Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 4, 1882

No. 218.
Mr. Morgan to Mr. Frelinghuysen

Legation of the United States,
Mexico, September 27, 1882. (Received October 12.)

No. 503.]

Sir: Your dispatch No. 298, 24th July, 1882, was duly received.

It related to the position assumed by the Mexican Government, under Mexican legislation, that diplomatic intervention is not admissible on behalf of citizens of the United States unless they have been previously registered at the department for foreign affairs, as foreigners.

I was instructed to make it apparent that the United States cannot recognize the fact of matriculation as controlling the right of a citizen of the United States to ask the intervention of this government (the United States) in case of need.

Your instructions were complied with in a note which I addressed to Señor Mariscal, on the 21st instant, a copy of which I inclose.

In this note I endeavored to show:

1st. That there is nothing in the laws of 16th March, 1861, and 6th December, 1866 (the laws upon which the position of the Mexican Government upon the subject of matriculation is maintained), which precludes diplomatic intervention on behalf of foreigners who have not matriculated in the Mexican department for foreign affairs.

2d. That these laws render inoperative and of no effect guarantees contained in several articles of the Mexican Constitution, and, therefore, are not binding.

3d. That they are in conflict with the laws of nations, and, therefore, not obligatory upon the United States.

I have to thank you for furnishing me with the most important arguments which my note contains. As you will perceive, I made free use of them.

I have received no reply, as yet, from Señor Mariscal, but I have considered it proper to inform you of what I have done.

I am, &c.,

P. H. MORGAN.

[Inclosure in No. 503.]

Mr. Morgan to Señor Mariscal.

Legation of the United States,
Mexico, September 25, 1882.

Sir: Your excellency’s government, in the correspondence which has taken place between the department for foreign affairs and this legation during several years past, has denied the right of diplomatic intervention in behalf of citizens of the United States who are not matriculated at the foreign office; and has also maintained that matriculation has no retroactive effect, that is, where diplomatic intervention is offered on behalf of a citizen of the United States who is matriculated, if the cause for intervention arose anterior to the matriculation, the intervention will not be admitted.

The first part of the proposition I find announced in Señor Avila’s note of my predecessor, Mr. Foster, of the 19th of November, 1878 (case of Emilio Boig), and in your excellency’s note to me of the 12th December, 1881 (case of Walter Coffin), and 4th April, 1882 (case of Shields and Weber), 13th April, 1882 (case of Leonard et als), of the 15th May, 1882 (case of Connelly, Youmans, and Arnold), and of the 16th June, 1882 (case of Thomas Gartrell and wife).

I find authority for the second proposition in your note to me on the 26th of April, 1882, relating to the case of Patrick and Edward Leonard and others, which, as they are familiar to you, it is not necessary I should do more than refer to them.

Your excellency will understand that the cases cited in the correspondence referred to, or those which I may hereafter mention in this note, have not been, nor will they be, mentioned with a view of discussing them at this time. They have their own place and opportunity, and stand upon their own merits. This matriculation question rests upon a higher plane than individual cases. It concerns the right of the Government of the United States to protect its citizens by presenting the facts in their cases, and asking consideration thereof according to the recognized principles of justice and equity. I have referred to them here simply for the purpose of stating what I understand to be the ground which your excellency’s government has assumed with reference to diplomatic intervention in behalf of foreigners, viz: That no diplomatic intervention is admissible on behalf of any foreigner who is not registered as such at the department for foreign affairs; that diplomatic intervention will not be admitted on behalf of a foreigner who is matriculated, if the fact upon which intervention is based occurred before the date of his matriculation.

The first proposition of your excellency’s government rests, as I understand it, on the 10th article of the decree of the 16th of March, 1861, which declares: “Tampoco se admitiza en ninguna de las oficinas de la republica reclamation in gestion alguna de estranjeros, si al hacerla no presentaren el certificado de matricula, del que se tomará razon en el negocio que promuevan.” Which I translate: “Neither shall there be admitted in any offices of the republic any claim or question on the part of foreigners, unless upon making or presenting the same, they present the certificate of matriculation, of which a record shall be made in the papers of the case.

