No. 462.
Mr. Foster
to Mr. Evarts.
Legation of
the United States,
Mexico, February 5, 1880.
(Received February 24.)
No. 1101.]
Sir: With my No. 969, of June 7, 1879, I sent you a
copy of the contraband law passed by the Mexican Congress, imposing
penalties of imprisonment for its violation. Since it went into operation
three cases have occurred in the Pacific ports where American citizens have
been imprisoned, and all of these cases have been the occasion of complaints
to this legation.
The first of these was that of Captain Metzger, the master of the American
steamer Newbern, of which the Department is already fully advised. The
second case was that of Mr. Kemp, arrested at Manzanilla, for a clerical
error in the consular invoice, which error was manifest upon the face of the
document itself. Notwithstanding this fact, Mr. Kemp was arrested and
imprisoned, and only after an expensive litigation was acquitted and
discharged. I made this case the subject of a note to the acting minister of
foreign affairs, in which I suggested the propriety of the Mexican
Government examining the question with a view to directing the customs
officials to exercise some reasonable discretion in such cases, when the
errors are clearly clerical, and where no intent to commit a fraud exists.
The minister in his reply limited himself to inclosing me the decision of
the court acquitting Mr. Kemp.
Since writing my note regarding Mr. Kemp’s imprisonment, I received
information of the arrest of Captain Jacobson, of the American schooner
Dreadnaught, by direction of the custom-house authorities of Acapulco, his
imprisonment, trial, and acquittal by the federal court, upon trivial and
unfounded charges of violation of the contraband law. These three cases in
the three leading ports of the Pacific seemed to establish the fact that the
customs authorities were disposed to use the new contraband law to
unnecessarily harass American citizens, as, in every instance, the federal
courts decided that the law had not been violated and the arrest and
imprisonment were not justified. Accordingly, in acknowledging the receipt
of the minister’s note, I thought proper to again direct his attention to
the subject of my previous note, and sought to impress upon him the
desirability of having instructions issued to the customs officials to
exercise some reasonable discretion in cases similar to those which had
occurred. I said to him that it was a poor compensation for the wrong
perpetrated upon the personal rights and reputation of American shipmasters
and merchants to obtain a judicial decision in their favor after an
expensive and annoying litigation, and that if the practice in force at the
chief ports of the Pacific was to be persisted in, he might anticipate new
reclamations on the part of the individuals aggrieved and remonstrance on
the part of my government.
I inclose herewith copies of the correspondence relating to this subject.
[Page 731]
No answer has yet been received
from the foreign office, but the minister has stated to me verbally that lie
has directed the attention of the department of finance to the matter, and
that he will in due time reply to my notes. I regard it as a question of
importance for American shipping and commerce, and will endeavor before my
departure for my new post to obtain some relief from future annoyances.
I am, &c.,
[Inclosure 1 in No. 1101.]
Mr. Foster to Mr.
Zárate.
Legation of the United States,
Mexico, January 16,
1880.
Sir: I take the liberty of inclosing to your
honor a copy of a communication received from the consul of the United
States in Manzanillo giving an account of the imprisonment of an
American citizen for error in an invoice of goods imported at said port.
It would appear from the consul’s statement of facts that the error was
upon its face a plain clerical one, and the conduct of the consignee in
bringing the matter promptly to the attention of the collector of
customs would indicate that there was no intention to commit a fraud on
the revenue.
As the case has been submitted to the federal courts, I anticipate the
answer which would be given, should I present a formal reclamation, that
the executive cannot interfere with the judicial department of
government; and such is not my purpose at this time. My object is rather
to suggest the propriety of the proper department of your honor’s
government examining this question of errors in invoices and ship’s
manifests to ascertain if it would not be to the interest of the Mexican
Government as well as of commerce to direct the custom-house officials
to exercise some reasonable discretion in such cases as the one now
under consideration, where the error appears to be manifestly a clerical
one, easily corrected by the invoice itself, and where no intent to
commit a fraud exists.
Clerical errors are likely to occur under the most exact business system,
and if consignees or masters or other officers of vessels are to be
arrested and thrown into common prisons of the ports with the lowest
class of criminals, when the error is manifest and no fraud intended, a
persistence in such a practice can not fail to have an injurious effect
upon commerce and the fair name of the government. I recognize the
necessity of great strictness on the part of the customs officials in
enforcing the tariff regulations; but in such cases as the one referred
to there would seem to be an unnecesssary harshness which can not fail
to react to the injury of the treasury sought to be protected. I have
not the slightest disposition to embarrass in any way the operations of
the tariff laws, but in my great desire to encourage a growth of the
trade between the United States and Mexico, I have ventured to make the
foregoing suggestions, in the hope that they may meet with the favorable
consideration of your honor’s government and relieve American merchants
and vessels from the hardships to which they are being subjected.
