Papers Relating to the Foreign Relations of the United States, 1919, Volume II
The Consul at Nogales ( Dyer ) to the Secretary of State
[Received September 27.]
Sir: I have the honor to enclose herewith the answer of the State Government to my communication of August 14, 1919, transmitting the protest of the Department of State against the new Agrarian Law of the State of Sonora.
Inasmuch as this is an important communication, I have had a copy made and carefully compared, and I am enclosing the original, one compared copy of the same, and a rough translation made in this office.
I have [etc.]
The Governor of Sonora ( De la Huerta ) to the American Consul at Nogales ( Dyer )
Replying to your note of the 15th [14th] ultimo, in which you say that under instructions from your Government you permit yourself to call the attention of the Government in my charge to the defects and unconstitutionality (referring to Mexico’s Magna Charta) of the Agrarian Law of this State, passed by the State Congress on the 23d of last June, I wish to advise you as follows:
The points which you touch upon in your note on the subject are expressed as follows:
- That the Law is obscure and ambiguous.
- That it is contrary to article 117 of the General Constitution of the Republic.
- That in case the bonds to which the Law refers are not paid, through negligence, recourse will be had to diplomatic methods.
- That it violates article 27 of the General Constitution, which provides that the value of the property must be fixed according to judicial determination.
- That it also violates article 14 of the same Constitution, which prescribes that no person shall be deprived of his life, liberty and property except by due process of law and before a competent tribunal.
- That the law being confiscatory, protest is made against the execution of its provisions with respect to American citizens affected by it, who will have recourse to amparo in the case indicated.
- Finally, you notify this Government that in case absolute justice is denied to such citizens (that is to say, if the law be applied to lands possessed by Americans), the Government of the United States will be compelled to take up the matter on their behalf with the Government of Mexico through the medium of an international reparation adjustment.
Given the nature of the said note and the terms in which it is couched, the Government under my direction considers it pertinent and necessary to inform you, first of all, that the State Government is not competent to enter upon any discussions of this character with representatives of foreign governments, inasmuch as, according to the fundamental law of the nation, cognizance of these matters is the exclusive prerogative of the President of the Republic.
Having made this reservation, simply as a courtesy to you and in consideration of the friendship and good relations which bind together the Mexican Nation and the United States, without establishing precedents and solely for this occasion, I will permit myself to give you some explanation of the justice and legality of each and every one of the points concerning which you have entered protest.
First point.—You affirm that the Agrarian Law in force in this Federative Entity suffers from obscurity and ambiguity as to several of its dispositions, but you failed to indicate precisely which of those provisions were obscure and ambiguous. On this account and in consideration of the fact that, in the premises, the executive under my direction holds a view radically different from yours, I must confine my explanations solely to those points particularly and definitely indicated by you. You say that the Agrarian Law does not provide for the compensation that ought to be given to the owners of lands that are expropriated by the State, but it is enough to read article 38 of the said law to see that “the value of the expropriated property shall be paid by the State Government with bonds of the agrarian debt, which shall be amortized in the time and in the form that the law on that subject provides.” It is necessary, then, to wait until the law to which article 38 refers is enacted in order to be able to judge accurately regarding the matter of compensation. That those bonds can be issued is a matter which is dealt with in the next paragraph.
Second point.—Although you do not indicate which one of the sections of article 117 of the Federal Constitution is the one in conflict with the plan laid down for paying those whose lands may be expropriated, it is clear that you meant to refer to VIII, which says textually:—” The States may not in any case: …12 issue bonds of the public debt …12 or contract obligations in favor of foreign corporations or individuals, requiring the issuance of certificates or bonds payable to the bearer or transferable by endorsement.” Moreover, the Consul has not noticed that article 27 of the same [Page 628] General Constitution which bears precisely on the point of dividing or breaking up the great estates expressly orders that the proprietors “shall be bound to receive bonds of a special issue to guarantee the payment for the expropriated properties,” the Congress of the Union, with that object, having to issue a law authorizing the States to create an agrarian debt.
