File No. 412, 11/39.
The Acting Secretary of State to the American Ambassador .
Washington , November 7, 1911 .
Sir: The Department has received your No. 1026 of the 25th ultimo,1 transmitting correspondence with the law firm of Coldwell & Sweeny, of El Paso, Texas, in regard to the presentation of the claims of several of their clients.
The Department approves the action taken by you in this case, in advising Messrs. Coldwell & Sweeny that no American rights will be sacrificed or imperiled by the presentation of claims for the action of the Consultative Claims Commission, as the United States has in no case waived the rights of any American citizen to present his claims through the diplomatic channels should the findings of the Commission not be in accordance with the principles of justice and international law.
The Department desires at the same time to express a word of caution with reference to the general matters treated of in your letter of October 23, 1911, to Messrs. Coldwell & Sweeny. You will appreciate the necessity of saying nothing to any claimant which could be [Page 947] in any way susceptible of an interpretation that this Government had espoused any particular claim, since the facts are that the Department has not yet attempted to pass upon either the merits or the legal sufficiency of any of the claims which have heretofore been presented to it, these questions being left to consideration when, if ever, it becomes necessary to consider the matter of presenting the claims diplomatically.
In connection with American claims for losses at the hands of revolutionists, you should have also clearly in mind the principle which has been acted upon by our own Government, namely, that where an armed insurrection has gone beyond the control of the parent government, the general rule is that such government is not responsible for damages done to foreigners by the insurgents. (See Moore’s Digest, vol. vi, p. 949 et seq.) The Department is under the apprehension that this principle may be found to operate unfavorably towards a great many American claims if they are to be pressed diplomatically or to be taken before an international claims commission. It is for this reason that it has somewhat urged that American claimants should present their claims to the Consultative Claims Commission, in the hope that they might receive something from the Commission, even though their claims were not such as under the principles of international law would require a compensatory payment by the Mexican Government.
Another matter which is brought out by the letter of Messrs. Coldwell & Sweeny and which you should carefully note in your correspondence upon claims, is the apparent effort to place upon this Department and upon the Embassy the onus of advising American claimants regarding the steps which they should take for the settlement of their claims, as also of advising them of the tribunals which Mexico may establish for the hearing and determining of such claims. This, of course, is an erroneous view. Having in mind the principle which requires that (save as to certain rather well-defined exceptions not, it is believed, applicable to the present situation) a claimant must, before invoking diplomatic assistance, exhaust his local remedies, it is quite obviously necessary for American claimants themselves to make sure they have met this requirement and they, and not the Department or the Embassy, must in the first instance become fully advised regarding the tribunals to which they should resort. Neither the Department nor the Embassy can be charged with any such responsibility.
I am [etc.]
- Not printed.↩