Mr. Sherman to Mr. Sepulveda.

No. 376.]

Sir: I have to acknowledge the receipt of your No. 268, of the 23d ultimo, inclosing copy of a note from the Mexican foreign-office, stating that while the governor of Coahuila has been called on for a report in the case of R. H. Doane, under arrest on the charge of complicity in a robbery, the consul of the United States at Piedras Negras has no ground for complaint against the judge at that place for not answering two of his communications asking information as to Doane’s ease, because, by the Mexican consular law, judges are not obliged to give such information to foreign consuls, nor have the latter the right to request it.

Mr. Mariscal’s language is as follows:

The Mexican judges are not obliged to give any information to foreign consuls, neither have the latter a right to ask it, as may be seen in the law of 26th November, 1859, which is always sent to said officials when they are furnished with their exequaturs.

The law in question has been carefully examined by the Department, but it does not find in it any prohibition forbidding in express terms a consul to ask information of a judge in regard to the course of a criminal case affecting an American citizen.

  • Article 10, section 2, gives the consuls the right to offer to a judge information touching a case so pending, providing the consul shall not assume to act as attorney or lawyer for the defendant.
  • Article 12 requires the authorities and public officers of the consular district to “use the same decorum and civility in their replies” to the consuls, and prescribes the way in which the consuls may complain “when they think that their official actions do not receive due attention.” This certainly seems to contemplate a civil and decorous reply on the part of a judge to a consular request for information, even should the reply deny the consul’s right to ask it. It surely does not appear to absolve the judge from all obligation to reply, as Mr. Mariscal maintains.

The Mexican law, therefore, at most only excludes by omission the right of a consul to request proper information in regard to a pending case affecting one of his countrymen.

Such inquiries are usual in the consular intercourse of nations. They are often made by our consuls under express instruction from the Secretary of State.

The Department is perfectly aware that the proceedings of first instance, under the general code of the countries deriving their procedure from the Roman law, are analogous in their nature to the inquest of a grand jury under the common law of Saxon nations, and that precise information in respect to and formulation of the charges against a prisoner are not communicable in the preliminary stages. But this does not preclude a respectful inquiry from a consul as to the general nature of the offense charged or as to the status of a pending case. To make such an inquiry is deemed by this Government to be one of “the regular good offices which the legitimate interests of their compatriots may demand.” (Law of 1859, art. 10, par. 1.) It anticipates a courteous response to such inquires made by its consuls abroad, just as it expects like courteous response by the judicial officers of the United States to the inquiries of foreign consuls in this country.

If the inquiry be not proper, it would seem at least due to ordinary [Page 397] courtesy that the consul should be advised of the inability of the judge to answer and the reason thereof.

This Government has taken this position as to all foreign countries where the case has arisen, and our position has been uniformly recognized as just and proper. It can not yield this ground in our consular intercourse with Mexico without acquiescing in a marked exception to the usage which obtains elsewhere.

You may make known the Department’s views to the Mexican Government.

Respectfully, yours,

John Sherman.