The second is based on the second sentence in article 2 of the decree of the 6th of December, 1866, which declares: “En lo que se refiera al tiempo anterior a la fecha en que se inseriban y obtengan el certificado de matricula, no podrán hacer valor ningunos gestiones bajo el carácter de estranjeros.” Which I translate: “So far as refers to the period previous to the date when they were inscribed and obtained the certificate of matriculation, they shall not enjoy any rights, neither should there be admitted any questions coming from them under the character of foreigners.”

An attentive consideration of these two laws has failed to disclose to me anything in either of their sections which denies to a foreign nation or its diplomatic representative the right to interfere on behalf of any citizen or subject of that nation, in case the party on whose behalf intervention is made has not been matriculated.

They appear to refer exclusively to individuals in their individual capacity. They are silent as to any action accorded or denied to a foreign nation or to its diplomatic representative. It is a familar rule of construction that what is not expressly included in a law is excluded therefrom, and following this rule, as diplomatic intervention is not mentioned in these laws, I may assume that the omission was intentional on the part of the law maker. If this be so, then the omission cannot be supplied by the ministerial officers of government. The position assumed by your excellency’s government, if this interpretation be a correct one, has, therefore, nothing to rest upon.

Should your excellency be of a different opinion, and find in the laws in question ample authority for the ground taken upon the subject before us by your government, then I have to submit that as, under international law, a nation has the right to ask, through its accredited representative, redress for wrongs inflicted upon its citizens or subjects by the illegal acts of the officials of the nation to which he is accredited, it follows that any attempt on the part of a government, in the form of an act of interior legislation, to deprive a nation of this right, and which would, if carried into effect, place the citizens or subjects of other nationalities beyond the protection of their respective governments, is a violation of the law of nations and is consequently null and void.

That the legislation in question does deprive citizens of the United States of the protection of their government I shall proceed to show. A citizen of the United States, residing at Brownsville, Tex., crosses over the Rio Bravo to Matamoras for the purposes of business or pleasure, intending to return to his place of residence the same day. As he steps upon Mexican soil, he is taken possession of by a recruiting sergeant of the Mexican army, and forced into the military service of the country. He appeals to this legation for protection. A request is made by it for his release.

Conforming to the opinion which your excellency’s government has, up to now, held, the answer would he that inasmuch as the person in question had not been matriculated, diplomatic intervention in his behalf would not be admitted. And yet this man would have come into Mexico under the guarantees of the Mexican constitution, which permits, nay invites, free entry into its territory by people of other nationalities, and allows them to circulate therein without a passport or any species of safe-conduct. He would, moreover, have been in the physical impossibility of complying with the requirements of the Mexican law upon the subject of matriculation.

Should application be made to cause him to be matriculated upon a certificate of American citizenship, if the application was granted (as was done in the case of Patrick Leonard and others, above referred to) and intervention was then attempted in his behalf, the reply would be, as it was in Leonard’s case, a simple reference to article 2 of the decree of the 6th December, 1866.

Take another example: An American ship arrives at a Mexican port. Her captain has no intention to remain in Mexico. On the contrary, his interests would require his departure therefrom at as early a date possible. It could scarcely be contended that such a person would need to be matriculated. Should he, while on shore upon business of his ship, be arrested, charged with some technical offense against the revenue, or through the arbitrary action of an official, and should this legation, on being informed of the facts, desire to call your excellency’s attention to the case with the view of obtaining an order for his release, the answer would be that as he was not matriculated diplomatic intervention in his case was not admissible.

Again: The constitution of Mexico (article 16, if I am not mistaken) declares that, except in a case arising flagrante delictu, no person is to be molested in his person, his family, his domicile, papers, or property, except upon a written warrant, issued by a competent authority, in which warrant shall be stated the ground upon which it was issued.

The same instrument (article 17) declares that no man is subject to imprisonment for a purely civil debt.

By the same charter it is declared (article 19) that no imprisonment can exceed three days except by virtue of a judgment in which the cause of detention is stated.

Should either of these contingencies, expressly prohibited by the Mexican constitution, happen to an unmatriculated citizen of the United States, the diplomatic representative of his government, under the doctrine now held by your excellency’s government, would not be conceded the right of calling his attention thereto.

