No. 440.
Mr. Bayard to Mr. Manning.

No. 65.]

Sir: Your dispatch No. 84, of the 9th instant, in relation to the recent occurrence at Nogales, Arizona Territory, indicates that a serious misapprehension has in some way arisen as to the position of the United States Government touching the course which is expected of the Mexican authorities m the premises.

My telegram of the 7th instant to you, and your reply of the 8th, show the distinct formulation of the demand of this Government that Mexico should at once restore the rescued prisoners to the United States jurisdiction, and should either inflict prompt punishment on the Mexicans who effected the rescue or deliver them up to the United States, and the prompt and frank acceptance of this proposition by Señor Mariscal.

Owing, as would appear, to a telegraphic report from Señor Eomero, dated the 8th instant, Señor Mariscal, on the 9th, sought an interview with you, and made statements which imply an impression in his mind that this Government had altered its position in a most important particular. As you report, after having been shown the minister’s telegram, Señor Romero states that I had given the Mexican Government the option to deliver the offenders at Nogales to the American authorities for punishment, or for the Mexican Government itself to inflict adequate punishment.” Señor Mariscals observations to you exhibit the impression this report created in his mind, when he declared “that the President had determined to follow the latter course and would punish the perpetrators of the outrage promptly and adequately,” and that Lieutenant Gutierrez, who, as Señor Mariscal explained, had been arrested on the American side and rescued by the Mexican soldiery, was not yet apprehended, but that the Mexican Government “is on his track and will catch and punish him.”

No such option was created or tendered by me to the Mexican Government as to the punishment of the prisoner or prisoners who had been rescued from the jurisdiction of the United States authorities. Having in mind the provision of our extradition treaty, which relieves either party from the obligation to extradite its own citizens, I refrained from formal demand for the surrender of those Mexican soldiers who had invaded our territory and forcibly rescued a prisoner there in legal custody, and intimated that if Mexico did not herself assert the right she claims in respect of punishing her own citizens, the extradition of the rescuers might reasonably be expected. As to the prisoners rescued from the custody of the United States officials in Arizona, no such alternative was contemplated or suggested by me. Armed invasion of our territory and rescue of a prisoner from our lawful jurisdiction could confer upon the rescued person no asylum in Mexico, nor bring him within the formalities of extradition. It becomes, under such circumstances, the simple international duty of the Mexican Government to undo the wrong committed by its own soldiery, by restoring the rescued prisoners to the jurisdiction from which they had been wrongfully taken; and the obligation to do so was cheerfully admitted by the Mexican Government on the 8th instant, before Señor Mariscal received the apparently misleading telegram of Señor Romero.

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It doubtless occurred to you, on hearing Señor Mariscal’s declaration, reported in your No. 84, that an abrupt and unaccountable change was supposed to have taken place in the position of this Government. Your familiarity with questions of international jurisdiction must have suggested to you that the case of the rescued prisoners stood on a very different basis from that of his rescuers, and that even were no obviously graver difficulties in the way, there might be question whether the offense for which he had been taken into custody in the United States were justiciable in Mexico, or comprised in the treaty schedule of extraditable offenses. The promptness with which this Department has applied the corrective will, however, prevent any difficulty arising from your apparent assent to Señor Mariscal’s changed position without question.

I have written to Señor Romero correcting the misapprehension under which he, or Señor Mariscal, or perhaps both, appear to have labored, and with the same object I sent you late in the afternoon of the 17th instant a telegram.

I am, etc.,

T. F. Bayard.