No. 335.
Mr. Foster to Mr. Evarts.

No. 850.]

Sir: Referring to my No. 827, of the 2d ultimo, regarding the forced loans levied upon the American citizen, Walter Henry, murdered in the State of Ooahuila, I now have to inclose further correspondence with the Mexican foreign office on the subject.

After considerable delay, Mr. Avila responded to my note of October 22 last, in a lengthy review of the right of diplomatic intervention in behalf of such claims, denying the same, and maintaining the right of the Mexican authorities to levy forced loans upon American citizens, and that their enforcement does not afford the basis of a claim for damages against the Mexican Government. You will notice that the broadest and most extreme position is assumed on this question. The acting minister also thinks the spirit of my note of October 22 was not very conciliatory.

I regard the question of forced loans as of equal importance with any other affecting American interests in Mexico, although not so manifest in its evil results as the frontier raids.

* * * * * * *

I answered the point of the right of diplomatic intervention by quoting from your dispatch No. 525, approving my action therein. I declined to continue a discussion of the general question of forced loans, which must be fruitless, unless he could give me an assurance that his government was prepared to take up the subject with a view to reaching an international agreement thereon. I concluded by saying that if the language of my note appeared harsh the fault must rest with the subordinate Mexican officials, at whose hands American citizens had suffered so many exactions and outrages, but that it was not susceptible of an offensive construction.

* * * * * * *

I am, &c.,

[Inclosure 1 in No. 850.—Translation.]

Mr. Avila to Mr. Foster.

Mr. Minister: I informed the President of your excellency’s note of the 22d of last October relating to the character of the claim made in favor of Mr. Walter Henry; but, although I did so as soon as that note reached my hands and its reply was opportunely decided upon, it seemed prudent to delay the latter, in order that it might not be written while under the impression which the unconciliatory spirit of your note could not do less than cause.

The point whose discussion has given rise to the present case is, as I understand it, whether the nature of a diplomatic claim can be attributed to the one presented for the purpose of collecting the amount of forced loans imposed upon citizens of the United States.

Your excellency was pleased to say to this department in your note of October 2 last that, inasmuch as there was no general arrangement or basis of recognition of the claims of American citizens which originated in the last revolution, of which the present President of the republic was the chief, your excellency had abstained, as a general rule, from presenting the claims of this class which have accumulated in the egation, and from urging their adjustment; but that in consequence of the lamentable [Page 751] event which occurred near Piedras Negras (the murder of Mr. Walter Henry, whose circumstances are unknown), and the Government of the United States being desirous that the affairs of the deceased should be completely arranged through diplomatic intervention, your excellency would require the Mexican Government to pay, for the benefit of the estate and heirs of Henry, the sums which he paid for forced loans, with interest.

The case being presented thus, and attention being given by this department to the object of your excellency’s intervention in the matter, which was to promote all that related to the interests of a deceased American citizen, it did not hesitate for a moment to admit such intervention in the character of the interposition of good offices, and for this reason transmitted your excellency’s note at once to the department of finance to be taken into consideration as a matter pertaining to it; but for the same reason which your excellency gives in the before-mentioned part of your said note, to wit, that in view of the fact that the government had not diplomatically recognized the claims of the American citizens which originated, in the last revolution, maintaining, on the contrary, that, in general, the forced loans imposed upon citizens of the United States resident in the republic are not cause for diplomatic intervention, the government did not think it its duty to admit with this character that presented by your excellency in the case of Mr. Henry.

On referring in my note of the 9th of last month, to the mention made by your excellency of certain acts attributed to military chiefs in the last revolution, limiting myself to admitting their possibility, it was not my purpose to raise a doubt that they may have taken place in certain cases, but simply to indicate that in the present case there were no data to justify the concession that it was attended by circumstances of the grave character insinuated.

The first of the documents inclosed in copy with your excellency’s note of October 2, shows that Mr. Henry furnished a certain amount in various quantities to the revolution; the second, that in conformity with a decree of the headquarters of the army of the west, there was imposed upon Mr. Henry a loan of $2,500 with which he was assessed, and that he delivered that sum in the three payments fixed by the said decree, furnishing a large part of it in copper; and the third, that in virtue of another decree Mr. Henry paid as a war contribution, $300 upon the capital of $30,000 which he possessed according to his statement, for the payment of direct taxes.

It might have happened that for the exaction of some of the loans whose sum is given by those documents, means were employed which were not justified by the circumstances; but I repeat that there being no proof of this in this department, it should not consider them otherwise than as possible.

Your excellency nevertheless found it opportune, in your last note upon this subject, to reproach the government for the loans imposed upon American citizens during the last revolution, mentioning several cases in which American citizens, whose names are not given in the said note, were objects of violence for resisting or delaying to pay such loans.

It might be said to your excellency with respect to the case whose details are more particularly given, that of the American citizen retained as a prisoner for thirty days by a band of revolutionists under the command of a chief who is now governor of Chihuahua, that perhaps special circumstances concurred, such as that of the said American citizen having taken part in the political struggle; but I consider it more proper to give to the said reproaches a reply of a general character.

