312.1113 Sustaita, Antonio/34
The Chargé in Mexico (Boal) to the
Secretary of State
No. 4810
Mexico, June 2, 1937.
[Received June
9.]
Sir: I have the honor to refer to the
Department’s instruction 1517 of May 4, 1937, regarding the Antonio
Sustaita case.
Before Ambassador Daniels left for the United States, he called on
Licenciado Beteta, Undersecretary for Foreign Affairs, and left with him
a brief memorandum, of which I enclose a copy. The Ambassador urged upon
Licenciado Beteta the reconsideration of this case with a view to
settlement by indemnification, as has been suggested. He informed the
Undersecretary that a note expressing very definite opinions of our
Government was in preparation. The purpose of this was to afford the
Mexican Government an opportunity to meet us halfway in this matter with
a view to adjustment before a note further extending legal arguments and
fixing positions were delivered. The Ambassador was of the opinion that
there was just a chance that if the note were held in reserve for a few
days and it were indicated to Beteta that instructions of a very
definite character had been received, the latter might see his way clear
to finding some issue in the case which would result in early
indemnification for the family of Sustaita.
The Ambassador suggested that a few days after his departure I should
call upon Beteta with the Embassy’s note and if necessary give it to him
after further discussing the matter. Accordingly, on May 27th I called
on Licenciado Beteta and went over the case with him. It became apparent
from his entirely cordial but uncompromising attitude on the subject
that no progress would be made by withholding the note any longer, since
his position was apparently taken in accordance with what he considered
to be a fixed general policy of the Mexican Government, of which he
approves. I therefore gave him the Embassy’s note 2182 of May 15,
1937,6 a copy of
which is enclosed. I did not feel it advisable to go further into a
discussion of the responsibilities of Governments than is indicated in
the enclosed memorandum of our conversation without more definite
instructions from the Department.
[Page 709]
It would be of interest to the Embassy to receive from the Department an
expression of its views and of our Government’s policy on this general
subject, with the thought that it may be advisable to discuss it again
with Licenciado Beteta in the interest of pending and future cases.
It may be of interest to note that Licenciado Beteta definitely assumed
in his conversation that Foreign Minister Puig had made a request for
indemnity in the case of the Cortes Rubio murder. From the Embassy’s
records, this does not appear to have been the case.
Respectfully yours,
[Enclosure 1]
The American Embassy
to the Mexican Ministry for Foreign
Affairs
The Foreign Office under cover of its Note No. 33615 of April 14,
1937, transmitted to the Embassy of the United States of America a
document setting forth the considerations prompting the Mexican
Government to decline to pay an indemnity to the family of Antonio
Sustaita.
As will be recalled, this was a brutal and cold-blooded murder,
according to reliable reports, and the family of Sustaita was left
in difficult circumstances.
It had been hoped by the Government of the United States that the
sense of fairness and justice of the Mexican Government would be
satisfied with nothing less than the prompt payment of a suitable
indemnity for the wife and children of the deceased. In this
relation, attention is invited to the payment by the Government of
the United States to the Government of Mexico of an indemnity for
the killing in 1931 of Manuel Gómez and Emilio Cortes Rubio, without
its being necessary for the Government of Mexico to present a formal
claim.
A formal note,7
dealing with other phases of the Sustaita case, including its legal
aspects, is being prepared for transmittal to the Government of
Mexico.
[Enclosure 2]
Memorandum by the Chargé in Mexico (Boal)
Pursuant to arrangements made with the Ambassador before his
departure, I called today upon Licenciado Beteta to discuss the
Sustaita case with him. I took with me the Ambassador’s note 2182
[Page 710]
of May 12 [15], 1937, and a copy of his memorandum of
May 14th, which the Ambassador has already left with Mr. Beteta. I
told Beteta that pursuant to the Department’s instructions we had
prepared a note regarding the Sustaita case in answer to their note
of April 14 (33615). I said we had hopes that the Mexican Government
would see its way clear to adjusting this case before actual legal
arguments were entered into on both sides, and it was with this hope
that I brought the note personally, with the thought that he would
perceive some way to settle the case by payment of a suitable
indemnity to Sustaita’s family as had been done in the case of the
murder of Cortes Rubio and his companion.
Licenciado Beteta said he did not see what could be done. In his
opinion, Puig had made a great mistake when he asked for indemnity
for the murder of Cortes Rubio, thereby perhaps giving the
impression that the Mexican Government subscribed to the theory of
governmental financial responsibility for murders on national
territory. In the case of Cortes Rubio, he said, the matter was a
little different because the murder had been committed by the
police, whereas in the Sustaita case the conflict had definitely
occurred between private parties. He said he was in no way
attempting to mitigate the failure of justice in the State of
Tamaulipas to impose an adequate sentence on Sustaita’s murderer.
His Government would continue to seek to have the murderer
adequately punished. However, he pointed out, the punishment came as
the result of the application of State laws and the Federal
Government had no right to interfere in this but could only suggest
and exert influence. It was not in a position to take strictly legal
steps to bring about the punishment. He said he could not subscribe
to the theory set forth in our communications that failure of
adequate punishment created a right to indemnity. The two, he said,
were separate. Indemnity should be sought by civil action against
the person bringing about the damage. It was impossible, he said,
that his Government should be made financially responsible for every
murder which occurred in Mexico. If the Government should recognize
financial responsibility for the death of a foreigner, why not also
for a Mexican?
I remarked that this did not seem to coincide with the attitude taken
in adjusting claims, and Licenciado Beteta said that this was
because the claims were for a definite period when revolutionary
conditions prevailed. The Sustaita murder, however, had occurred
under conditions which might be considered to be normal.
I said that personally I thought the Government’s authority and
police power in the country constituted a sort of insurance enjoyed
alike by nationals and by foreigners when they came into the
country.
[Page 711]
The foreigner
could not contribute to the maintenance of this insurance because he
had no voice in the creation of the Government, as a national had. A
foreigner coming into Mexico came in the belief that this insurance
was adequate to prevent wilful harm being done to him, since the
Government’s punishment for such harm was calculated to be
sufficient to discourage it. When the Government—and by that term I
included the Government of States as created under the Constitution
and laws of Mexico, as well as the Federal Government—failed to
supply adequate punishment, it materially reduced the insurance
against harm to foreigners. The man came into Mexico on the theory
that the laws would be applied to protect his life through
punishment of murder, and lost his life because such protection was
so ineffective as to be held lightly. Through lack of adequate
punishment, it seemed to me, he was the victim of a current
condition for which the Government of the country was definitely
responsible. Responsibility presumably entails financial
compensation to the relatives of the deceased.
Licenciado Beteta said that while he would not disagree with me as to
the logic of this, as a practical matter it was not possible for his
Government to provide compensations wherever there had been
inadequate punishment. What he had said regarding the difference
between State and Federal jurisdictions should explain this. I said
that in that case there remained only one course to us, which was to
present a claim, as indicated in our note. This Beteta said his
Government would of course consider when it was received.
