312.115 Ol 41/15a: Telegram
The Secretary of State to the Ambassador in Mexico (Sheffield)
31. Referring to previous correspondence in the case of Howard T. Oliver and the Oliver Trading Company, the Department desires you, if you perceive no objection, to present in person to the Foreign Minister as soon as possible an aide-mémoire in the following terms:87
“On October 25, 1922, during the period when the régime functioning in Mexico was not recognized as a government by the Government of the United States, the Mexican Embassy at Washington addressed a communication to the Department of State88 requesting the latter to take appropriate steps to bring about the discontinuance of proceedings instituted in the courts of the State of New York against Mexico by the Oliver Trading Company, an American corporation, in connection with which proceedings the property in New York of the Mexican Consulate General and Financial Agency and of the International Railways of Mexico had been subjected to attachment.
In the interest of international comity the Department of State acceded to the request of the Mexican Embassy and asked the appropriate authorities of the State of New York to consider whether the official property of the Consulate General might not promptly be released from the attachment in question. The Department’s representations were successful and in a communication dated November 1, 1922, the Mexican Embassy at Washington was informally advised that the attachment of the property of the Consulate had been vacated.89
[Page 261]The proceedings instituted in the State courts were subsequently removed to the Federal courts, and the Department of State, still mindful of the request of the Mexican Embassy, took steps to have the following statement made before the court when the case came up for hearing on motion:
‘The Government of the United States has at present no official relations with the administration now functioning in Mexico. This fact, however, does not affect the recognition of the Mexican State itself, which for years has been recognized by the United States as an “international person” as that term is understood in international practice. The existing situation simply is that there is no official intercourse between the two States’
The case was not decided by the Federal District Court until the fall of 1923 after the Government of the United States had recognized the Government of Mexico. The court then dismissed the action on the ground that the Government of Mexico as the Government of a sovereign State was entitled to immunity from suit in the courts of the United States. The case was then appealed to and dismissed by the Circuit Court of Appeals, and a petition was then filed with the Supreme Court of the United States for a writ of certiorari.
On January 31, 1925, the Mexican Embassy again brought the matter to the attention of the Department,90 stating that the petition for a writ of certiorari was to be submitted to the court on February 2, and asking the Department to intervene to the extent of requesting the Attorney General to make a statement to the court. In accordance with this request the Department suggested to the Attorney General that an appropriate statement be made to the court by a representative of the Department of Justice as a matter of comity between the Government of the United States and the Government of Mexico. Such a statement was made in the form of a suggestion and the petition for a writ of certiorari was denied.
While the Department of State was happy in the interests of international comity to take the action outlined above on behalf of Mexico, it naturally assumed that such action would be without prejudice to the rights of the Oliver Trading Company or of Mr. Oliver, the sole stockholder thereof, and that the company or Mr. Oliver would be free to pursue an appropriate remedy either in the courts of Mexico or through direct negotiation with the Executive Department of the Mexican Government. Accordingly the litigation brought in the courts of the United States against the Government of Mexico having been determined by the refusal of the Supreme Court of the United States to issue a writ of certiorari, the Department instructed the American Chargé at Mexico City to bring to the attention of the appropriate authorities of the Mexican Government the fact that there appeared still to be outstanding against Mr. Oliver an expulsion order issued by the Mexican Government in October, 1922, when the litigation was pending, and to ascertain whether in the existing circumstances the order might not be revoked so that Mr. Oliver could proceed to Mexico and discuss his business affairs directly with the interested Mexican authorities. The Department suggested as an alternative to the revocation of the order of expulsion the designation by the Mexican Government of a representative in [Page 262] the United States with whom Mr. Oliver might take up his case. In this connection it might be added that the expulsion decree appears to have been signed by President Obregon on October 30, 1922, under the provisions of Article 33 of the Mexican Constitution which clothes the Executive with the ‘exclusive right to expel from the Republic forthwith, and without judicial process, any foreigner whose presence he may deem inexpedient.’ It also appears to have been issued because Mr. Oliver had instituted legal proceedings in the courts of New York for the purpose of obtaining an adjudication of his case against Mexico. To the Department’s surprise the foregoing suggestions when brought to the attention of the Mexican Foreign Office resulted in not only a refusal to withdraw the order of expulsion, but a refusal to designate any representative of the Mexican Government with whom Mr. Oliver might negotiate in the United States. The Department brought the matter again to the attention of the Mexican Government and was again met with a refusal to revoke the order of expulsion, and a refusal to designate a special representative with whom Mr. Oliver might confer in the United States. The Foreign Office suggested informally, however, that Mr. Oliver might treat with the official representative of Mexico in the United States or designate a representative to deal on his behalf with the Mexican Government in Mexico City. This information was communicated to Mr. Oliver who forthwith addressed a letter to the Mexican Ambassador at Washington inquiring with what official he should open negotiations looking toward a settlement of his affairs with the National Railways of Mexico (Government Administration). To this communication the Ambassador replied that any right of action should be exercised in Mexico before the competent courts.
As matters now stand Mr. Oliver cannot have his case tried on its merits before the courts of the United States, he cannot appear in person in connection with any litigation instituted in the courts of Mexico by reason of the expulsion order still in force, he cannot negotiate with a special representative of the Government of Mexico in the United States because the Mexican Government declines to designate such a representative, and he cannot negotiate with the diplomatic representatives of the Government of Mexico in the United States because when approached the latter refer him to the Mexican courts.
The Department of State does not desire to pass upon the merits of the controversy. It believes, however, that under the present conditions Mr. Oliver is suffering from an injustice which deprives him of a proper hearing and which, in the circumstances the Mexican Government should be the first to desire to correct. The Department ventures, therefore, to express the hope that the case of the Oliver Trading Company may be considered by the Mexican Government with a view to arriving at some adjustment of the case.”
When you present aide-mémoire to Foreign Minister please support same with your oral representations in same sense; also request Foreign Minister to inform you of his decision as soon as possible. Cable Department a summary of interview with Foreign Minister.
- Aide-mémoire not paraphrased.↩
- Not printed; but see the Department’s letter of Oct. 27, 1922, to the Governor of the State of New York, Foreign Relations, 1922, vol. ii, p. 709.↩
- Not printed.↩
- Memorandum not printed.↩