As your excellency alludes in your note to the frequent discussions which you have sustained with the late secretaries of foreign affairs, concerning the subject of forced loans, it appears to me proper to state here the meaning of the expressions made on the part of the Government of Mexico.

Deploring as it does that the political circumstances of the country may have made necessary on certain occasions the imposition of forced loans and extraordinary war taxes, it has not been able nor can it now consent that citizens of the United States shall be considered exempt from being subject to the exactions paid by the other inhabitants of the republic, citizens or foreigners.

With respect to the legality with which such taxes and loans may have been decreed by the executive power invested with extraordinary faculties, and by its authorized agents, and although a decision of the supreme court has in a particular case failed to recognize it, it has always been accepted by the nation and its representatives, and in conformity with the fundamental law, that sentence of the court has neither the character nor the effects of a general declaration in the instance of an amparo granted to a private individual.

But if in principle the government sustains the non-exemption of American citizens from the payment of extraordinary taxes, and forced loans, it does not for this reason approve nor has it ever authorized personal violence in order to carry into effect such exactions.

Whoever may have employed such violence in special cases will have incurred personal responsibility which it pertains to the injured parties to demand of them [Page 752] before the competent authorities, and only when the complaint may be unheeded by the latter, constituting a case of notorious denial of justice, will there be occasion for diplomatic intervention as in a matter between two governments.

This order of proceeding is unavoidable in that which relates to abuses of any kind committed in the exaction of war taxes and forced loans by authorities or military chiefs, however high may be their rank.

With regard to the recognition of what has been received from forced loans imposed by the executive or by its duly authorized agents, or referring to the last revolution by its chiefs or by the chiefs of forces with the necessary authorization who sustained it, the government is of the opinion that such recognition should be made and has initiated a law for the adjustment of the debt thus contracted, but without proposing, nor being disposed to establish on its part, any preference whatever in the payment of foreign citizens or subjects over natives.

Your excellency opposes to these theories sustained by the government, the theory that citizens of the United States who have suffered outrages at the hands of certain chiefs are not obliged to require personal responsibility of them before the competent authorities, but that they have the right to hold the government of the country directly responsible; and that the latter, whatever may be the mode of recognition and adjustment which it may establish with respect to loans imposed on citizens, should recognize and pay at once the amount of those made upon citizens of the United States.

For the first theory your excellency gives as a reason that in a certain case the party responsible for the alleged outrages had died, and in the other that the person who ordered them occupied a position so elevated that justice could not be expected against him.

It is true that a criminal action could not be instituted against the presumed author of a crime, committed in the exercise of public functions, who has ceased to exist; but the same happens in treating of any crime, and the government of a country cannot be made responsible for all the crimes whose authors die before being tried and sentenced.

With respect to the position that owing to the elevated rank of a person, the punishment of the abuses committed by him may not be expected, the request for his trial should not for this reason be omitted, reserving the right to appeal to those means customary in cases of denial of justice.

In order to establish that the government should pay citizens of the United States the amounts furnished by them in the nature of forced loans, independently of that which may be done in this respect towards citizens, your excellency says that the argument “which has been made to you upon various occasions to the effect that the condition of foreigners in Mexico would be made better than that of citizens of the country, has no force with the government of your excellency, for which it is sufficient to know that certain American citizens have been treated with cruelty, and that forced loans have been arbitrarily and illegally imposed upon them, without its being necessary to investigate whether Mexican citizens have been proceeded with in the same manner.

I cannot refrain from calling your excellency’s attention to this phase of your note to which I am replying, since, far from finding foundation for it in the stipulations of the treaty of friendship between Mexico and the United States, it seems contrary to its spirit, and even to its very liberal text, as on agreeing that special protection should be conceded to the citizens of each of the contracting parties, it is explained in what this latter should consist, it being stipulated that the tribunals of justice of each country shall be open to the citizens of the other in the same manner as is usual and customary with natives and citizens of the same without conceding for non-judicial matters other protection still more especial.

I think I can cite in this respect an authority which, if not to be considered as irrefutable by the Government of the United States, should have at least much weight with it. I refer to the opinion of the American commissioner, Hon. William H. Wadsworth, in the case of Salvador Pratz against the United States (No. 748) decided by the mixed commission at Washington in the spirit of the foregoing.

“In the argument of the claimant,” says Mr. Wadsworth, “the agreement for special protection is considered as a guarantee of security in all cases and circumstances.

“This is not, nevertheless, the point of view in which we see it.

“The most liberal interpretation of the words special protection van never convey the idea that they are taken in the sense of an assurance. The article of the treaty in which said words are found, and which defines the character of this protection, on being examined in its totality, will demonstrate that the governments in drawing it up, proposed only to place foreigners traveling or resident in their respective territories upon a footing of complete equality with their own citizens respecting this point.

