No. 333.
Mr. Foster
to Mr. Evarts.
Legation of
the United States,
Mexico, December 4, 1878.
(Received December 17.)
No. 845.]
Sir: On the 18th ultimo I received a letter from
one Emil Boig, who claims to be an American citizen, stating that he had
been seized at Queretaro by force, and placed in the Mexican army, and that
he had been brought to this city with the regiment to which he was attached,
where he was still held in military service contrary to his will. His papers
of citizenship, he stated, had been taken from him when impressed; but as
respectable American citizens interposed with me in his behalf, and his
story bore internal evidence of genuineness, I thought it justified me in
asking the Mexican Government to cause inquiry to be made. I was confirmed
in this decision by the notices which were frequently appearing in the
newspapers to the effect that the impressment for the army was being carried
on in the interior of the republic; two of which notices I inclose.
I accordingly addressed the foreign office, giving Boig’s statement and a
copy of his letter, and asked that inquiry be made as to its truth,
expressing
[Page 742]
confidence that, if
found correct, the government would order Ms release.
Under date of the 19th ultimo, the acting minister of foreign affairs stated
to me that he had reported the case to the department of war, and that,
although Boig could not be recognized in his character as a citizen of the
United States, because his name did not appear in the register of
matriculation in the foreign office, still, if the facts, as stated,
appeared true, attention would be given to my recommendation.
In view of the position assumed by the minister that this legation could not
claim citizenship for any American who was not registered in the Mexican
foreign office, in acknowledging receipt of his note, I protested against
such an assumption, while I thanked him for the consideration given to my
intervention. I reminded him that I had heretofore notified the foreign
office that the Mexican Government could not by any domestic legislation or
regulations denationalize American citizens who may be traveling or resident
in the country. I called attention to the fact that Boig had recently
arrived, and was passing through the country, when he was impressed into the
army, and that if the minister’s position was to be maintained, all
Americans who come to Mexico on business or pleasure are subject to be
seized and thrown into the army, notwithstanding their express exemption
therefrom by treaty stipulation.
The minister replied on the 27th ultimo that the department of war had given
orders for Boig’s discharge from the military service. He then proceeds to
deny that Mexican legislation deprives foreigners of their respective
nationalities, but only requires them to make themselves known to the
foreign office, in order that the authorities may recognize them as such. He
also states that if an American does not thus make himself known, he will
not on that account be deprived of any of his natural and civil rights,
since the law provides that all foreigners not matriculated may avail
themselves of their rights before the courts and elsewhere, enjoying the
same rights as the other inhabitants of the republic, and in such case as
the present an appeal could be made to the courts for protection.
Replying on the 30th ultimo, I expressed to the minister my gratincation at
Boig’s release, but could not avoid reference to the untenable position
assumed by him in his second note, to the effect that Americans not
matriculated were not deprived of their rights on that account, as, though
they could not allege their nationality, they could appeal to the courts for
protection the same as Mexican citizens. I called his attention to the fact
that Mexican cilizens were on proper occasion subject to compulsory military
service, while the treaty of 1831 expressly exempts American citizens from
such service in Mexico. If an American citizen, as in the case in question,
traveling through the country without opportunity to be matriculated, is
seized and placed in the Mexican army, he cannot appeal to the protection of
the treaty of 1831, but must receive the same treatment by the authorities
and courts as Mexican citizens. The latter are subject to compulsory
military service. Hence, for all purposes of his liberty and national rights
an American citizen so circumstanced is denationalized by Mexican law and
regulations.
As up to date I have received nothing further from the minister on the
subject, the discussion may probably be considered as closed. While the main
object of my intervention, the release of Boig, has been accomplished, it
has afforded the Mexican government an opportunity to assume a position in
regard to American citizenship, which I think you will not be willing to
recognize or acquiesce in.
[Page 743]
In previous correspondence with the Mexican foreign office, I have shown the
unwarrantable results of the Mexican matriculation law and regulations when
pressed, as that office seems disposed to do, to their extreme application.
But the present case illustrates more fully than any that have yet arisen
their glaring inconsistencies. If Mr. Avila is correct in his assumptions,
any American traveler may be seized and placed in the Mexican army
immediately after he has crossed the frontier and before he has had an
opportunity to matriculate, and neither our government nor this legation can
plead, his American citizenship to secure his exemption from military
service under the treaty of 1831.
* * * * * * *
I have always encouraged American citizens permanently located in this
country to observe the law and become matriculated; but, on the other hand,
I have always contended that failure to matriculate did not strip such
citizens of their nationality, and that in all cases where our government or
this legation thought proper to intervene in behalf of American citizens the
Mexican Government was bound to recognize the claim to citizenship thus made
in official form.
* * * * * * *
[Inclosure 1 in No.
845.—Translation.]
[From the
Patria of November 19,
1878.]
Yesterday, at the hour when we were writing our daily, a body of about 80
men, tied one to the other and conducted by several guards, passed
through our street. The public said that they were volunteer
soldiers.
Will the Diario have the kindness to tell us the cause of this
impressment to which those galley slaves were
going, and why they were going?