With the, &c.,
[Inclosure 2 in No. 1101.]
Mr. Morrill to Mr.
Strother.
Consulate of the United States,
Manzanillo, January 6,
1880.
Sir: I have to report that the United States
schooner Nidras, from San Francisco, anchored at this port November 24,
1879, bringing among other freight 162 packages of goods for Frank B.
Kemp, a native of Boston, United States.
Among the 162 packages were 100 cases of coal-oil, the gross weight of
which was entered exact, but the net weight was by mistake entered 650
pounds instead of 6,500, as it ought to have been, in the consular
invoice.
On arrival of the vessel Mr. Kemp having discovered the mistake,
presented his invoice to the collector, calling his attention to the
mistake, and asked what was best to do, declaring that it was a simple
fault of the pen. The collector answered that
[Page 732]
he could discharge the goods, and they would
arrange it satisfactorily, on which advice the goods were discharged.
Finally the collector decided that it must go to the district judge of
Colima, who put him (Mr. Kemp) in prison in the municipal building, and
his goods remain in the custom-house at Manzanillo. Mr. Kemp got sick
where he was confined, but, on application, he was transferred to this
consulate, under a bond, subject to the final result.
I put in his defense the 3d instant, and expect a decision very shortly,
He is charged with criminally introducing goods with intent to defraud
the government under the new contraband law of last June.
All of which I respectfully submit for your superior intelligence.
I am, &c.,
AUGUST MORRILL,
United States
Consul.
[Inclosure 3 in No. 1101.—
Translation.]
Mr. Zárate to Mr.
Foster.
Department of Foreign Affairs,
Mexico, January 27,
1880.
Mr. Minister: With reference to my note of the
21st instant, and for the information of your excellency, I have the
honor to inclose a copy of a communication which under date of yesterday
was sent me by the department of finance, and of the decision pronounced
by the district judge of Colima acquitting Mr. Frank B. Kemp in the suit
prosecuted against him on suspicion of defrauding the public
treasury.
I improve, &c.,
[Inclosure 4 in No. 1101.]
Mr. Foster to Mr.
Zárate.
Legation of the United States,
Mexico, January 30,
1880.
Sir: I have to thank your honor for the
information contained in your note of the 27th instant and its
inclosures, of the release from imprisonment of the American citizen
Frank B. Kemp. This action of the judicial authority, following upon
that of the acquittal of Captain Metzger, of the American steamer
Newbern, and the subsequent release from imprisonment of Captain
Jacobson, of the American schooner Dreadnaught, goes to strengthen the
suggestion made in my note of the 16th instant that instructions be
issued to the customs authorities to exercise some reasonable discretion
in the cases of manifest clerical errors, or immaterial defects in
invoices and manifests. An examination of the decisions of the three
tribunals in the cases cited, will show that in all these instances the
customs authorities have acted without legal justification in causing
the arrest and imprisonment of the American citizens named. It is a poor
compensation for the outrage perpetrated upon their personal rights and
their reputation to obtain a judicial decision in their favor after an
expensive and annoying litigation, and if the practice in force at the
chief ports of the Pacific is to be persisted in, your honor may
anticipate not only new reclamations on the part of the individuals
aggrieved but most earnest remonstrance on the part of my
government.
It was with the object of avoiding such grave difficulties that I was led
to make the suggestion contained in my note of the 16th, and I think an
examination of the three decisions referred to will enable the
department of finance to frame some appropriate instructions to the
customs authorities with that end in view.
I have, &c.,
[Inclosure 5 in No. 1101.]
Mr. Sutter to Mr.
Strother.
Consulate of the United States of America,
Acapulco, January 17, 1880.
No. 15.]
Sir: On the arrival at this port of the
American schooner Dreadnaught, of San Francisco, on the 27th of December
ultimo, the master of said vessel at the time she
[Page 733]
was boarded by the custom-house officials,
delivered to the “comandante de celadores” a list of stores and other
articles, written in the English language, as well as a list of his
personal effects. When the master, J. H. Jacobson, came on shore I asked
him if he had been very particular in manifesting to the custom-house
everything he had on board, to which he replied in the affirmative.
However, when he, on further inquiries on my part, told me he had some
dry goods, flour, &c., on board, in excess of the ship’s stores
proper, I, anticipating trouble with the custom-house, at 9 a.m. of the
day of his arrival, sent a telegram to the minister of finance, in
behalf of Captain Jacobson, requesting him to grant to the captain the
privilege of disposing of his goods here, at Acapulco, on payment of
single duties. This privilege had been granted last year to two German
vessels, Polynesia and Rosa and Isabel.
