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

No. 4970

Sir: In confirmation of the Embassy’s telegram No. 19, February 9, 8 p.m.,5 I have the honor to forward herewith a copy and translation of Mr. Pani’s informal note, dated February 9th, in reply to the Embassy’s informal communication of the sixth instant.6 A copy and translation of the enclosure referred to in Mr. Pani’s note is also attached.5

Special attention is invited to the final statement of Mr. Pani in relation to Article 2 of the proposed Treaty of Amity and Commerce, namely, “but I refrain from dwelling upon these again, since you have already informed me that the Government of the United States will not insist upon this point.” Early this morning, I arranged for an interview with Mr. Pani and pointed out to him that his statement, as above quoted, was entirely erroneous. I stated that not only had I never made a statement to that effect but also that I had no reason to believe that my Government would not insist upon the point in question. Mr. Pani stated that he had gathered the impression that the Department would not insist on this Article. He said that the entire text in its present form had already been telegraphed to Washington and suggested that I write him in regard to the error and that the correction could be made in that manner. This I have done, and a copy of my informal note of to-day in regard to the correction is enclosed herewith.5 A copy of Mr. Pani’s correction will be promptly forwarded to the Department.5

I have [etc.]

George T. Summerlin

The Mexican Secretary of State for Foreign Affairs (Pani) to the American Chargé (Summerlin)

My Dear Mr. Summerlin: With reference to your informal communication of the 6th instant, relative to the conventions on claims which our Governments propose to make and the Treaty of Amity [Page 642] and Commerce submitted by the Government of the United States of America to the Mexican Government through the medium of yourself, I take pleasure in replying to you, likewise informally, as follows:

The Mexican Government, as I have expressed to you on other occasions, is disposed to sign immediately the conventions on claims the drafts of which it submitted to the Government of the United States as a result of the general invitation which this Government extended to the governments of all countries whose nationals have claims pending against Mexico. With the signing of convention number one, upon the Mexican Government’s being implicitly recognized and diplomatic relations being resumed, concurrently all the difficulties emanating from the present revolution would be eliminated. With the signing of convention number two the difficulties of the past which still persist and which might impede the friendly rapprochement of the two peoples would disappear. And thus the field being cleared of obstacles, past and present, the Government of Mexico would be enabled to enter into a discussion of the Treaty of Amity and Commerce, if such a treaty should serve as a factor in strengthening the future bonds between the two countries. But, as the Department of State, through you, observes:

The Government of the United States is not disposed to sign the conventions in reference until it shall have the assurance that the rights acquired by American citizens prior to the governance of the Constitution of 1917 are adequately safeguarded; and
Article I of the proposed Treaty of Amity and Commerce submitted to General Obregón on May 27, 1921, was formulated solely with this object.

I have to say to you regarding the first point that the desire of the Government of the United States, quite explicable doubtless, with regard to obtaining assurances that the rights acquired by American citizens prior to the governance of the Constitution of 1917 shall be properly safeguarded, is, in the judgment of the Government of Mexico, altogether satisfied in a practical and concrete manner, despite the absence of agreements or treaties, by the mere effects of the policy adopted since the present Government of Mexico was inaugurated. If, as this Government understands, the aims of the White House are, in essence, to obtain, in Mexico, a state of affairs favorable, legitimate, and equitable, to the development of American interests established here, or which may be, and thereby obtain for them the fullest measure of security, then the policy of guarantees, respect, and encouragement for all foreign interests, not solely for American interests, put in practice voluntarily and effectively by this Government from the time of its establishment, meets the proposals [Page 643] previously made, and is sufficient to inspire confidence regarding the present Government of Mexico and the intentions of its people.

Regarding the second point: The spirit which inspires article I of the proposed Treaty of Amity and Commerce has not passed unnoted by the President of the Republic, nor by this Chancellery. But from the beginning the President judged that the said article was in reality unnecessary, for reasons expressed in the preceding paragraph, just as he now believes that the article in question must be deemed even more unnecessary by a mere comparison of the present state of the Mexican Republic—from the time when the results of the policy delineated above, which policy has been continued to this date without interruption, have begun to be visible—with the state of affairs which prevailed previously, and if one likewise takes into consideration the importance given to the attitude of this Government with respect to the interests of foreigners by the circumstance that this is not merely a simple promise, but a pledge sanctioned by incontrovertible acts. Moreover, the President judged the wording of said article inacceptable because it contained stipulations which in some respects are in direct conflict with the constitutional precepts of Mexico and in others in indirect conflict, inasmuch as, at least if the Executive accepted them, it would cause him to invade the sphere of action of the legislative and judicial powers and disrupt the entire system of government as established by the Constitution.

Notwithstanding the foregoing, and since such are the desires of the Department of State, I shall itemize forthwith in an entirely personal way the principal objections which prevent the Government of Mexico from accepting some of the stipulations contained in the proposed Treaty of Amity and Commerce.

The first paragraph of article I says that “The citizens of each of the High Contracting Parties shall have liberty to … own or lease and occupy houses, manufactories, warehouses and shops … upon the same terms as native citizens.” Now, section I of article 27 of the Constitution provides that only Mexicans by birth or naturalization have the right to acquire ownership (dominio) in lands, waters and their appurtenances in the Republic of Mexico. Therefore, the equality of treatment which article I of the proposed treaty would establish for Americans cannot be conceded. It is true that the same Constitution, in section I of article 27, before mentioned, says that the State may concede the right to acquire immovable property to foreigners, but this it does with certain requirements which are not required of Mexicans.

