to address you on the 9th of the same month, in regard to this matter, informing your excellency of the measures which the Government of Mexico can adopt in the case and had already taken, acting within the sphere of its constitutional faculties, Your Excellency charges the said government with appealing to the defense of technicalities, or of strict legality, in order to excuse its failure to punish the acts of vandalism committed by Mexican maurauders on the Rio Grande frontier.

On informing your excellency, in my note of the 9th instant, that there was no evidence in this department of the complaint preferred against Areola, and against the authorities of the frontier for protecting this individual, I had no other object than to state the reason why measures in regard to the matter had not been adopted.

With respect to the charge which your excellency makes against the government of resorting to technical defenses to excuse its impotency, the best reply which I can give to your excellency is to request you to examine the copy inclosed of a note which the Hon. Hamilton Fish addressed to Señor Gomez del Palacio, chargé d’affaires of Mexico at that time, under date of December 1, 1871, relating to the demand for the trial of certain criminals. Your excellency will understand that for the same reason that the Secretary of State of the United States had to admit that American legislation provides that no one can be tried except within the judicial limits where he committed the crime of which he is accused; so also the Government of Mexico has to subject itself to its own legislation, which provides that crimes cannot be tried which are committed in foreign territory, except upon the petition of the injured party, as I had the honor to say to your excellency in my note of the 9th instant.

I improve this occasion, Mr. Minister, to renew to your excellency the assurances of my attentive consideration.


His Excellency John W. Foster,
&c., &c., &c.

[Inclosure in Mr. Avila’s note.]

Mr. Fish to Mr. Palacio.

Sir: This Department duly received your note of the 15th, referring to that part of that of the 3d ultimo in which you requested that certain persons, charged with the [Page 732] commission of murder in Lower California, whose extradition could not he demanded pursuant to the treaty on that subject, might be tried upon the charge according to the laws of this country.

In reply I have to inform you that it is a fundamental principle of the law of the United States that no person can be tried even for the commission of a crime or offense in this country, except in the neighborhood where the act charged may have been perpetrated. This will, of course, apply with peculiar force to crimes committed in a foreign jurisdiction. It is apprehended, therefore, that it would be as fruitless as inexpedient to prosecute the offenders whom you mention. It is undoubtedly desirable that the crime with which they are charged should never be committed with impunity. It seems, however, difficult to reconcile a prosecution against such persons even on the ground of expediency, with the principle of at least equal importance, that it is preferable for a criminal to escape punishment, to having the freedom and innonence of the many imperiled without cause, as they would be, should a different rule prevail.

I avail myself of this occasion to offer to you, sir, a renewed assurance of my high consideration.

[Inclosure 2 in No. 828.]

Mr. Foster to Mr. Avila.

Sir: Your honor’s note of the 17th instant was duly received, in which you acknowledge receipt of that Which I had the honor to address to the foreign office on the 14th instant, relating to the acts of one Areola, a Mexican citizen of the State of Coahuila.

The main object of my said note was to vindicate myself from inexact representations concerning this individual, which were implied, if not directly stated, in your honors note of the 9th instant. Omitting any recognition of the literal correctness of my representations, your honor devotes your reply to a portion of the closing sentence of my note of the 14th instant, in which I refer to the technical defenses resorted to by the Mexican Government to defend its failure to punish marauding Mexican citizens on the Rio Grande frontier. Your honor answers by inclosing a copy of a note written by the late Secretary of State of the United States to the Mexican legation in Washington in 1871, explaining the inability to punish offenses in the United States committed in Mexico.

In the case referred to, the Secretary of State only called the attention of the legation to a well-known fundamental principle of American law. But the state of affairs on the Rio Grande frontier does not present a parallel case. The main complaint of my government for years past has been, and now is, that Mexican territory is made the base of operations for armed bands of raiders to prey upon the people of Texas; that expeditions are there organized and raiding companies continually cross the frontier to murder American citizens and rob them of their property; and that they bring the stolen property over into Mexican territory and openly dispose of it in public market or private sale. These acts, committed on Mexican territory, constitute offenses punishable by the local law of all civilized nations. It is on account of the failure of the Mexican Government to inflict any punishment, so far as I am advised, in a single case in the course of a long series of years of disorder and plundering, that the Government of the United States complains, and why I was led to characterize as technical the defenses which your honor’s government has so often set up to excuse its neglect of duty towards a neighboring nation. The inquiry which I had the honor to propound in my note of the 4th instant on this subject was, “What means, if any, have been or will be taken to prevent such lawless measures?” My note plainly shows that what my government expected was that the Mexican side of the border should cease to be made the base of armed organization and operation by Mexican citizens into American territory and the receptacle of the property stolen in Texas.

So, also, while the cases as presented in the notes of Mr. Fish and of your honor are widely different, the opposite conduct of the two governments has been very marked. While a well-known principle of constitutional law prevented the punishment by American courts of offenses committed in Mexican territory, the authorities of the United States did not reward the criminals by appointing them to official positions where their opportunities for evil would be immensely increased, as I informed the minister of foreign affairs on the 22d of August last, was charged by General Ord as having been done in Arrcola’s case.

And in this connection it is appropriate to refer to the conduct observed by your honor’s government in cases wherever any Mexican official or citizen has manifested a disposition to co-operate with the American authorities to prevent or punish the [Page 733] raids from Mexican territory into Texas. I will cite, by way of illustration, three eases which have occurred during the administration of President Diaz: Early in 1877 certain Mexican citizens offered to act as guides to the American troops in pursuit of Mexican Indians who were escaping from a murderous raid into Texas. As soon as the governor of Coahuila heard of this friendly act he caused the guides to be arrested as traitors to the Mexican nation, and their execution, it is alleged, was only prevented by the prompt action of the American commander whom they aided.

In December last, while an American force was pursuing a Mexican band raiding in Texas, an officer of the Mexican army united his troops with said force and co-operated in the pursuit. As soon as that fact was known in this capitol, the government announced in the Diario Oficial that the trial of the Mexican officer had been ordered, and that the President was determined to make a severe example in his case, should he be found guilty.

I need hardly repeat the facts of the case of the alcalde of Las Vacas, who aided the American authorities in recovering property stolen in Texas and brought into Mexico, which has recently been the subject of correspondence. I will only repeat the words of your honor, in said case, that “such conduct if it is true, merits and will receive * * * the most explicit and severe reprobation from the government.”

With such repression and condemnation by the Mexican Government of the friendly co-operation of its own officials and citizens to prevent raiding on the Rio Grande frontier, it is not surprising that the outlaws are unpunished; and these facts justify my charge as to the failure of said government to punish the marauders.

I subscribe myself, with the highest consideration, your honor’s obedient servant,