At about 5 p.m. of the same day, I was requested to call at the
custom-house on urgent business. At the same hour I received a telegram
from the minister of finance with instructions for Captain Jacobson to
forward to him a petition made out in due form. This telegram I
presented to the collector, who, as well as the “visitador” showed
themselves rather indignant because I had addressed their superior, as
they said, without giving any notice to them of the existence of such
goods on board of the schooner Dreadnaught. I simply referred them to
the list of “stores and other articles” the captain had delivered in the
morning to the proper official, in compliance with the laws of the
country, assuring them that no disrespectful action on my part toward
them had been contemplated. They then only discovered that the list in
question presented by the captain had not been translated as yet, when I
offered my services for the purpose, and was then requested to see that
the captain make out in the Spanish language, two distinct lists, one
containing the shipments proper, and the other showing all the articles
the captain might dispose of. This was done in good faith the same
evening, and on the morning of the 28th, I presented them myself to the
collector, who appeared to be satisfied, and showed me a telegram he
addressed to the minister of finance informing him of the receipt of the
said two lists, and asking him for further orders.
On the 29th Captain Jacobson forwarded to the minister of finance his
petition made out in due form, stating that having found a return cargo
of cedar lumber at Manzanilla, he had now no necessity to proceed to
Amapala, Honduras, a free port, for such a cargo, and was anxious to
dispose of these few goods here, provided he was permitted to do so on
payment of single duties, cost price of goods approximating $1,000.
On the same day the vessel commenced unloading the manifested cargo for
the house of A. Demproolff, and I supposed that nothing else would be
done in the matter until the minister of finance might communicate his
decision of the case to the customhouse and to the captain, when, to my
great surprise, I was informed, on the morning of the 31st, that the
schooner had been seized the night previous, and that the captain was
brought on shore as a prisoner.
Shortly after 8 a.m. the captain of the port called at my office,
bringing Captain Jacobson with him, and informing me that he had
received orders for seizing the vessel and arresting her master from the
district court, and that out of respect to the ladies on board, Mrs.
Jacobson and Miss Johnson, he would not send any soldiers on board, but
would simply order her sails to be landed. I thanked the captain of the
port for his kindness, and accompanied him and Captain Jacobson to the
court, where Captain Jacobson, myself acting as interpreter, was
notified that he had been arrested, and his vessel seized on suspicion
of having smuggled, the said charge being preferred against him by the
custom-house. I then offered bail for the captain, which was accepted,
and the captain was then notified he might remain at the consulate,
instead of being confined in jail, until he should be sent for again. On
our return to the consulate the captain entered his protest against any
actions of the authorities of the port of Acapulco which might prove
detrimental and injurious to his person, to his vessel, and to his other
interests. Copy of this protest was at once served upon the district
court.
After a great deal of trouble and worry, the district court of Acapulco
gave the following decision, on the 14th instant, declaring that the
charge of smuggling brought against Captain Jacobson was unfounded,
inasmuch as he had manifested his goods not only to the custom-house,
but even to the minister of finance; that, however, he must pay a fine
of $1,000 imposed upon vessels in transit, by sections 7, 8, 9, and 10
of circular of the minister of finance of September 8, 1877, and section
2 of circular of April 11, 1878, for not bringing the proper documents
covering goods in transit; that the goods be returned by steamer to San
Francisco, and that the captain be set free and again placed in
possession of his vessel.
The collector and accountant of the custom-house accepted this verdict,
whilst Captain Jacobson, through me, appealed to the circuit court,
protesting against the penalty of $1,000 imposed on him.
Captain Jacobson made a petition to the circuit court, and by next
Monday’s mail the same, as well as all the required documentary
evidence, will go forward to Mexico
[Page 734]
to the address of Messrs. A. Gutheil & Co.,
who have been requested by Mr. A. Demproolff to take the proper steps
near the circuit court for obtaining the remission of the penalty of
$1,000, and for working against the intrigues of the “visitador,” who, I
am told, thinks vessel and goods should have been confiscated.
I would respectfully beg that yourself and Mr. Foster, if acquainted with
the (promotor fiscal) District Attorney Licenciado Montiel y Duarte,
approach this gentleman unofficially, recommending him to consider the
case favorably, or that you kindly consult with Mr. Sammer, of Messrs.
Gutheil & Co., what had best be done in the matter.
In the mean time Captain Jacobson has presented to the custom-house a
petition stating that, on account of the prolonged stay at this port,
and by reason of the heavy expenses he has incurred, he is in need of
money, the more so should the sentence of the court be confirmed
compelling him to pay the fine, and asking that his goods be admitted on
payment of single duties, instead of being returned to San Francisco.
The collector advised him to make this application, and promises to
recommend it favorably to the minister of finance. Should it be granted,
it would be a great step in the right direction.
On Monday we shall ask the court to let the vessel depart under bond to
be given by merchants residing here, and have reasons to believe that I
shall succeed, and save her any longer delay at this port.
I shall continue to inform you of the proceedings in the case, and once
more bespeak your good offices in behalf of the captain and vessel.
Your obedient servant,
