File No. 812.00/1984.
[Untitled]
Washington, June 7, 1911.
Excellency: I have the honor to acknowledge the receipt of your note of the 27th ultimo, in which you complain of the arrest by the United States authorities at San Diego of the Mexican citizens Dr. Horacio López and son, Manuel González, Martín Solís, José Jurado, Carlos Mendoza, and Juan Nieto, who had embarked for Lower California to take part in the defense of its territory against filibusters. You add that Jesús Páez, Esq., and Manuel Labástida, a merchant, were arrested on the ground of complicity with the other persons mentioned, and request that the matter be investigated and the persons arrested be released.
Although your note bears the date of May 27, it did not reach the Department of State until May 31.
Inasmuch as the Department has been advised by the Attorney General of the United States that prior to the date of the receipt of your note by this Department you had, otherwise than through the regular channels of diplomatic communication, taken up this matter with the Attorney General, who had, at your request thus transmitted, issued appropriate instructions to the proper subordinate officer, an earlier reply to your note appeared to have been rendered unnecessary.
It seems from communications received from the Attorney General that you have been already advised by him to the effect that the United States attorney in southern California has been instructed by the Attorney General to take all possible steps to prevent any act in violation of this Government’s so-called neutrality statutes, and particularly anything in aid of the advertised movement toward the conquest of Lower California.
In this connection, I must, however, take occasion to say that obviously the Government of the United States can scarcely undertake, as you seem to desire, to discriminate between the various more or less independent insurrectionary movements which from your note would seem to exist within the Republic of Mexico. Obviously this Department is not in a position to determine which, if any, of these movements are to be regarded as recognized insurrections and which, if any, are to be regarded as filibusters operating for ends and principles which the Government of Mexico can not approve. It is quite clear that these are questions concerning the Government of Mexico only, and that the Government of the United States, obviously able to entertain neither disfavor, Sympathy, nor interest for any such movements, must treat and consider all upon identic basis.
This being the legal status of the present situation, it is unnecessary to say that the Government of the United States will continue in the future, as in the past, to observe a strict impartiality, at the same time using its utmost endeavors to the end that there shall be no violation either of its obligations under the principles of international law, or of the proper observance of its own so-called “neutrality statutes.”
Again I should call your excellency’s attention to the fact that in international law and under the Federal statutes of this Government [Page 502] a very wide difference exists on the one hand between the passage of men singly and in small groups across our frontier and into another country, or the sailing of individuals or small groups in the ordinary course of events from one of our ports and on the other hand the departure from our territory of organized groups of men avowing the purpose of undertaking belligerent activities in foreign territory.
It would appear from the information furnished by you to the Attorney General that the men of whose arrest you complain were more or less regularly enlisted for the Mexican service within the jurisdiction of the United States—that is, in San Diego, Cal.; and, being so enlisted, constituted an expedition organized within American territory. Whether or not the organization of such an expedition, under the circumstances of this case, constitutes a violation of the so-called “neutrality statutes” of the United States is a question the determination of which is, by the Constitution of the United States, placed in our courts. It is not improbable that such an organization will be found to be not within the statute, and I raise the point merely to indicate to your excellency that prima facie and in absence of a judicial determination there seems to have been reasonable grounds for making the arrest complained of.
In this connection I must again repeat to your excellency that not only is there no rule of international law requiring, and no local Federal statute that would permit, the Federal officials of this Government to prevent the passage into foreign territory of unarmed and unorganized men either singly or in groups; but, on the contrary, it is an express provision of international law that the responsibility of a neutral power is not engaged even in time of recognized Avar by the fact of persons crossing the frontier separately to offer their services to one of the belligerents; and as to the mandates of municipal law, the courts of the United States have repeatedly declared that our neutrality statutes do not forbid one or more individuals singly or in unarmed, unorganized groups from leaving the United States for the purpose of joining in any military operations which are being carried on between other countries or between different parties in the same country.
Regarding the stress which your excellency lays upon the fact that certain of those whom you designate as filibusters are engaging in more or less newspaper propaganda in this country, I have to repeat the statement already made a number of times to your excellency’s predecessor, that the carrying on of a mere propaganda either by writing or speaking does not constitute an offense against the law of nations, nor does it constitute an offense against the local law since freedom of speech and of the press is, under the Constitution of the United States, absolutely assured to those dwelling within its jurisdiction.
In order to bring such inflammatory propaganda within the statutes of the United States, it is necessary that some definite act or acts of which the mind can take cognizance be proved in addition to the mere words written or spoken, which even though indicative of the strongest desire and most determined purpose to do the forbidden act will not constitute the offense.
I need not point out to your excellency that this free speech and freedom of the press are two of the most sacred rights guaranteed [Page 503] by the Constitution of this country; that they are absolutely inviolable rights; and that although it may for a moment appear that such rights should be to a greater or less extent curtailed, a continuous national growth and development of more than a century and a quarter demonstrates beyond the possibility of a doubt that the public intelligence necessary to a firm and permanent stability and progress requires that such rights shall remain inviolate.
Accept, etc.,