File No. 412.00/58
The Acting Secretary of State to the Ambassador in Mexico (Fletcher)
Sir: The Department acknowledges the receipt of your No. 834 [634] of December 5, 1917,1 with which you forwarded the text and translation of the presidential decree providing for the appointment of a commission to pass upon claims for damages to persons and property growing out of the Mexican revolutions, and of your No. 710 of January 15, 1918, with which was enclosed the text and translation of a presidential decree prescribing regulations for carrying into effect the first-mentioned decree.
Careful consideration has been given by the Department to the provisions of these decrees with a view, if it were found practicable so to do consistently with the best interest of American claimants, of lending all possible and proper assistance to the Mexican Government in its endeavors to adjust the troublesome questions presented by the claims in question, through the successful operation of the proposed plan. As a result of this consideration the Department is constrained to observe that there are certain provisions of the decree first mentioned which do not seem altogether clear. Therefore, it is desired that further light be obtained on the purpose and intent of these provisions, which are mentioned below.
Article 5 of the decree in question provides that the claims commission shall accept only claims for damages caused by revolutionary forces or those recognized as such by the legitimate governments established upon the triumph of the respective revolutions; by the forces of the governments in the performance of their duties and during the struggles against rebels, and those caused by the forces of the so-called Federal Army up to the day of its dissolution. Article 5 reads as follows:
The commission shall accept only such claims as are based:
- I.
- On damages caused by revolutionary forces or recognized as such by the legitimate governments which may have been established in the Republic upon the triumph of the respective revolution.
- II.
- Those caused by the forces of the said governments in the performance of their duties and during the struggle against rebels, and
- III.
- Those caused by the forces of the so-called Federal Army up to the time of its dissolution.
Respecting the first class of claims listed as acceptable by the provisions of said Article 5, it may be said that the language used seems susceptible of construction so as to exclude claims for damages caused by bandits or outlaws, although the Department believes that this construction was not within the intent of the Mexican Government in drafting the decree, especially as the existence and depredations of these bandits were unquestionably largely incidental to the disturbed conditions due to the revolutions and as it is contended by many American claimants that the damages suffered by them in consequence of such depreciations could have been obviated had the Mexican Government furnished the protection which was within its power to supply, and for this as well as other reasons should under the generally accepted rules of international law be repaired at the hands of the Mexican Government.
Furthermore, the language referred to would seem possibly susceptible of the construction that it was intended to cover only damages caused by “revolutionary forces” operating against the authorities which are regarded by the present Government as usurpers and therefore as excluding claims for damages caused by those forces revolting against authorities regarded by the present Government of Mexico as legitimate. This apparently possible construction is not believed to have been contemplated by the Mexican Government, especially as it is alleged by certain American claimants that damages were inflicted upon them by unsuccessful revolutionists, which damages the existing authorities failed to avert, although having the power so to do.
Article 6 of the decree reads as follows:
Those subject to the civil responsibilities referred to in Transitory Article 15 of the Political Constitution of the United Mexican States, promulgated on the 5th of February of the present year, may not benefit by the provisions of this law. In such cases a hearing shall be given to the Department of Gobernación.
The provisions of Article 6 appear to exclude from the benefits of the decree persons who supported the so-called Huerta administration, as well as persons who have supported any attempts at revolution against the present authorities of Mexico, Inasmuch as foreigners residing or owning property in Mexico were, in accordance with the generally accepted rules of international law, entitled with respect to matters within the apparent scope of such authority to deal with persons exercising de facto authority and as foreigners were subjected to measures of compulsion from time to time adopted by such persons in authority, this Government would be pleased to have the Government of Mexico make a more comprehensive statement as to the scope and effect of the provisions of this article, and particularly to be informed as to whether Article 6 is to be understood as excluding from the operation of the decree persons who supported the so-called Huerta administration as well as persons who supported any attempts at revolution against the present authorities of Mexico.
Article 7 of the decree reads as follows:
The right to present claims shall expire within three years from the date of this law. Claims arising from the revolution begun in 1910, which may have been submitted to the consulting commission established by virtue of the law of May 31, 1911, shall be considered as having been presented within the period [Page 803] indicated, and shall be handled by the new commission, the files being taken in their present state, and the proceedings thereon being continued in accordance with the provisions of this law and its regulations.
This article appears to limit the right to present claims to three years from the date of the decree and makes provision for consideration by the commission of claims arising from the revolution of 1910, which were submitted to the claims commission constituted by President Madero and which claims shall be considered as presented within the time limited by the decree under consideration. Regarding these provisions it may be observed that the Department presumes that it was not the intention of the Government of Mexico to exclude from the cognizance of the proposed commission claims arising from the revolution of 1910 which were not presented to the commission created by President Madero, but in order to clear up all possible ambiguity on this point this Government would like to have an authoritative statement thereon.
There are certain other features of the decree which the Government of the United States desires to bring to the attention of the Government of Mexico with a view to a clearer understanding of the whole situation created by the decree. Among such features are the requirements of Article 12, that—
Stock companies organized under the laws of the Republic shall be considered as Mexican, so far as their claims are concerned, although some or all of the stockholders are foreigners.
With respect to this requirement it may be observed that it is the understanding of the Department that many Mexican corporations have been largely or wholly composed of American stockholders. There have been filed with the Department a number of claims for damages made by such corporations or stockholders thereof. It will, therefore, be readily appreciated by the Mexican Government that this Government is under very great pressure to take at least an interest in the equitable treatment of companies with American stockholders, particularly in cases where the stock owned by American citizens comprises a large proportion of the total capital invested. In making this statement it should of course be understood that this Government does not intend to intimate that corporations so constituted will not receive equitable treatment at the hands of the claims commission, but if perchance this should prove to be true in any particular case, this Government desires to have the Mexican Government advised as to its position in respect to the American interests involved.
