No. 442.
Mr. Morgan
to Mr. Evarts.
Legation of
the United States,
Mexico, November 13,
1880. (Received November 27.)
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.,
[Inclosure 1 in No.
133.—Translation.]
Mr. Fernandez to
Mr. Morgan.
Department of Foreign Affairs,
Mexico, October 30,
1880.
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.
[Inclosure 2 in No. 133.]
Mr. Morgan to Mr.
Fernandez.
Legation of the United States,
Mexico, November 5,
1880.
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.