The examples which I have cited are not entirely supposititious ones.

The intervention of this legation has been refused in cases where citizens of the United States have complained of illegal imprisonment, as in the case of Leonard, Shields, and Coffin. Its intervention has been refused, where it has been offered, in cases where the parties had matriculated after the fact, upon which the intervention had been tendered, had occurred (as in the case of Leonard and others). It has been denied in cases where parties not matriculated, or their representatives, have demanded damages against the Mexican Government, although those claims were presented through this legation, acting under instructions from the Department of State (as in the case of Youmans and others).

It has been denied by anticipation, in the case of Thomas Gartrell and wife.

It has been denied, as a right, on behalf of citizens of the United States impressed into the Mexican army, as in the case of Emilio Boig, and Felipe Burnato, and others. In the last two cases cited, your excellency’s government informed this legation that the courts of the country were open for the redress of the wrongs of those parties, and that to them application must be made; and it may be suggested that in this respect foreigners are by the laws of Mexico under the protection of the law officers of the Mexican Government to the same extent that Mexicans are. But, in my opinion at least, when a citizen of the United States suffers a wrong at the hands of the officers of a foreign government in whose territory he happens to be, he has the right to have the matter brought by his minister to the notice of such government for redress, and this refused he has the right to demand protection from his own government; nor could that government refuse it to him. It would, under certain circumstances, be the duty of his government to attempt his protection even though he had made no personal application therefor.

For example: Should it come to the knowledge of the Department of State that a citizen of the United States had been impressed into the Mexican service and that he was not permitted to hold any communication with the representative of his government, it is certain that the Department of State would immediately direct the United States minister here to bring the matter to the notice of your excellency’s government with the view to his discharge. According to the construction placed on the law under consideration, the case could not be examined because the man was not registered as a foreigner.

Your excellency will remember that in the correspondence which took place between this legation and the department for foreign affairs, in the case of Emilio Boig, the position was assumed by your excellency’s government that his American citizenship could not be recognized for the reason that his name did not appear on the register of matriculation. The same position was assumed in the case of Felipe Burnato and others.

In his note to Señor Avila, of the 23d November, 1878, my predecessor said: “It is my duty, however, without loss of time, to enter my protest against the position assumed by your honor that said Boig is not entitled to be recognized as a citizen of the United States because he is not inscribed in the register of matriculation of the foreign office. I have heretofore notified the department of foreign affairs, and now desire to repeat in an earnest manner, that the Mexican Government cannot by any domestic legislation or regulations denationalize American citizens who may be traveling or resident in the country and who have committed no act to forfeit such citizenship.”

And in his note to the same gentleman, of the 30th November, 1878, while acknowledging the discharge of Boig from the army, he felt compelled in reply to the position assumed by Señor Avila, that “while an American citizen in Mexico could not be recognized in that character unless he is inscribed on the register of matriculation in the foreign office, still he is not on that account deprived of his natural and civil rights, for the maintenance of which he can appeal to the courts and other authorities, enjoying the same rights in this respect as Mexican citizens,” to say:

“But your honor seems to forget that Mexican citizens are on proper occasions subject to compulsory military service by their own government, while the treaty of 1831 expressly exempts American citizens from such service in Mexico. If, as in the present case, an American recently arrived, traveling from the frontier towards the capital, and before he has any fixed residence of even a temporary character, and hence no opportunity to be matriculated, is seized and placed in the Mexican army by force, he cannot obtain the protection of the treaty of 1831, but is to obtain the same treatment from the courts and authorities as Mexican citizens. Mexican citizens are subject to forced military service. Hence for all the purposes of his liberty and national rights, an American citizen circumstanced as above, is denationalized by the operation of the laws and regulations of the Mexican Government relating to matriculation. It was against such an unwarrantable claim that I was forced to enter my protest.”

