No. 215.
Mr. Frelinghuysen to Mr. Morgan.
Washington, July 24, 1882.
Sir: I have received and considered your dispatch No. 447, of the 17th ultimo, transmitting copies of the correspondence which, in pursuance of the Department’s instruction No. 189, of 10th November last, you opened with the Mexican foreign secretary in regard to the murder of Mr. and Mrs. Thomas Gartrell, near the city of Durango.
I cannot but express the regret I feel on observing Mr. Mariscal’s statement that, if your representation of the facts is the omen of reclamation, the Mexican Government considers itself compelled at once to declare through him that it is not possible to accept your intervention, * * because it does not appear on the register of matriculation under Mr. Mariscal’s charge that Mr. Gartrell and his wife are citizens of the United States.
This question of the prior necessity of matriculation, as an alien resident of Mexico under Mexican law, before a foreigner can be entitled, in Mexico, to the assertion of the rights which international law ascribes to all foreigners, is one of the few questions between the two countries which remain pending in an unsatisfactory condition.
The records of your legation show that the subject has been the occasion of discussion between the two governments for many years. As [Page 395] you have doubtless familiarized yourself with the correspondence, I need refer to it no farther than to say that the divergence as to the manner in which the fact of matriculation was to be accomplished has been settled on the acceptance by the Mexican Government of the presentation of the visaed passport as evidence of foreign citizenship, and that the points remaining open concern only the rights which accrue to foreigners in virtue of such passport, or which may be denied to them in the absence of such further formality as is now insisted upon.
This government is not disposed to question the convenience of formal matriculation as evidencing the right of foreigners resident in Mexico to certain civil and domiciliary rights prescribed under the Mexican law. But it does question the claim of Mexico to debar from the protection of their own government citizens of the United States who may be temporarily in Mexico and who have not matriculated.
We hold, under the general principles of international law, that the right of an American citizen to claim the protection of his own government while in a foreign land, and the duty of this government to exercise such protection, are reciprocal, and are inherent in the allegiance of the citizen under the constitution of his own land, and that, inasmuch as this reciprocal right on the part of the citizen and duty on the part of his government is not created by the laws of any foreign country, it cannot on the other hand be denied by the municipal law of a foreign state. Holding thus, it is impossible for this government to accept the proposition that its right to intervene for the protection of one of its citizens in Mexico can only begin with, and be created by, the matriculation of such a citizen as a foreign sojourner in Mexico, and can only exist and be exercised with respect to the redress of wrongs which such a citizen may suffer there after his name shall have been inscribed on the books of the foreign office in the city of Mexico.
This last statement of the question is not a hypothetical one; it has become expressly enunciated by the Mexican foreign secretary in the ease of your application for the matriculation of American citizens in whose behalf you had intervened.
Your own legal knowledge will show you that serious grounds exist in practice for questioning the Mexican contention on this point, even were its justice admitted, which it is not. For an American, say, for instance, a shipmaster in port, charged with some technical offense against the revenue, or arrested through the arbitrary action of an ignorant official, might, although he had no intention of sojourning in Mexico, and when it would not be claimed that there was any necessity for matriculation, be thus brought within Mexican jurisdiction under circumstances calling for the diplomatic intervention of his national protector. Or again, an American citizen when crossing the frontier on a merely temporary errand might be held to military service in the Mexican army and subjected to detention and personal loss and damage, for which, under the decision of Mr. Mariscal he could not claim relief unless armed with a certificate of matriculation obtained before the act complained of. And again, the property rights of an American might possibly be assailed in Mexico while he himself was not within Mexican jurisdiction. I have presented hypothetical cases. Others will occur to you wherein the rigid application of the doctrine enunciated by Mr. Mariscal would operate to bar all intervention for protection or redress.
I repeat, the status of a foreigner is, under international law, inherent, and neither created nor destroyed by Mexican law. The evidence of the foreign status of an individual consists in the facts as they exist, or by the authentic certification of his own government as in the form of [Page 396] a passport; it does not originate in compliance with a Mexican municipal statute.
I desire that when you have familiarized yourself with the subject in its legal and international aspects, and in view of the precedents furnished by your legation files, you will present the question earnestly to the attention of Mr. Mariscal. In doing so, while your representations will of course be temperate and courteous, you should make it apparent that the United States cannot recognize the fact of matriculation as controlling the right of a citizen of the United States to ask the intervention of this government in case of need.
As the treaties between the two countries which express the reciprocal rights and privileges of their citizens in the territories of the other have been terminated recently by the act of Mexico, your arguments must necessarily rest on the principles of international law. In fact, the absence of specific treaty stipulations is quite immaterial; treaties do not create the personal rights of men, they may recognize their existence and define their exercise within certain practical and convenient bounds.
You should, further, be careful to dissociate this important subject from the specific case of the Gartrells, or any particular reclamation now pending. Such cases rest on their merits. This matriculation question rests on a higher plane, it concerns our right to protect our citizens by presenting the facts in their cases and asking consideration thereof according to the recognized principles of justice and equity.
I am, &c.,