Mr. Olney to Mr. Romero.
Washington , January 29, 1897 .
Sir: I have the honor to acknowledge the receipt of your note of the 27th instant, setting forth the objections to the draft of a protocol referring the claims of Oberlander and Messenger to arbitration.
The first objection is that your Government is not willing to include the claim of Mrs. Messenger in the reference to the arbitrator, because in the correspondence which took place in regard to the matter you understood that the Government of the United States had desisted from the Messenger claim.
[Page 373]I have caused the correspondence between this Department and our minister in Mexico to be carefully examined with reference to this claim. It will be remembered that the claims of Oberlander and Mrs. Messenger were jointly presented, although there were separate memorials, and that they have been treated together throughout the entire correspondence. On June 22, 1893, this Department sent to Mr. Gray, our minister in Mexico, the memorials of Oberlander and Mrs. Messenger, with instructions to bring the claims unofficially to the attention of Mr. Mariscal, with a view of obtaining from the Mexican Government such a report of the facts as would enable the United States to decide upon its proper course of action. On November 25, 1893, Mr. Butler, our chargé d’affaires ad interim in Mexico, was directed to present the claims for payment, with the hope that the Mexican Government would “give both these claims an early and favorable consideration and make to each claimant a just and substantial indemnity.” In that instruction Mrs. Messenger’s complaint and the grounds of her right to indemnity were set forth as follows:
Mrs. Messenger’s complaint is of her illness and the injury to her nervous system resulting from the fright and shock she suffered when her house was violently broken into by the Mexican police officers on the occasion of Oberlander’s abduction. Having given their hospitality and the shelter of their home to their unfortunate countryman, fleeing from his relentless pursuers, she and her husband might at least have relied upon ordinary feelings of humanity and common respect for the sanctity of a private dwelling as securing them from invasion. But they were mistaken; the Mexicans stealthily surrounded the house, and, availing themselves of the momentary absence of Mr. Messenger, who, suspecting evil, had gone to seek the aid of a neighbor for the defense of his unhappy guest, burst open the doors and, with disregard of all decency and propriety, to the great terror and indignation of the lady, after a violent scuffle, dragged their victim away, as Mrs. Messenger supposed, to his immediate death.
This lady was expecting in a few months from that time to become a mother, but the shock of these outrages brought on a severe illness, which resulted in a miscarriage on the 25th day of May, 1892. Since that time her health has been bad, though previously it had always been excellent; much of the time she has been sick in bed, is often unable to perform her household duties, and suffers great and distressing nervous disorders, tending, as her physician says, “to a permanent or chronic state.”
Her condition is directly traceable to the conduct of the Mexican policemen at her house on the night of May 21, 1892.
The mere breaking into the house by the policemen would constitute a just ground for indemnity against Mexico, acting as they were under the orders of the Mexican Justice Fuertes for the arrest of Oberlander. The directly resulting injuries to the lady of the house greatly aggravate the damages she is entitled to claim.
On May 10, 1894, the Department called the attention of Mr. Gray, our minister, to the instruction of November 25, 1893, in reference to the claims of Oberlander and Mrs. Messenger, and instructed him to call attention to these cases and press for a reply. March 15, 1895, the Department wrote to Mr. Butler, chargé d’affaires ad interim, in regard to both claims, as usual. The closing paragraph is as follows:
The Department is disposed to admit the correctness of the view taken by the Mexican Government that Mrs. Messenger’s illness was brought on, not so much by the forcible entry of her house as it was by her own conduct in pursuing the kidnaping party, and that she is therefore probably not entitled to the large damages claimed by her. But the fact that her house, or that of her husband, was broken into and their guest forcibly abducted undoubtedly gives them ground to demand adequate indemnity.
On June 7, 1895, Mr. Butler’s attention was called to “the claims of Charles Oberlander and Mrs. Barbara Messenger,” and he was informed that “this Government desires a prompt response from the Mexican Government to its latest representation in these claims.” On November [Page 374] 30, 1895, this Department received the law and the evidence affecting both of these claims and said to Mr. Ransom, our minister:
This Government, after careful consideration of all that has been said on both sides, is satisfied as to the facts, and is constrained to request payment of the indemnity, subject to the modification as to Mrs. Messenger’s claim made in the instruction of March 15, last.
On May 15, 1896, Mr. Ransom was again instructed “in regard to the claims of Charles Oberlander and Mrs. Messenger,” and informed that “as the matter now stands nothing seems to be left open for further discussion except the amount of the indemnity to which Oberlander and Mrs. Messenger are entitled.” That was the last communication to our minister on the subject.
This Government modified its demand in behalf of Mrs. Messenger March 15, 1895, in the language above quoted, but the claim was never withdrawn, and the United States has never ceased to urge the payment of an adequate indemnity to Mrs. Messenger for breaking into her house and forcibly abducting therefrom a fellow-countryman whom she had received as a guest. The claim of Mrs. Messenger has always been regarded as practically inseparable from that of Oberlander; it grew out of the same facts and depends largely upon the same evidence. No reason is seen why it should not be referred to the arbitrator for consideration along with the claim of Oberlander. The reference to arbitration will carry with it not only Mrs. Messenger’s memorial, but all that this Department and the Government of Mexico have said with reference to her claim, including the admission of March 15, 1895, above quoted.
Your second objection is to the recital of facts in the preamble of the protocol.
This precaution was intended merely as a brief description of the issues raised in the claim; but as the case is to be heard upon the correspondence, documents, and proofs which have passed between the two Governments, nothing is necessary in the preamble but such a description of the claim as will enable the arbitrator to identify it. I am, therefore, willing to waive anything in the preamble to which you object.
The third suggestion relates to article 5, and is to the effect that the expenses occasioned by the arbitration shall be borne equally by the two Governments. This suggestion is agreed to, and I propose that article 5 read as follows:
Reasonable compensation to the arbitrator, and other expenses occasioned by the arbitration, shall be paid in equal moieties by the two Governments.
The expense of presenting its own case is, of course, to be defrayed by each Government.
With reference to other changes in the protocol orally suggested by, you in our conference yesterday morning, a memorandum was taken of these and the draft for signature has been accordingly amended. I send you herewith a copy of the amended draft, as well as one of the draft as originally drawn—the latter to replace that which was sent to you January 26, but which has been used by us in noting the changes agreed upon.
I have endeavored to eliminate from the preamble all matter to which you object, but I hope you will still regard it as open to such further changes as will make it a more satisfactory description and identification of the subject matter in question.
Accept, Mr. Minister, etc.,