It is not too much to say that the Government of the Republic is animated by a really friendly spirit toward all foreigners, and to this date a case has not arisen where a single one of them has [Page 644] encountered difficulties in the Department of Foreign Relations in fulfilling the necessary requirements for acquiring landed property, provided this property be not located in the prohibited zone (a zone of 100 kilometers along the frontiers and of 50 kilometers along the coast). Furthermore, as there were many foreigners in the country who possessed, prior to the promulgation of the Constitution of 1917, landed properties in the prohibited zones, the Executive has issued a decree, through the Department of Agriculture and Fomento, by virtue whereof the status quo of these properties is maintained, as long as the legislative power does not enact the law regulating the application of the principles of constitutional article 27.

Paragraph 6 [5] of article I provides that: “Property rights of whatever nature, heretofore or hereafter acquired by citizens of either country within the territories of the other, shall under no circumstances be subjected to confiscation, under constitutional provisions, legislation or Executive decrees or otherwise.” Generally speaking, this stipulation does no more than formulate the universal principle of respect for acquired rights, wherewith the Government of Mexico could do nothing else than be in accord; but it contains a limitation which could not be included in an international treaty, by providing that confiscation—even if the Constitution decreed it—may not be carried into effect. This Government believes that such a constitution could not be adopted, but even in the event that such a constitution should be adopted, since it would be the supreme law of the nation, it would have to be respected above treaties, inasmuch as the latter could not have greater force than the Constitution itself, and the Government of the United States knows this perfectly, for it has had to decide several cases of treaties at variance with the Constitution, and it has always decided that the Constitution was supreme. This statement is not based upon our own theories, but upon those of international authorities of many countries, among which might be cited the American, Moore, held to be an authority on the subject throughout the civilized world. I attach, accordingly, a supplement8 which contains pertinent quotations taken from various authors and incorporated by the aforesaid Moore in his notable work International Law Digest.

Paragraph 7 [6] of article I of the treaty seeks to include a consequence of the principle established above and, in this sense and unalterably, stipulates that neither the Constitution of 1917 nor the decree of January 6, 1915, to which the Constitution refers, shall have retroactive effect, and that, therefore, all rights which have been acquired by Americans prior to the governance of the Constitution of 1917 shall be respected, especially those which have been acquired [Page 645] in the subsoil in accordance with the Mining Law of 1884. Upon this question of the nonretroactive effect of article 27, the President of the Republic has already stated his opinion in a clear manner that all rights acquired legitimately must be respected, and he has supported this opinion by repeated acts of his Government. But even though the legislative power has already eloquently manifested the same opinion, until the organic law of constitutional article 27 shall be promulgated, the signature of the President of the Republic placed on an international treaty which would fix interpretations of said article would be equivalent to an undue invasion of the exclusive sphere of the legislative power, since, although a constitutional text establishes a principle, its particular effects may only be determined by the organic law which regulates it, and this has still to be enacted by the Congress of the Union.

In this respect, that is, as to the inexpediency of signing an international treaty which should include the clause under discussion, the attitude of the Executive Power of Mexico cannot be modified, and also it cannot be modified because the Supreme Court of Justice of the Nation has already rendered its decision which accepts the principle of nonretroactivity of article 27, whence it is to be expected that all the cases pending before this same tribunal will be decided according to the same principle.

Article 2 of the projected treaty refers to the religious liberty of the citizens of each of the contracting parties in the territory of the other, and it is desired that citizens of the United States, in Mexico, shall have the same rights as citizens of Mexico, in the United States. On another occasion I presented to you the legal reasons which preclude the Mexican Government from accepting this stipulation, but I refrain from dwelling upon these again, since you have already informed me that the Government of the United States will not insist upon this point.

The foregoing are the principal objections of legal character which the Government of Mexico would raise to signing the proposed treaty; and regarding the contents of the clauses to which these objections refer, Mexico would desire that another arrangement be made more compatible with the laws. All the other articles of the treaty in question could be accepted with slight variations, and the omission of those which refer to points embraced in the projects for the Mixed Claims Commissions, which are already in the possession of the American Chancellery.

I sincerely hope that the Department of State will appreciate the force of these observations in the same cordial spirit in which they are made, as well as the natural just scruples of the President of the Republic for the dignity of the country, in obtaining recognition for his Government on the basis of previous pledges; and [Page 646] that, in view of all this, the American Government will accept these observations and will respect his scruples. This being the case, the signing of convention number 1, to which I made reference at the beginning of this note, would signify implicitly the recognition of the Government of Mexico, and, diplomatic relations between the two Governments being thus resumed, the signing of convention number 2 could be proceeded with, and the designation of the respective Ambassadors, through the medium of whom the details of the Treaty of Amity and Commerce which the American Chancellery desires would be studied and the treaty definitely formulated.

I remain [etc.]

A. J. Pani
  1. Not printed.
  2. See telegram no. 14, Feb. 4, to the Chargé in Mexico, p. 640.
  3. Not printed.
  4. Not printed.
  5. Not printed.
  6. File translation revised.
  7. Not printed.