Therefore, there is no conflict between the provisions of the Agrarian Law and article 117 of the Constitution, since the said fundamental charter makes that exception to the prohibitions that it imposes on the states in a general manner.
Third point.—That in case of negligence in the payment of the bonds, American citizens would be compelled to resort to diplomatic channels.
Leaving aside the improper threat that is made against the Government under my charge without any necessity and in consequence of no violation, because no measures are yet in effect for execution of the pending Law, that is, for the creation of the agrarian debt to which article 38 refers, you will permit me to say to you that foreigners, according to the laws and the principles of juridical science, will not have any rights other than resort to local measures, the same as nationals; and they could resort to diplomatic channels only when they had exhausted all legal recourse in the country and if the government were not applying the law to them in the same manner as to its nationals and to most favored foreigners, in accordance with the terms of the treaty made with the United States, and finally, if the foreigner has not renounced the right to appeal to his government, as wisely provided by our Constitutional Law in making certain concessions of grace to foreigners, such as acquiring real estate in national territory. (Article 27 of the Constitution of 1917.)
Fourth point.—That it violates article 27 of the General Constitution, which prescribes that the value of the property is to be fixed by judicial determination. This is another error into which your note falls, as I take the liberty of making clear. The question is whether judicial determination is involved in the procedure of expropriation of the land or lands which are to be divided in accordance with the Agrarian Law of the State. Article 6 of the same ordains: “The procedure of expropriation shall be carried out in accordance with the provisions of the law on the subject.” Further, the Law of Expropriation of the State of October 27, 1906, directs: “Art. 8. The declaration of public utility having been made, the record shall be referred to the Judge of First Instance in whose jurisdiction is located the properties expropriated, or whom the expropriator designates, if they should be in different districts.” The other articles refer to the method of fixing the price of the expropriated property, a matter which the judge will settle finally. The procedure, then, is judicial, being in conformity with the requirement in the same article 27 of the General Constitution:—“The laws of the Federation and of the States, in their respective jurisdictions, will determine the cases in which the occupation of private property will be of public utility; and in accordance with said laws the administrative authority will make suitable declaration. The price that will be fixed as compensation for the property expropriated shall be based on the sum entered as its fiscal value in the offices of the tax assessors [Page 629] or collectors, whether this value was declared by the owner or only tacitly accepted by him through payment of his taxes on such basis, increasing it by ten per cent. The increase in value which the property in question may have acquired through improvements made subsequent to the date of appraisal, will be the only matter remaining subject to expert judgment and judicial determination. This same procedure will be observed with respect to objects whose value is not recorded in the revenue offices.” This general arrangement is entirely in harmony with the provisions of article 42 of the Agrarian Law, which says: “When the division is made by the Government, the value of each hectare shall be that fixed or accepted in the offices of the tax assessors or collectors, augmented by ten per cent, plus the value of the improvements and the proportional expenses of the division. The value of the improvements shall be fixed by appraisers, one named by the proprietor, another by the grantee and a third by the Government in case of disagreement.” Furthermore, the same article 27 expressly lays down the following precepts: “During the next constitutional period, the Congress of the Union and the State Legislatures, in their respective jurisdictions, shall enact laws for the carrying out of the division of the large properties, in conformity with the following rules:
- —In each state and territory there shall be determined the maximum area of land which may be owned by one individual or one legally organized corporation.
- —The excess above the area determined shall be subdivided by the proprietor in the time fixed by the local laws; and the subdivisions shall be put on sale on such conditions as the respective governments approve, in accordance with the same laws.
- —If the owner refuses to make the subdivision, it shall be carried out by the local government, by means of expropriation.
- —The value of the subdivisions shall be paid in annual instalments which will amortize the principal and interest within a period of not less than twenty years, during which the persons acquiring them may not alienate them. The rate of interest shall not exceed five per cent per annum.
