File No. 812.011/11a
The Secretary of State to Mr. Parker, representing American interests
Washington, January 22, 1917, 5 p.m.
621. The Department’s attention has been called to certain proposed provisions relating to rights of foreigners in Mexico which provisions it appears, the convention in session at Querétaro has decided to incorporate into the Mexican Constitution.
The first paragraph of Article 27, relating to the expropriation of private property appears to confer on the executive the power to determine, without any legislative authority and without any judicial recourse being afforded to property owners to protect their rights, the necessity or utility of property the condemnation of which to him may seem advisable. The vesting of such extensive powers in the executive appears objectionable. It would seem desirable that at least the question as to whether property is taken for a public purpose should always be subject to judicial review.
The seventh paragraph of the same article provides that civil and commercial companies may not own and operate for themselves properties of an area greater than that absolutely necessary for the accomplishment of the purposes of their creation, and that the executive shall in every case determine the appropriate area. The objection to a provision so capable of capricious application appears evident. The precise conditions under which the power vested in the executive may be exercised are not defined. No safeguards are afforded [Page 948] against unwise or arbitrary executive acts. The fact that purchases would seemingly in all cases be subject to executive sanction would alone appear to show the impossibility of any proper practicable application of such a provision. While it is hardly to be supposed that it is intended to give this provision retroactive effect, should this be done such action would apparently result in confiscation of property rights vested under existing laws and treaty stipulations, since no provision is made for compensation for property taken and since property would evidently not under such conditions be taken in the proper exercise of the right of expropriation.
Article 28, providing that there shall be no exemption from taxation would apparently, if improperly given a retroactive effect, impair the obligation of contracts of many foreign corporations now operating under agreements, concluded either with the Mexican Federal Government or with Mexican states, which provide for certain exemptions from taxation for periods that have not yet expired.
By the first and second paragraphs of Article 33 it is provided that the executive may expel from the country forthwith and without judicial process any foreigners whose presence he may deem inadvisable, and that there shall be no appeal from his decree. These provisions apparently confer authority on the executive to expel foreigners without regard for the general practice of nations which confines the exercise of the power of expulsion to cases in which just cause for the exercise of this harsh measure are clearly shown. The express power of the executive to expel, for reasons satisfactory to himself, aliens who have been permitted to enter Mexico, would seemingly place all aliens in that country in a position of insecurity and would appear to be at variance with the apparently growing tendency of nations to restrict the exercise of this right with a view to affording safeguards against the expulsion of aliens in an arbitrary manner inconsistent with the proper protection of their just rights, and with a view to the observance of the rules of international comity.
The third paragraph of Article 33 provides that foreigners may not acquire real estate unless they shall declare their intention to waive their citizenship and the protection of their governments in all matters appertaining to the property. The Government of the United States has in the past made clear, as doubtless have other nations, that it cannot concede the right of Mexico to limit, by its municipal law, this Government’s right of intervention to protect the rights of its citizens residing or sojourning in that country, nor concede that waivers such as those referred to in this provision can annul the relations of citizens to their own government and extinguish the obligation of this Government to protect its citizens in Mexico. In so far as the proposed provision would hamper the transfer to another foreigner of foreign owned lands, it would apparently in a sense be confiscatory of rights enjoyed by the foreign owner from the time of his acquisition of the property.
You will immediately bring the foregoing to the attention of General Carranza and say that the above-mentioned provisions seem to indicate a proposed policy toward foreigners which is fraught with possible grave consequences affecting the commercial and the political relations of Mexico with other nations. You will point out that the Government of the United States cannot, of course, acquiesce in [Page 949] any direct or indirect confiscation of foreign-owned properties in Mexico. You will further say that the Government of the United States, with a view to avoiding the possibility of the disturbance of hitherto pleasant relations existing between the two Governments, and with a view to avoiding future serious difficulties with any government organized under the proposed constitution, earnestly desires General Carranza to give these matters his careful personal consideration.