File No. 812.113/221.
The Acting Secretary of State to the Mexican Ambassador.
Washington, March 8, 1912.
Excellency: I have the honor to acknowledge the receipt of your excellency’s telegram of the 5th instant, in which, in connection with your excellency’s memorandum of February 281 and my informal reply thereto of February 29, regarding the introduction of arms and munitions of war into the Mexican port of Ciudad Juarez, Chihuahua, you state that your Government does not refer to contraband of war but wishes only, in view of the fact that rebels are not belligerents, that the introduction through the port of El Paso of arms and munitions of war be prevented, since their introduction would involve a violation of the neutrality statutes of the United States.
In reply I have the honor to inform your excellency that notwithstanding the fact that the Government of the United States entertains the most friendly regard for the Government of Mexico, and is actuated in the present situation by a sincere desire to fulfill every obligation resting upon it by the utmost demands of justice, it is not able, after a very careful consideration of the matter, to take the same view regarding the introduction of arms and ammunition into Ciudad Juarez as, it may be inferred, is held by your excellency’s Government. The Government of the United States has the sincerest desire and intention of enforcing the laws relating to such transactions not only with the utmost impartiality, but with the greatest rigor, and to that end it has taken, is now taking, and will continue to take every legal available means to see that its duty in the premises is fully met, but your excellency will, of course, appreciate that it would be most unwise and unsafe, as well as repugnant to morality, for this Government or its agents to attempt to take any action which was not warranted by law.
[Page 741]In this connection I am constrained to call to your attention the obvious fact that since there is now no recognized state of belligerency in Mexico the rules and laws governing warfare and the conduct of neutrals are not involved. In other words, under the present situation, so far as the commerce of Mexico with other countries is concerned, the status is one of peace and no interdiction of any kind exists against commerce in any form outside the jurisdiction of Mexico. If any commerce now actually carried on is contrary to the laws of Mexico, as now existing and in force, it seems quite obvious that the Government of Mexico must itself enforce such laws within its own jurisdiction. But even if there were now a state of recognized belligerency, I beg to call to your excellency’s attention the fact that commercial traffic in arms and ammunition would be in no wise prohibited. This is shown by the provisions of The Hague convention “Respecting the Rights and Duties of Neutral Powers and Persons in case of War on Land,” which provides in article 7 that—
A neutral power is not called upon to prevent the export or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or a fleet.
An earlier article provides that—
Corps of combatants can not be formed nor recruiting agencies opened on the territory of a neutral power to assist the belligerents. (Art. 4.)
But, as a still later article stipulates—
The responsibility of a neutral power is not engaged by the fact of persons crossing the frontier separately to offer their services to one of the belligerents. (Art. 6.)
Your excellency will thus observe that even if a state of war existed the acts concerning which representations are made would not be contrary to the rules of international law, and, as your excellency is aware, it is the well-known practice of merchants of neutral countries to furnish munitions of war to one or both of contesting belligerents.
The situation is somewhat different, however, with reference to the so-called neutrality statutes which have been enacted by this Government, which, going beyond the provisions of international law, as set forth in the above-quoted extracts of the convention, do make illegal certain acts specified in the statutes, even when no state of belligerency exists, such acts being directed against the established government of a country with which this Government is at peace. But, as your excellency will at once recognize, and as has been heretofore declared by this Department, the duties of neutrality under the law of nations can not be either expanded or contracted by national legislation. The United States, for instance, has here in excessive caution required from its citizens duties more stringent than those imposed by the law of nations; but those statutes, while they may make offenders penally liable in this country, do not themselves put either these persons or this Government under any extraterritorial obligation. Our own statutes bind only our own Government and citizens and those within our jurisdiction. If they impose on us a larger duty than is imposed upon us by international law, they do not correspondingly enlarge our duties to foreign nations. Since, therefore, these statutes only qualify as offenses certain specified [Page 742] transactions which would not otherwise have such character, and, therefore, since under these circumstances only those acts are bad which are really prohibited, it is evidently necessary that the act complained of should clearly fall within the statutes in order that it may be regarded as illegal.
Your excellency will observe that these so-called neutrality statutes do not, any more than the general laws of neutrality, prohibit the mere commercial exportation of arms and ammunition, and, that being true, the Executive is, under them, powerless, however much it might in any given case wish to do otherwise, legally to prevent this traffic so long as it remains purely commercial and is unconnected with any other act prohibited by the statutes.
It will therefore be quite clear that, under the principles of international law, as above indicated, as well as under the so-called neutrality statutes of this country, the mere commercial sale of supplies in El Paso to Mexicans, whether insurrectos or supporters of the Government, and their simple delivery across the border, can not be looked upon as a violation of international law or of the so-called neutrality statutes. This Government can not but admit that the possession of a border port like Ciudad Juarez by insurrecto forces gives the insurrectos a great advantage; but the duties and rights of this Government and of persons within its jurisdiction to carry on legitimate business are in nowise changed.
I therefore, have the honor to inform your excellency that unless guns and ammunition and any other merchandise are sent to Ciudad Juarez under circumstances showing that their transportation is within the inhibitions of the law and the statutes above referred to, the Executive has no option but to allow them to pass into Mexican territory as the subject of legitimate commerce.
Accept [etc.]
- Not printed.↩