- —The proprietor shall be bound to receive bonds of a special debt to guarantee the payment for the expropriated property. With this end in view, the Congress of the Union shall, at an early date, enact a law authorizing the States to create an agrarian debt.
- —The local laws shall guarantee the family patrimony, deciding what property shall constitute the same, on the basis that it shall be inalienable and shall not be subject to attachment or encumbrance of any kind.”
There can be nothing unconstitutional, then, either in the pro-cedure or in the manner in which the payments are to be made for the expropriated lands, and as the law is applied equally to all, citizens and foreigners, the latter have no right to appeal to their governments, because they are under necessity of obeying and respecting the laws of the country which extends them hospitality.[Page 630]
Fifth point.—That it also violates article 14 of the same Constitution which provides that no person shall be deprived of his life or of his liberty and property except by due process of law and before a competent tribunal.
In view of the foregoing fourth point there remains not the least doubt that in no respect does the Agrarian Law violate the passage cited from article 14 to which you allude. In fact, in depriving individuals of their properties through the procedure of subdivision, the expropriation is decreed primarily on the ground of public utility; this declaration being made, it goes to the competent judge (his competence being defined by the law on the subject) for the determination of the price. All this is in entire conformity with the postulates of that beneficent article of our Constitution, which you believe it violates, possibly because you did not make a deeper study of the harmony of both laws.
Sixth point.—The conclusion that the said Agrarian Law may be confiscatory or of a confiscatory nature is entirely a question pertaining to those affected by it, who will do well, if they so decide, to seek amparo, which is the legal recourse that the inhabitants of the Republic have for protecting themselves from abuses of the laws or from the authorities that attack or presume to trample under foot their individual privileges. It is right that they should so proceed, that the Supreme Court of Justice of the nation, the one supreme qualified judge of the constitutionality or unconstitutionality of an act, may duly pronounce the decision reached in each concrete case that is brought to its knowledge.
Seventh point.—The Government in my charge feels that the American Consul has gone so far as to make a threat at a time when, as already has been said, the Law has not been applied and the supplementary legislation (creation of the agrarian debt, regulations, etc.) that would present an impending situation warranting the tone of his note has not been formulated, all the more so when a more detailed study of the Agrarian Law in question might have changed his excellent and enlightened judgment, for the Government believes that the foregoing explanations are clear and entirely sustained by justice.
In concluding this extended note, I permit myself to add that, with respect to such delicate matters as causing a country to alter the legislation that it desires to apply within its own jurisdiction, the authorities of other nations have no right to intervene, as you yourself may see, Mr. Consul, in the authorities on international law citation of whose literal texts is not allowed by the limitations or the character of this note, which is merely explanatory and intended to efface prejudices and misunderstandings, rendering more cordial the relations between the foreigners residing in this State, or holding property in it, and the authorities of the same, who, in enacting laws such as the one under discussion, have not sought to attack the rights of foreigners nor to make their situation difficult, but rather to follow ideals of justice for the sake of which both nationals and foreigners have to sacrifice part of their interests to the general welfare.[Page 631]
It appears highly opportune for me to remind you that President Wilson himself, in his pronouncements concerning Mexico, during the contest between the Villista and Carrancista parties, following Villa’s defection, expressly declared that the United States would support the party that would give the more guarantees of carrying out the ideals of the Mexican Revolution, and one of those ideals, one of the most far-reaching, is that relating to the division of the large estates which convert the immense majority of our farmers into serfs worse off than those of feudal times.
On the other hand, I have already shown that cognizance of these matters is a function of the Federal Government, which will know how to find a legal and dignified solution of conflicts of this nature that may arise.
Acknowledging your note under reference, and hoping that you will see in the present reply a sincere desire for accommodation, I take pleasure [etc.]
Constitution and Reforms.