Papers Relating to the Foreign Relations of the United States, 1918
File No. 412.00/85
The Ambassador in Mexico ( Fletcher) to the Secretary of State
Sir: Confirming my telegram No. 1804 of to-day’s date,1 I have the honor to forward herewith a copy and translation of a note received last night from the Mexican Foreign Office, in reply to my note No. 288 of March 29 last, on the subject of the claims commission set up by the Mexican Government by the decree of November 24, 1917.
The reply of the Mexican Government seems, after a hasty glance, to meet the observations contained in the Department’s instruction No. 470 of March 8, embodied in my note to the Foreign Office No. 288 of March 29 last, copy of which I had the honor to forward to the Department in my despatch No. 886 of April 2, with the exception of the selection of the third member of the arbitration board provided for in Article 14 of the decree. There was evidently a mistake made in the Foreign Office in the translation of my note, omitting the words “of two out” (page 8, line 23), but inasmuch as the Mexican Government takes the position that the law of November 24 can now be modified by Congress only, the matter can in all probability be adjusted later if the Department deems it of sufficient moment.
I have [etc.]
The Mexican Acting Secretary of State for Foreign Affairs ( Péres) to the American Ambassador ( Fletcher)
Mr. Ambassador: I have the honor to refer to your excellency’s courteous note No. 288 of March 29 last, in which, under instructions from your Government, you request certain explanations and suggest certain reforms in connection with the law of November 24, 1917, and with the regulations of December 24 of the same year, with regard to the commission on claims for damages arising from the revolution, as well as to notes Nos. 562 of August 27 and 687 of October 21, which the Embassy in your worthy charge addressed to this Department on the same matter.
By instructions of the President of the Republic, I am pleased to furnish your excellency with the explanations requested, and I am pleased, at the same time, to state that the Mexican Government appreciates fully the desire of the American Government to assist it in solving the controversies arising from the claims, and that it reciprocates that spirit of cordiality by facilitating as it does a proper understanding of the legal measures looking to a solution of such controversies.
In the first place, your excellency calls the attention of this Department to the provisions of Article 5 of the said decree, stating that, apparently, there are not included therein the damages caused by bandits or outlaws; but that the Department of State believes that it was not the intention of the Mexican Government to exclude claims for damages caused by bandits or revolting forces, in view of the contention of many American claimants that the damages suffered by them could have been avoided had the Mexican Government afforded the protection which was within its power and ability to supply.
In reply, I beg to state to your excellency that Article 5 of the decree of November 24, 1917, is restrictive and includes only the cases expressly described, for which reason the claims commission could not admit nor decide upon claims for damages caused by bandits; but this does not signify that the Government of Mexico denies to the sufferers the right to present claims, since, in accordance with the general principles accepted by international law, they may do so. In effect, those who suffered damages coming under the latter case may not present them to the claims commission; but they shall have the right to do so through diplomatic channels, and their claims shall be given consideration in the special cases provided for by international law. I believe that this explanation will satisfy your excellency and the Government of the United States.
Your excellency then refers to Article 6, the text of which is as follows:
Art. 6. 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.
Your excellency doubts the extension of the foregoing article, and requests a statement as to its true significance, fearing that it will also be made applicable to Americans resident in the places controlled by the rebels and who found it necessary to obey the measures dictated by them. Transitory Article 15 of the Constitution of 1917 empowers the Executive of the Union to issue the law of civil responsibility applicable to the authors, accomplices, and accessories, implicated in the crimes against constitutional order in the month of February 1913 and against the Constitutionalist Government. The said law of civil responsibility has not as yet been issued; but there can not be included within its scope persons who were not the authors or accomplices of, or accessories to, the crimes referred to in transitory Article 15 above cited. Consequently, only such persons as can be considered to have been the authors or accomplices of, or accessories to, the Huerta coup d’état and those who may have cooperated in a similar manner in any revolutionary attempt against the present authorities of Mexico, shall be excluded from the benefits of the law of indemnifications. Americans who may only have recognized the authority of the usurping administrations and who may have submitted to their compulsory [Page 816] measures, shall enjoy the benefits of the law, and shall have the right to present claims for damages suffered by them.
Article 7 of the decree says:
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 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.
