No. 248.
Mr. Frelinghuysen to Mr. Morgan.

No. 570.]

Sir: Your dispatches Nos. 775 and 776, both of the 25th ultimo, have been received. Your No. 775 is in relation to the claim of the owners of the American schooner Daylight, of Bath, Me., which vessel while at anchor outside of the bar near the harbor of Tampico, being then on her voyage from Key West, Fla., with a cargo of lumber for Tampico, was, on the 21st of March, 1882, at night, run into by the Mexican gunboat Independencia, the vessel and cargo becoming a total loss; with that dispatch you inclose a copy and translation of a note of the 23d of the same month on the subject, addressed to you by Mr. Fernandez, the secretary for foreign relations of Mexico.

I have given to the suggestions of that minister’s note such consideration as its importance and the high source from which these suggestions emanate demand. Mr. Fernandez, conceiving that the views of his Government as heretofore presented by him had not been fully understood by this Department, reiterates the essential points of his previous arguments, stating, in a categorical form, the grounds upon which they rest. These, for convenience, I briefly restate. They are: “That the owners of the Daylight can make their direct demand on the Mexican Government before the Mexican tribunals without previous permission. That the Mexican Government is considered as a person, and as such can sue and be sued before the proper tribunals.”

From these grounds Mr. Fernandez concludes that should the Government deem it best that the matter of the Daylight be settled between the two Governments, the United States minister and the Mexican department of foreign affairs will be the medium through which the settlement [Page 359] will be made, the department of war and navy acting as witnesses only of the facts. “But,” says Mr. Fernandez, “it having been a practice constantly sustained by the Government that a diplomatic course cannot be taken when it interferes in favor of persons, except in case of a denial of justice, Señor Mariscal and I had the honor to notify your excellency that the complainant (or complainants) must himself appear before the department of war and navy, regretting that such a course is necessary.”

Mr. Fernandez’s sixth and last conclusion is that “the disaster of the Daylight having occurred in Mexican waters the Mexican tribunals are the proper ones to hear this case, as well as any other which treats of the defining of civil or criminal responsibility, and decide what grade or form of responsibility must be laid upon the delinquents in the deplorable case.”

Upon a careful examination of these several propositions of the distinguished secretary for foreign relations of Mexico, I find myself wholly unable to agree with him in the conclusion that the doctrine embraced in them can, with any legal propriety, be considered applicable to the case of the Daylight. In his note to you of the same date regarding the case of the Sidbury, a copy of which accompanies your 776, referring to this same jurisdictional contention, Mr. Fernandez says: “This opinion does not merely rest upon the principle that the courts are called upon to redress injuries which are suffered by the inhabitants of the country or those who are transiently therein, for the purpose for which they are established is to administer justice.” Giving to this proposition the interpretation which it has received from all writers on public law, and hitherto accepted by all civilized governments, that is, that the municipal civil laws can only be held applicable to and operative on the rights, property, and persons of the citizens of the country and foreigners who may be either permanently or temporarily residing in the country, I find no difficulty in acceding to it. This, however, is all that can be claimed for it—all, as it is believed, that is claimed for it by the governments of Christian nations—and all that is allowed to it by the uniform declaration of writers on public law. “Considered,” says Halleck, “in an international point of view, either the thing or the person made the subject of the jurisdiction must be within the territory, for no sovereignty can extend its process beyond its own territorial limits so as to subject either persons or property to its judicial decisions, and every exertion of authority of its sort beyond its limits is a mere nullity and incapable of binding such persons or property in any other tribunals.”

The same doctrine is found stated in different forms of expression in Phillimore, in Wheaton, in Westlake, and in Woolsey. I am not aware that it has ever been questioned.

The owners of the Daylight were never residents of Mexico, either permanent or temporary. They are not known to have ever been in that country. The master of the vessel was not a resident of Mexico, either permanent or temporary, and was never in the country beyond the port at which his vessel might touch. At the time of the occurrence which gave rise to the claim the vessel could scarcely be said, with strict propriety, to have been in Mexican waters. She was anchored outside the bar, near the harbor of Tampico, in an exceptionally rough sea, at the close of a severe storm, which rendered it unsafe for her to attempt to cross the bar or enter the harbor. To insist that those claimants shall go from Maine to Tampico to seek redress in the Mexican tribunals for a grievous wrong suffered at the hands of a high [Page 360] officer of the navy of that Republic, and in such proceedings to be met by the evidence which the commander of the Independencia would readily be able to elicit from the ship’s crew, would, in the estimation of this Government, be a practical denial of justice. The Mexican Government is conceived to be justly responsible to this for the act of that officer, and consequently the views put forth by Mr. Fernandez in behalf of his Government cannot be accepted or acceded to by this.

Guided by the suggestions of my former instructions in regard to the matter, you will again, in the light of the observations made in this, bring the subject to the attention of the minister for foreign affairs, and you will say at the same time that the President hopes and expects that so just a claim as this is deemed to be will receive early consideration, followed by prompt and speedy adjustment at the hands of the Government of Mexico.

I am, sir, &c.,

FRED’K T. FRELINGHUYSEN.