And in a note which I addressed to his honor Señor Fernandez on the 5th November, 1880, in reply to one from him of the 30th October, 1880, both referring to the alleged impressment of certain citizens of the United States into the Mexican army, whose release I had been instructed to ask for, and in which Señor Fernandez had said that the parties on whose behalf I had interposed must seek for relief in the courts of the country, I endeavored to show that his position was untenable and could not, I thought, be acquiesced in by my government, “which is mindful of its obligations towards its citizens, and which owes to them its protection in whatever country they may happen to be.” The argument of my predecessor in the correspondence above quoted from, appears to me unanswerable, and I permit myself to express the conviction that the obligations of my government, as expressed in my note to Señor Fernandez, will never be evaded.

Even if I admit, then, that citizens of the United States who may be impressed into the military service of Mexico would be in the same position before the courts that citizens of Mexico under the same circumstances would be, it follows that this protection would not under all circumstances suffice them, as citizens of Mexico are, under certain circumstances, as has been already stated, liable to enforced military duty, while citizens of the United States, temporarily in Mexico, are not.

If the courts of the country are open to a foreigner placed in such circumstances, as it is claimed they are, I think I am not going too far when I say that a judgment of a court in his favor might turn out to be illusory; for, unless I have been greatly misinformed, it has happened, and that quite recently, that a judgment of a competent tribunal which ordered the discharge of a Mexican citizen from service in the Mexican army, into which service he had, as found by the courts, been illegally impressed, was refused execution by the officer in command of the barracks in which, in the opinion of the court, he was illegally detained. If this can be successfully done against a citizen of Mexico, it cannot be hoped that a citizen of the United States would, under the same circumstances, be more fortunate. And yet, in a case such as this, if the unfortunate man had from accident, or the impossibility of complying with the law, and after he had exhausted in vain the remedies allowed by Mexican law, should apply to the minister of his country for relief, that official would not be listened to, because as the man had not matriculated as a foreigner, diplomatic intervention in his behalf is not admissible. It cannot, it appears to me, be expected that the Government of the United Sates could withhold its protection to one of its citizens who should find himself in so unhappy a position as this. I am not unmindful of the fact that, in both the cases of alleged impressment which has been the subject of correspondence between this legation and the department for foreign affairs, the first party was liberated from personal consideration for my predecessor’s request, and that in respect of the latter four, three had been discharged, and one had escaped from the Mexican army, before your attention had been called to their case.

But the rights of citizens of the United States abroad do not depend upon mere courtesy, or upon the spontaneous act of justice of a government official. By another the courtesy may be omitted, the act of justice go unperformed. What his government has a right to expect in such a case is that justice be rendered to him according to the law of nations, applied for in the mode recognized by the law of nations. Neither have I lost sight of the fact that when the correspondence upon this subject took place the treaty of 1831 was in force, and that that treaty, by denouncement of the Mexican Government, no longer exists. But the reciprocal rights of citizens of a friendly nation, who happen to be in the territory of the other, do not rest entirely upon treaties. In fact, as your excellency knows, treaties do not create the personal rights of men, although they may recognize their existence and define their exercise within certain practical and convenient bounds. In this regard they are protected by the comity of nations; and the right, nay the duty, of their government to ask, and to see to it to the extent of its power, that the rule of the comity of nations be applied to them, in whatever position of danger they may be placed by the wrongful acts of the officers of the government of the country in which they may find themselves, cannot, I think, be seriously questioned; nor, can the denial of the right be justified, on the ground that it is not admitted by a local law.

Again: Mexican law recognizes diplomatic intervention in judicial proceedings, where there has been a denial of justice.

One phase of a denial of justice is the failure of the judge to decide a case which has been submitted to him.

Suppose a citizen of the United States, who resides in the United States and who has never been in Mexico, to be a creditor of a citizen of Mexico. He institutes suit against his debtor in the courts of Mexico. The judge before whom the suit is instituted refuses or neglects to decide, until refusal or neglect becomes a denial of justice. After having exhausted in vain every means within his reach to obtain a decision he appeals for diplomatic intervention. The reply would be that as he is not matriculated diplomatic intervention in his behalf is not to be admitted; and yet the man would never have been where matriculation was necessary or possible to him. The same may be said with reference to a foreign creditor of the Mexican Government. If the judge before whom he has to present his complaint refuses to give him an audience, he is entirely powerless, under the position assumed by your excellency’s government. The admission on the part of the Mexican Government that a person is a citizen of the United States, does not make him a citizen thereof, nor does his failure to matriculate take away his citizenship. This status does not depend, or the right which he has of asking for the protection of his government upon his compliance with the requirements of the legislation of a foreign country, but upon his own. This citizenship follows him into whatever country he may go, and the duty of his government to protect him so long as he does nothing to forfeit his citizenship accompanies him.