[From the Monitor Republicano of November 19,
1878.—Translation.]
continuation of conscriptions.
Yesterday a tied body of volunteers entered the capital in open daylight, proceeding,
as we are told, from Guanajuato. We suppose it is the quota contributed by that state for the formation of the army.
We are going to ascertain if these individuals have all presented
themselves voluntarily to serve in the army, which we much doubt, and,
on the contrary, we will give them some advice. In the mean time, we
would wish that the Diario Oficial would tell us if near forty thousand
men under arms are not sufficient for the executive, and whether it is
proposed to increase the army?
[Inclosure 2 in No. 845.]
Mr. Foster to Mr.
Avila.
Legation of the United States,
Mexico, November 18,
1878.
Sir: I inclose to your honor herewith a copy of
a letter from one Emilio Boig, who claims to be an American citizen,
representing that three months ago he was taken by force at Queretaro
and impressed in the army, in which he is now held in this city contrary
to his will.
As he states that the papers establishing his citizenship were taken from
him, I have no other means at hand of verifying his claim to the
protection of this legation than his verbal statements; but his
narrative bears such internal evidence of genuineness as to justify me
in asking that your honor’s government will cause an investigation
[Page 744]
of his case to he made, not
doubting that should it appear that he has been involuntarily placed in
the army, the said government will order his release.
I embrace this opportunity to reassure your honor of my high
consideration.
[Inclosure in Mr. Foster’s
note.]
Mr. Boig to Mr.
Foster.
Mexico, November 18,
1878.
Sir: I would respectfully ask you to release me
from the position I’m in. My name is Emilio Boig; was born in Russia;
emigrated to the United States in 1871; and was naturalized in Virginia
City, Nev. In 1871 taking out my first papers, and five years later my
full papers.
Three months ago I was taken by force in Queretaro and put into the army.
My citizen papers were taken from me at that time, and the following day
I was sent to this city. Fm now a private soldier in the fifth regiment
of infantry, second company, Capt. Manuel N. Oropega, Col. José del
Valle, commanding.
I beg of you to procure my release from the service, as I suffer for the
want of subsistence and only serve from compulsion.
I have, &c.,
[Inclosure 3 in No.
845—Translation.]
Mr. Avila to Mr.
Foster.
Department of Foreign Affairs,
Mexico, November 19,
1878.
Mr. Minister: With your excellency’s note of
yesterday was received, in this department, the copy of the letter
addressed to you by an individual named Emilio Boig, in which he states
that he has been enlisted into the military service in Queretaro against
his will.
In reply, I have the honor to say to your excellency that information was
at once asked of the department of war respecting the facts stated by
Boig, and which, if they prove true, although this department cannot
recognize that individual in the character of a citizen of the United
States, inasmuch as he is not recorded in the register of matriculation,
it will cause the recommendation made by your excellency in the note to
which I reply to be attended to.
It is pleasant for me to improve this occasion to renew to your
excellency my protestations of attentive and distinguished
consideration;
[Inclosure 4 in No. 845.]
Mr. Foster to Mr.
Avila.
Legation of the United States,
Mexico, November 23,
1878.
Sir: I am to-day in receipt of your honor’s
note of the 19th instant, in which acknowledging receipt of my note of
the 18th instant, relating to the forcible impressment into the Mexican
army of Emilio Boig, who claims to be a citizen of the United States,
you state that information was at once asked from the war department.
Your honor further states that your department cannot recognize in said
Boig the character of an American citizen, for the reason that his name
does not appear in its register of matriculation; but notwithstanding
this fact, you will give attention to the recommendation contained in my
note.
I have to thank your honor for the prompt attention given to my note in
asking information of the war department, and for the personal
consideration extended to me; and I hope that if, upon investigation,
the facts prove as stated in the letter accompanying my note, the said
Boig may be released from impressed service without delay.
It is my duty, however, without loss of time, to enter my protest against
the position assumed by your honor, that said Boig is not entitled to be
recognized as a citizen of the United States because he is not inscribed
in the register of matriculation of the foreign office. I have
heretofore notified the department of foreign affairs, and now desire to
repeat, in an earnest manner, that the Mexican Government cannot by any
domestic legislation or regulations denationalize American citizens who
may be traveling
[Page 745]
or resident
in the country, and who have committed no act to forfeit said
citizenship. In the present case, Boig states that he had recently
arrived and was passing through the country when he was seized and
impressed into the army. If your honor’s position is to he maintained,
all American citizens who come to Mexico on business or pleasure are
subject to be seized and thrown into the federal army, notwithstanding
their express exemption therefrom by treaty stipulations; and neither
they nor their government nor its diplomatic representative can plead
their American citizenship if they do not happen to be registered in the
Mexican foreign office.
The only claim which Boig has to the interposition of this legation is
his citizenship; and my action in asking his release from the army was
based solely upon that claim; and however highly I esteem the personal
consideration which may be extended to me by your honor’s government,
that ought not to influence its action if Boig is not held to be a
citizen of the United States, for upon that ground alone I have the
right to, and do I, ask his discharge from the army.