In referring to the foregoing article, your excellency states that the Department of State presumes it was not the intention of the Mexican Government to exclude from the cognizance of the commission the claims arising from the revolution of 1910 which were not presented to the commission created by President Madero. The Department of State is right, since the term of prescription begins as from the date of the law, November 24, 1917, and grants to those who suffered damages and who may have presented their claims to the consultative commission established by the law of May 31, 1911, the privilege of not having to present new claims to the claims commission recently established, but that those already existing shall be considered as having been presented in due time, and shall continue to be handled in accordance with the law of November 24, 1917, and its respective regulations. The sufferers who may not have presented their claims to the commission created in 1911, may do so now to the new commission, within a period of three years beginning from November 24, 1917, in the manner indicated by the law and its regulations.
Your excellency then alludes to Article 14 of the decree, the tenor of which is as follows:
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.
Your excellency suggests, by instructions of your Government, that in case of 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 revolution, and this is based on the expediency of avoiding the possible selection by the Mexican authorities of the three [sic]1 members of the board of arbitration. The President of the Republic would be unable to modify the article mentioned, inasmuch as it forms a part of a law which only the Congress of the Union can amend. On the other hand, no head of a foreign state can have a greater interest than the President of Mexico in the impartiality of the arbitration board and in the justice of its findings, and it is not possible, furthermore, that the same appoint the three arbiters.
Your excellency then passes to the regulations of December 24, 1917, and refers in the first place to the provisions of paragraph iv of Article 10, relative to the powers which claimants should give to their representatives near the commission. Your excellency presumes that the measure stated requires that the respective powers be granted before Mexican officials, since nothing is said regarding documents granted abroad. The presumption of your excellency is unfounded, since the article mentioned establishes a modification in the provisions of civil law beneficial to claimants and to facilitate the granting of powers when the claim does not exceed 5,000 pesos. The validity of powers [Page 817] granted in foreign countries shall be governed by the principles of private international law and by the general provisions of our legislation, in view of the fact that the regulations do not establish any modification nor create any ruling on the subject.
Your excellency then inquires whether there is a typographical error in the mention of the law of November 14, 1917, made in the final part of Article 12 of the regulations. There actually was a typographical error, since the law referred to in Article 12 is that of November 24, 1917.
Referring to Article 19 of the regulations, regarding the evidence which may be submitted to the commission, your excellency states that the Department of State requests it be informed as to the value and force of expert testimony drawn up outside of Mexico, and suggests the acceptance of affidavits sworn to before any official authorized by the laws of the United States to administer oaths. This provision is; not necessary for the reason that documentary proofs originating abroad, which may be presented to the commission, will have the effects prescribed by our laws and the legislation of the United States, in harmony with the principles of private international law.
Article 20 of the regulations states:
Once the proofs and information referred to in the preceding article have been presented and received, the record shall be placed at the disposition of the interested party for a period of ten days, in order that he may make a written statement of his rights.
In referring to the preceding article, your excellency states that the Department of State desires to know if the words “interested party” mean the claimant or his representative, and if the intention of the article is that claimants residing abroad should have a representative in Mexico. It cannot be doubted that the words “interested party” may be applied to the claimant or his representative; and although neither the law nor the regulations provide expressly that claimants shall have a representative in this capital, the article hereinbefore mentioned would seem to indicate the necessity thereof, in view of the fact that the files will be placed at the disposition of the interested party at the office of the commission. The President concurs with the Department of State in believing that the period of ten days prescribed in Article 20 is too short, and is disposed to increase it to 60 days for the convenience of claimants.
Article 25 of the regulations provides that in the case of companies, the foreign nationality thereof shall be evidenced by means of duly registered copies of protocolization documents referred to in Article 24 of the commercial code. In reply to the inquiries made by your excellency in the premises, I am pleased to state that the words “duly registered” mean that the legalized instrument (testimonio) should be recorded in the public registry where charters of corporations in general are always registered. Article 24 of the commercial code says:
Foreign corporations which desire to become established or create sub-offices in the Republic, shall present and record in the registry, besides the legalized instrument of the protocolization of its statutes, contracts and other documents relating to its constitution, the inventory, or last balance sheet, if available, and a certificate showing that they have been established and authorized under the laws of the respective country, issued by the Minister of the Republic accredited thereto, or, in his absence, by the Mexican Consul.
The preceding article states the documents which shall be presented and recorded in the registry. For a better Understanding of the foregoing articles, I beg to transcribe below Article 18 of the commercial code which specifies the offices in charge of the commercial registry:
Article 18. The commercial register shall be kept at the county or district judicial seats wherein the merchant resides, by the offices charged with the public registry of property; in the absence thereof, by the mortgage offices; and in the absence of both, by the judges of first instance.
Trusting that the preceding information, which I have the honor to give to the Embassy in your worthy charge under express instructions from the President of the Republic, will explain the question sufficiently and satisfy your excellency’s Government, I am pleased [etc.]