It is observed that Article 14 of the decree under consideration provides:
The findings of the commission with regard to the claims of foreigners, which may have been objected to by the parties interested in one of the two forms indicated in the preceding article, shall be submitted’ for arbitration to three persons, one of whom shall be appointed by the President of the Republic, another by the diplomatic agent of the country to which the claimant belongs, and the third by the other two selected. Should these be unable to reach a decision, the third shall be appointed by the President of the Republic from among the nationals of some country which has no claims for damages growing out of the revolution. The appointment of the arbitrators shall be made in accordance with the regulations governing this law, but it is to be understood that none of those selected shall have diplomatic or consular character.
In connection with these provisions it may be said, firstly, that the Government of the United States does not doubt the desire and intention of the Mexican Government to establish an impartial tribunal to pass upon the claims of foreigners, but it ventures to suggest, in order to remove all possible criticisms by claimants on the score of the composition of the tribunal, the advisability of averting the possible appointment by Mexican authorities of two out of the three members of the arbitration board. It would seem that this desirable result might be attained in a manner entirely satisfactory to the Government of Mexico by providing that, in the event of a disagreement by the two members of the board in the selection of the third member, the selection be made by the sovereign of a country having no claims against Mexico arising out of the revolutions. This Government, therefore, would be pleased to be informed as to whether the Mexican Government is not able to amend the decree to this end.
Passing to the decree of December 24, 1917, prescribing regulations for carrying into effect the decree providing for the constitution of a claims commission, it may be said that there are various provisions contained in the first-mentioned decree which in the view of the Department are not quite clear and therefore the Government of the United States desires further explanation of them by the Government of Mexico. For example, Article 10, paragraph iv of this decree, relating to powers of attorney given by claimants to persons who shall act for them before the commission, provides as follows:
In cases where the claimant does not handle his case personally, proof must be submitted of the power of attorney of the person handling same, giving his place of residence.
If the claim is for less than 5,000 pesos, proof of legal right shall be presented by means of letter of authority signed by the one granting the power, and ratified before the municipal president of the place where extended; if the claim is for 5,000 pesos or over, proof of legal right shall be presented by means of a power of attorney drawn up before a notary.
It would seem, then, that it is required that these documents be ratified before a Mexican official, and that no provision is made for the authentication of documents of foreign claimants not located in Mexico. Is it not possible to provide some means whereby American claimants may be able to legalize their documents in the United States if necessary?
Article 12 of the decree provides in the case of foreign claimants:
The second clerk referred to in the preceding article shall carry, under the supervision of the Secretary, a special register of the claims of foreigners who may have submitted proofs as such; in the said register shall be noted, grouped according to nationality, the name of the claimant and his legal representative, when there is such, and the amount of the claim; and in a special column shall be noted, at the proper time, a brief extract of the decision of the commission, and a note as to whether the claimant made use of the right granted in Article 13 of the law of November 14, 1917.
This register shall be carried without prejudice to the general claim register referred to in the preceding article.
Is not the reference to the law of November 14 a typographical error and the true reference to the law of November 24, 1917, establishing the commission?
[Page 805]Article 19 of the decree under consideration provides that—
Proofs of any nature may be submitted, but they should always be submitted to the commission in written form, for which reason, in cases of the declarations of witnesses, reports of experts, or others of a similar nature, the same should be submitted, in the nature of voluntary affidavits drawn up before the appropriate judges, sending to the commission a certified copy of the same.
On this point the Department seeks information as to its bearing upon affidavits sworn to outside of Mexico and in this connection desires to urge that provision be made for the acceptance of affidavits sworn to before any official authorized by the laws of the United States to administer oaths.
Articles 20 and 21 of the decree provide for placing the record at the disposition of the “interested party for a period of ten days” after the receipt of the “proofs and information,” at the termination of which period, “the interested party may make a written statement of his rights.” Assuming that by “interested party” is meant the claimant or his representative, attention is called to the fact that the time limitation imposed would, as a rule, preclude action of the kind contemplated, by claimants residing outside of Mexico unless they have a legal representative on the ground to whom the record would be transmitted.
The Department, therefore, desires to be informed as to whether the term “interested party” as used in these articles is intended to include the claimant or his representative, and if it is intended that claimants outside of Mexico must have a representative on the ground. In any event, it would seem that the time limitation should be extended to 30 days, or more, as even if claimants should have representatives on the ground the latter would undoubtedly, in many cases, desire to submit the records to their principals in this country.
Finally, it is noted that Article 25 of the decree provides that in cases of corporations proof must be made of foreign citizenship by “duly registered copy of protocolization documents referred to in Article 24 of the commercial code.” With regard to these provisions the Department would be pleased to be more fully informed as to the exact meaning of the term “duly registered” and as to the provisions of the mentioned article of the commercial code.
You will please bring the foregoing to the attention of the Foreign Office, making it clear that the primary purpose of the Department in seeking the information requested is to be of assistance to the Government of Mexico in its laudable effort to provide for the settlement of the claims in question.
In connection with this instruction, the Department desires you to acquaint it with such information as may be obtainable with regard to the attitude thus far assumed by other foreign governments towards the project of the Government of Mexico which is under discussion.
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