I improve this occasion to reassure your honor of my marked
consideration.
[Inclosure 5 in No.
845.—Translation.]
Mr. Avila to Mr.
Foster.
Department of Foreign Affairs,
Mexico, November 27,
1878.
Mr. Minister: I have the honor to say to your
excellency, referring to your note of the 23d instant, that the
department of war informs me, under date of yesterday, that it has given
orders to the effect that Emilio Boig should be discharged from the
military service,
It would be satisfactory for the government if this resolution should
entirely satisfy your excellency’s desires; but I note that this
department, being unable to recognize the individual’ referred to in the
character of a foreigner, inasmuch as he is not inscribed in the
register of matriculation, your excellency has thought it your duty to
protest against the claim which you attribute to the Mexican Government
to denaturalize, by means of laws or regulations of the country,
citizens of the United States traveling or resident in it; your
excellency going so far as to express, in this connection, the fear that
such citizens may be arrested and obliged to serve in the federal army
if they do not possess the certificate of matriculation, without such
citizenship being able to be alleged by them nor by their government, or
its diplomatic representative; and notwithstanding the express
stipulation of the treaty which exempts them; from that service.
I should, on my part, state to your excellency that the legislation of
Mexico does not deprive foreigners of their respective nationalities,
but that it only and exclusively requires of them that they make
themselves known to this department, presenting the proofs which
accredit them, in order that the government and all the authorities of
the country may recognize such foreigners, and that the latter may
benefit by their rights as such.
The said legislation adds no requisite to those established in each
country for the acquisition of nationality.
Thus, then a person who may be a citizen of the United States in
accordance with the laws of the same will be recognized as such in
Mexico by his simply proving that, in conformity with those laws, he is
a citizen of the United States.
On the other hand, if he does not make himself known in this character,
he will not for this reason be deprived of the exercise of all of his
natural and civil rights, since article 1st of the law of December 6,
1866, has very explicitly declared that foreigners who may come to the
republic or reside in it, although they may not have inscribed
themselves in the register of matriculation for foreigners, nor have the
proper certificate, may avail themselves of their rights before the
courts or elsewhere, execute writings and other public instruments, and
appear before any authority or office, enjoying the same rights as the
other inhabitants of the republic, in conformity with the laws of the
same.
In order to put in force the special rights of a foreigner, the
interested parties have simply to obtain certificates of matriculation;
and in the case which your excellency supposes, and which is very rare,
in which a citizen of the United States may be obliged to serve in the
army, it would not be necessary for such person to appeal to his right
as a foreigner, as it would be sufficient for him to resort to the
competent authority and solicit protection for the violation of
individual guarantees, which appeal is always successful in cases of
this nature.
If, then, in the case of Boig, attention was paid to the complaint
through this department, it has been solely from the consideration which
the government takes pleasure
[Page 746]
in showing to the recommendation of your excellency, and not because the
interested party was recognized as a foreigner, as this is prohibited by
article 7 of the law of May 16, 1861, to which, as a public functionary,
I should subject myself, having also the conviction that it does not in
any manner whatever impair the rights which may pertain to citizens of
the United States.
The president being desirous that the latter as well as the other
foreigners resident in Mexico, may not suffer any injury from ignorance
or oversight of the laws relative to matriculation, has ordered them to
be published anew.
It is pleasant for me to reiterate to your excellency the protestations
of my high consideration.
[Inclosure 6 in No. 845.]
Mr. Foster to Mr.
Avila.
Legation of the United States,
Mexico, November 30,
1878.
Sir: I have been gratified to be informed by
your honor’s note of the 27th instant that the department of war had
given orders for the discharge of Emilio Boig from the military service
into which he had been impressed. Since that date the individual has
reported to me in person that said order has been carried into
effect.
I have no disposition to continue the discussion of the question raised
by your honor in regard to matriculation, further than to notice one
point made in the note of the 27th instant. Your honor states that while
an American citizen in Mexico cannot be recognized in that character
unless he is inscribed in the register of matriculation in the foreign
office, still he is not on that account deprived of his natural and
civil rights, for the maintenance of which he can appeal to the courts
and other authorities, enjoying the same rights in this respect as
Mexican citizens.
But your honor seems to forget that Mexican citizens are, on proper
occasion, subject to compulsory military service by their own
government, while the treaty of 1831 expressly exempts American citizens
from such service in Mexico. If, as in the present case, an American
recently arrived, traveling from the frontier towards the capital, and
before he has any fixed residence of even a temporary character, and
hence no opportunity to become matriculated, is seized and placed in the
Mexican army by force, he cannot obtain the protection of the treaty of
1831, but is to receive the same treatment from the courts and
authorities as Mexican citizens. Mexican citizens are subjected to
forced military service. Hence, for all the purposes of his liberty and
national rights, an American citizen, circumstanced as above, is
denationalized by the operation of the laws and regulations of the
Mexican Government relating to matriculation. It was against such an
unwarrantable claim that I was forced to enter my protest.
Renewing my expression of gratification at Boig’s release, I remain, with
the highest respect, your honor’s obedient servant,
