No. 442.
Mr. Morgan to Mr. Evarts.

No. 133.]

Sir: Referring to my dispatch No. 125, and its inclosure, I now inclose translation of note addressed to me by Mr. Fernandez, from which you will observe that the Mexican Government declares that if there be any citizens of the United States who have been illegally and forcibly impressed into the Mexican Army the courts of Mexico are open to them, and that it is to those tribunals they must apply to obtain their discharge.

I also inclose copy of the reply which I made to Mr. Fernandez’s note on the 5th November, in which I endeavored to show him that the course which his government seemed disposed to adopt was not only violatory of the comity of nations, but a positive violation of the treaty stipulations between the two countries. To this note I have received no reply.

I am, &c.,

P. H. MORGAN.
[Inclosure 1 in No. 133.—Translation.]

Mr. Fernandez to Mr. Morgan.

Mr. Minister: I have had the honor to receive your excellency’s note dated the 27th instant, in which yon state to me that your government is informed that Felipe Burnato, Santos Hernandez, Miguel Guerrero, Manuel Guerrero, and George Cimo, whom your excellency declares to be citizens of the United States of America and [Page 749]residents of Texas, have been taken by impressment, and form a part of the thirty-first battalion. In your note your excellency adds that you have instructions from your government to ask of mine the immediate release of those persons, and that they be permitted to return unmolested to their homes in Texas, or to go, in like manner, to whatever part of Mexico they may desire or have business, as well as that they be reasonably indemnified for the detention, molestation, and trouble to which they have been unjustly subjected; and yon conclude by stating that you are also instructed to urge upon the Mexican Government the apparent necessity of the adoption, in the interest of international peace, friendship, and good neighborhood, of such measures, and the immediate issuance of such orders to the civil and military officers of the frontier, as will prevent occurrences of a like nature in the future.

In due reply, I have the honor to state to your excellency, by direction of the President, that in Mexico, as in any other country, the tribunals are instituted to administer justice, repairing the injuries which the inhabitants of the republic receive, whether from other individuals or the authorities, and that consequently the parties in interest should make their representations to the said tribunals. Your excellency may rest assured that if they prove that they have been taken by force, and establish their foreign nationality, upon which this department can say nothing definitely, they will receive justice.

I conclude, Mr. Minister, by stating that the President will give due consideration to the suggestions contained in the final part of the note of your excellency, to whom I offer my profound respect.

JOSÉ FERNANDEZ.
[Inclosure 2 in No. 133.]

Mr. Morgan to Mr. Fernandez.

Sir: I acknowledge receipt of your note of the 30th ultimo, in reply to the one which I had the honor to address you on the 27th ultimo, in which, acting under instructions from my government, I demanded the release of certain citizens of the United States therein named, who had been impressed into the military service of Mexico.

Your honor informs me, under direction of the President, that in Mexico, as in other countries, tribunals are instituted to administer justice and to repair injuries which the inhabitants of the republic receive, whether from individuals or the authorities.

Your honor informs me that the citizens of the United States, in whose behalf my government has instructed me to interpose, must apply to those courts for redress, and you assure me that if they prove that they have been taken by force, and establish their foreign nationality, they will receive justice.

I protest against the doctrine enunciated by your honor, that citizens of the United States impressed into the military service of Mexico are only to be released from unlawful duress by ordinary process of law emanating from the tribunals of that country. The comity of nations guarantees the inviolability of the person of a citizen or subject who finds himself within the limits of a friendly foreign country, so long as he does nothing in contravention of the laws thereof. Not only is this public principle a well recognized one, as I believe, but I think it is incorporated in the fourteenth article of the treaty between the United States and Mexico of 1831, and also in that portion of the treaty between the same powers, which is revived in the seventeenth article of the treaty of Guadalupe-Hidalgo.

If the facts, therefore, are as they are stated to be, the impressment of the parties who are the subject of this correspondence into the military service of Mexico was not only a violation of the protection which they enjoy under the comity of nations, but it was also a direct violation of the immunities which are assured to them by solemn treaty stipulations between the two governments, and it therefore becomes, of necessity, a diplomatic question between the United States and Mexico. It is the United States who are claiming from Mexico the fulfillment of her treaty obligations towards citizens of the United States, whom she is bound to protect. I cannot admit that citizens of the United States who happen to be in Mexico in the pursuit of business or pleasure may be seized at the caprice of a recruiting officer of the Mexican army, and forced to do duty as a Mexican soldier, or that, in such an event, the courts of the country are the only channel (or the proper channel) through which their release must come. Their impressment would have been an act of the Mexican Government, through its recognized officers, acting in their official character. The act committed would be a violation of the comity of nations, and (as between the United States and Mexico) a violation of treaty stipulations.

[Page 750]

In such an event (and the event has now happened) the United States is the power upon whom the responsibility of asking for the release rests. That they should shirk this responsibility by referring them to the courts, when they may be forced from place to place or confined in barracks, and thus have the courts made inaccessible to them, even if they had the means to invoke their aid, if one was holding its sessions in the neighborhood of the place where they happened for the moment to be, is, I think, not to be expected from any government which is mindful of its obligations toward its citizens, and which owes to them its protection in whatever country they may happen to be. I call your honor’s attention to the fact that the course which, under instructions from my government, I have pursued in the case of the persons who are the subjects of this correspondence, is the one which was adopted by my predecessor in the case of Emelio Baig. Baig had been impressed in the service of the Mexican army. His release was claimed by Mr. Foster on the ground that he was an American citizen. The then acting secretary for foreign affairs, Mr. Avila, ordered his release. It does not appear from the correspondence between this legation and the foreign office that there was any question raised that the application for his release was not a proper subject for diplomatic action. The question now before us is a very serious one. I have replied to your honor’s note at length in the hope that further consideration may show you that both under the comity of nations and the treaties between our respective governments, the parties in behalf of whom the present application is made are entitled to relief, and that the relief should come, ex proprio motu from the government through whose officers the wrongs inflicted upon them have come, which officers are under immediate and absolute control; and I have called your attention to the case of Baig, in the hope that the action of the Mexican Government, founded as it was in law and reason, will be followed now, and that your honor’s government will thus find itself able to comply with the first request contained in my note of the 27th ultimo, which request I now have the honor to repeat.

I renew to your honor the assurances of my distinguished consideration.

P. H. MORGAN.