This duty his government must discharge, and it could not, if it would, be relieved therefrom by the fact that the municipal law of the country where he happens to be has seen fit to provide under what circumstances he is permitted to appear, as a foreigner, before the authorities of the country. Such a law cannot touch his government for governments are bound only by treaties, or in their absence by the law of nations, and there is nothing in that law which recognizes in one nation the right, by the enactment of a municipal law, to say how, or when, or under what circumstances another government may, or may not, ask justice in behalf of one of its citizens or subjects.

In any discussion arising diplomatically between the United States and any other country with reference to the rights of a citizen of the former, how could that government accept the answer that a citizen was not entitled to its protection, in case of need, simply because he had not complied with a mere internal regulation of the country in which he happened to be?

And here I have to call your excellency’s attention to the fact that if the doctrine asserted by the Mexican Government be admitted, Mexico has possessed herself of the power to prevent diplomatic interference in behalf of foreigners.

For as the right of foreign governments to interpose depends upon the fact of matriculation, and as matriculation is an act of officials of the Mexican Government, to compel the performance of which is not within the competence of a foreign power, it follows that a Mexican official has only to refuse or neglect to perform his duty to make diplomatic intervention in behalf of a foreigner impossible.

The Government of the United States cannot consent to allow its citizens to be placed in such a position. I am not, and as I understand it my government is not, disposed to question the right of Mexico, as a mere convenience to herself, to require of every citizen of the United States who comes to Mexico that he should enroll himself as such, although this should, it appears to me, be qualified by time, place, and circumstances. This is a matter of internal police, the failure to comply with which might entail upon the delinquent himself certain inconveniences and penalties, but it would not make him any the less a citizen of the United States, nor relieve his government from the obligation, the case arising, to afford him its protection, which protection, in the first instance at least, can only be asked for through the diplomatic representative of his country. Because he happens to have neglected to comply with what at most is a mere police regulation, it does not follow that the laws and comity of nations may be violated in his person, and his government be without authority to call attention to such violation according to the methods of the law of nations, viz, through its diplomatic representative.

The general principles of international law, that the rights of an American citizen to claim the protection of his own government while in a foreign land, and the duty of his government to exercise such protection, are reciprocal and are inherent in the allegiance of the citizen under the constitution of his own land; and inasmuch as this reciprocal right on the part of the citizen and duty on the part of his government is not created by the laws of any foreign country, it cannot on the other hand be denied by the municipal law of a foreign state. The status of a foreigner is, under international law, inherent, and neither created nor destroyed by Mexican law.

The general principles of international law, also, insure to foreigners hospitable treatment and kindly usage from the authorities of the country in which they happen to be, and the duty rests upon their government to see that these laws are not violated in their person. The Mexican law in question which has the effect to deprive a citizen of the United States of the right to the protection of his government is, in my judgment, as I have heretofore stated, contrary to the law of nations, and is therefore not obligatory upon it. The question, the discussion of which I have now brought to an end, is one of grave and serious import. It has been thoroughly and seriously considered by my government. It is, happily, one of the few outstanding ones between the two governments, and, in my opinion at least, it is the most important one of them all. For this reason, I have endeavored to show your excellency—

1. That there is nothing in the laws of 16th March, 1861, and of 6th December, 1866, which precludes diplomatic intervention on behalf of foreigners who have not matriculated in the Mexican department for foreign affairs.

2. That these laws render inoperative and of no effect guarantees contained in several articles of the Mexican constitution, and therefore are not obligatory.

3. That they are in conflict with the law of nations, and therefore “not binding upon the United States”; all of which I have done in obedience to the instructions which I have received to “make it apparent that the United States cannot recognize the fact of matriculation as controlling the rights of a citizen of the United States to ask the intervention of this government (the United States) in case of need.”

I take great pleasure in renewing to your excellency the assurances of my distinguished consideration.

P. H. MORGAN.