125.61383/202: Telegram

The Chargé in Mexico (Summerlin) to the Secretary of State

3311. The following is a translation of Foreign Office note dated today referred to in my telegram 3310, November 26, 2 p.m.62

“Mr. Chargé d’Affaires. I am instructed by the President of the Republic to reply in the form in which I am doing to note number 1533 [1535] of November 20 which you addressed to the Mexican Government under instructions from the Department of State of the United States.

“I must not conceal from you that the attention of the Mexican Government has been called strongly to the fact that no legal foundation, no principle or precedent of international law, and not even a reason were invoked in demanding the immediate liberty of Mr. Jenkins who, as you know, is at the present moment placed under the authority of a judge in the city of Puebla. The Mexican Government does not see what foundation there may be for such a demand; it believes that it may not be solely the strength of the country which makes it, inasmuch as the United States has characterized itself by its desire expressed on various occasions that right and justice should be the motto of its diplomacy and respect for weak countries the basis of its international relations on the continent; and prefers to attribute the terms of the note to which I reply to an imperfect knowledge of our penal laws.

“The imprisonment of Mr. Jenkins is neither unjustified nor arbitrary as your note asserts. He himself having rendered and signed contradictory testimonies concerning the abduction of which he was the victim, the judge has had sufficient cause for supposing him to be responsible for the crime of rendering false judicial testimony, and this has merited his imprisonment. However this imprisonment does not in itself signify that Mr. Jenkins is culpable as this can only be established by a final judgment.

“You are aware that in Mexican penal procedure there are three classes of imprisonment: the preventive, when it is suspected that a person is criminally responsible in a crime; the formal, when there is sufficient evidence against the accused in the opinion of the judge to suppose him to be responsible for the deed; and ordinary imprisonment or the one imposed by a final sentence as a punishment properly so-called for the duly proven crime and culpability of the accused. The first two classes of imprisonment are not legally penalties but simply restrictions on the liberty of the accused as a means of investigating the truth. The sentence may also establish the innocence of the accused. Mr. Jenkins suffered preventive detention and 72 hours later formal imprisonment. This is the reason for his having been re-arrested, and this is the circumstance which appears to be considered by the Government of the United States as a persecution or as a series of molestations being unjustifiably inflicted on the Consul.

[Page 585]

“During the course of the prosecution the accused may at any time request and obtain his liberty under bail. Mexican law is very liberal in granting it, the request and deposit of the amount fixed by the judge sufficing. Mr. Jenkins, by refusing to exercise this right notwithstanding that he has been invited repeatedly to do so and that the judge has fixed as bond the sum of 1,000 pesos, cannot strictly speaking call himself a victim of molestations which he voluntarily inflicts upon himself, and furthermore he is being held in prison with all the attentions and comforts compatible with his condition.

“He being therefore subject to a prosecution which is being conducted in accordance with the dictates of law under the authority of a judge whose acts are not secret but are under the constant vigilance of public opinion which is interested in having the truth become known in this matter, the Mexican Government finds itself unable to grant the demand for liberty contained in the note under reply and it is supported by strong reasons founded on the law of nations and considerations of a Constitutional nature. Under the former it considers that no government may make a diplomatic reclamation in favor of one of its subjects in foreign countries excepting in the cases of denial of justice or of a notoriously unjust sentence which is also under international law a case of denial of justice, and that the practice has invariably been followed of waiting till the tribunals handling a case concerning a foreigner have pronounced judgment, which I repeat, should it be notoriously unjust would be the sole basis on which a representation could be made. As regards the Constitutional point of view our political Constitution63 establishes as a fundamental principle the separation of the attributes of the executive power and those of the judicial department, and therefore the Executive is not empowered to interfere in matters pertaining to the latter. Likewise the autonomy of the states is guaranteed by our Charta, and by virtue of the federative structure of the Mexican Republic the federal power cannot intervene in matters which, like that of Mr. [Jenkins], corresponds properly and exclusively to the authorities of the State of Puebla. For this reason the Executive could not issue orders to the judge handling the case to have Mr. Jenkins placed at liberty since that official would with reason refuse to obey the same in case it were given and the Executive would thus violate the first principle of government with which he has always endeavored to comply, that is to say, respect of, and securing respect for, the laws of the country. Very well. This conduct, in the opinion of the Mexican Government, cannot affect unfavorably the friendly relations which happily exist between Mexico and the United States, above all as the case is one of so simple a nature in which by complying with so small a requirement, Mr. Jenkins would be placed at liberty, since the equal application to nationals and foreigners alike of the laws of each of the two countries can never be the cause of friction between those countries.

“In the United States, on some occasions, Mexican consuls have suffered imprisonment for deeds coming under the scope of the laws and of the authorities of the country; and the Mexican Government, [Page 586] even though in its opinion such imprisonment was unjustified, has never permitted itself to make the slightest suggestion looking to the non-application in each case of the laws of the United States, inasmuch as its practice has invariably been to respect the laws of other countries and it does not claim that Mexicans abroad should make of their Mexican citizenship a title for exceptions and privileges.

“Neither in the United States nor in Mexico may any citizen under prosecution be liberated by an order emanating from the Executive, and it would be strange that in Mexico an American citizen should have greater rights than those he has in his own country or greater than those which a Mexican citizen has in Mexico. Neither can the Government of Mexico concede to American citizens greater rights than those enjoyed in the United States by Mexicans.

“The Government of the United States appears to act under the conviction that Mr. Jenkins is absolutely innocent notwithstanding the fact that this matter is in the course of investigation. The Mexican Government, without attempting to claim that Mr. Jenkins is culpable, limits itself to submitting the foregoing considerations to the United States trusting that the Department of State will postpone its judgment until the tribunals have pronounced their sentence, being assured that the officials of the Mexican Government have no intentions of causing molestations or persecutions to Mr. Jenkins but solely a sincere desire to act with justice.

“This opportunity [etc.]

(Signed) H. Medina”