“We have here the meaning of this special protection. It is true, that in the article nothing was stipulated except what each government justly is in duty bound to procure [Page 753] for its own citizens within the limits of its respective territory. And we do not believe, nor can we believe, in such a case, that by virtue of the said article, the two governments agreed to concede to foreigners a greater and more efficacious protection than that due in justice to their own citizens, nor that it was proposed to establish inequality regarding protection between citizens and foreigners respecting the manner or the means of reparation due for the damages which might be occasioned in person or property” This interpretation made by the American commissioner of the clause of the treaty between Mexico and the United States regarding special protection due respectively to the citizens of each one of these countries, sufficiently rectifies the view that the government of your excellency, without attending to the manner and terms of payment of the amounts furnished by Mexicans in the character of forced loans, has the right to demand that its citizens shall be paid, without delay, that which may be due them from like cause.

With respect to your excellency’s insinuation concerning the pain which it would cause to know that the government established and recognized in Mexico had not the power nor was sufficiently just to repair the injuries caused to its own citizens, I understand that your excellency did not intend to cast an offensive doubt upon the present administration, since few persons can know and appreciate as well as your excellency the upright intentions of the President and his advisers, and the assiduous pains with which they promote all that affects national interests, and that of all the inhabitants of the republic.

I improve this occasion to reiterate to your excellency the protestations of my distinguished consideration.

[Inclosure 2 in No. 850.]

Mr. Foster to Mr. Avila.

Sir: Your honor’s note of the 6th instant, relating to the questions occasioned by the presentation of the claim of Walter Henry, deceased, has been received and carefully considered. It discusses in the main the right to diplomatic intervention of the said claim before a resort to the Mexican tribunals, and the exemption of American citizens from forced loans.

On the first point, it is probably only necessary to say that, having referred to the Department of State at Washington copies of your honor’s previous note and my reply thereto, in approving of the course pursued by this legation, the Secretary of State uses the following language: “Your reply to Mr. Avila presents very cogently the views entertained by this government as to the perfect right of diplomatic intervention for redress in such case of wrong. The inferential doctrine now set up by the Government of Mexico, that only a judicial denial of justice may warrant foreign intervention through diplomatic channels, is wholly inadmissible.”

The question of exemption from forced loans opens up a subject of fruitful discussion, which was quite lengthily considered in the conferences which took place in August and November of last year between your honor’s predecessor and myself, when, under instructions from my government, I was seeking to effect some treaty stipulation or other satifactory agreement upon the subject. As the present discussion is only an incident to the presentation of the claim referred to, I do not consider it profitable to enter at length upon an answer to the points presented by your honor, unless I can have an assurance from you that it is the desire of the Mexican Government to take up the question with a view to reaching an international agreement thereon. Such agreement my government considers as of essential importance to the maintenance of cordial relations of friendship, because so long as the Mexican Government tolerates or refuses to make redress for the character of exactions and outrages as were inflicted upon American citizens during the last revolution, there will always exist a cause of disturbance to the friendly relations which ought to exist between the two, republics. The claim of exemption from forced loans which my government makes on behalf of its citizens, is a right recognized by all nations ruled by a constitutional system of government which embraces the legislative power, from which nations Mexico would not willingly consent to be excluded. It is an exemption which Mexico has in times past conceded to the subjects of Great Britain and other nations. It is an exemption which Mexico proposed to France in 1838 to guarantee to all its inhabitants. It is an exemption which the republican government of Juarez, at Vera Cruz, in 1859, by the complete ratification of a treaty stipulation on its part, offered to the United States. It is an exemption which the Mexican Government, through its minister of foreign affairs, on the 27th of March, 1881, expressly recognized and enlarged to embrace [Page 754] extraordinary contributions, and in the most solemn language interpreted the tenth article of the treaty with Great Britain, removing therefrom any possible doubt as to its meaning. Finally, it is an exemption which the highest authority known to the Mexican system of government has declared to be the right of every inhabitant of this republic. This decision of the supreme court, although given in a single suit, as must necessarily be the case, is the interpretation of the constitution for the entire nation and for all branches of the government, and should have greater weight with the existing administration because that court was created by the same revolution, and came into judicial power at the same time.

It only remains for me to notice a reference in the first and last paragraphs of your honor’s note of the 6th instant. The spirit of my note of the 22d of October last was made necessary by the facts which I was called upon to relate. If the language thereof has been considered harsh, the fault must rest upon the subordinate Mexican officials at whose hands American citizens have suffered the exactions and outrages of which it was made my duty to complain. But in presenting these disagreeable matters, and in discussing the principles of law and government and the international rights, duties, and obligations growing out of them, it has been the most distant from my design to reflect in the remotest degree upon the motives and good intentions of the present executive of Mexico. While it has been a source of regret to my government and to me that there has been so wide a difference on almost all the questions which have been presented for adjustment, I well understand that it is not my province, neither is it my desire, to question the honesty of the motives which influence the decisions of your honor’s government on these matters. Neither have I on fitting opportunity omitted to advise my government of the successful work which the executive of this country has accomplished and is accomplishing in preserving the peace, and of the earnest efforts made to secure the blessings of law and order to all the inhabitants. I need hardly add that my government is deeply interested in the continued success of that of Mexico in this good work, and that your honor will always find me ready to aid and encourage therein.

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