You will observe that my note to the under secretary of state in charge of
the department for foreign affairs is nearly a copy of your dispatch.
No reply having been made to my note, I deem it proper to inform you what has
been done in the premises, in order that you may see that your instructions
have been carried out.
[Inclosure in No. 833.]
Mr. Morgan to Mr.
Fernandez.
Legation of the United States,
Mexico, June 2,
1884.
Sir: I have again to call your honor’s
attention to the case of the American schooner Daylight, which, while at
anchor outside of the bar, near Tampico, was, in the night of the 21st
March, 1882, sunk by the Mexican gunboat Independencia.
The details of the case and the demand made by my Government for
compensation to the owners of the Daylight for the sinking of their
vessel by the Mexican gunboat are all set forth in the several notes
which I have had the honor to address to the department over which you
preside, and it is not necessary that I should at the present moment
recapitulate them.
I take up the case where your honor left it in your note of the 23d of
April last.
In that note your honor assumes the position that the owners of the
Daylight can make their direct demand on the Mexican Government before
the Mexican tribunals without permission; that the Mexican Government is
considered as a person, and as such can sue and be sued before the
proper tribunals; and you conclude that should the Government deem it
best that the matter be settled between the two Governments, the United
States minister and the Mexican department of foreign affairs will be
the medium through which the setlement will be made, the department of
war and navy acting as witnesses only of the facts. And your honor adds:
“But it having been a practice constantly sustained by the Government
that a diplomatic course cannot be taken when it interferes in favor of
persons except in case of denial of justice, Señor Mariscal and I had
the honor to notify your excellency that the complainant (or
complainants) must himself appear before the department of war and navy,
regretting that such a course is necessary.” And your honor’s last
conclusion is that “the disaster of the Daylight having occurred in
Mexican waters, the Mexican tribunals are the proper ones to hear this
case as well as any other which treats of the defining of civil or
criminal responsibility, and decide what grade or form of responsibility
must be laid upon the delinquents in the deplorable case.”
This note was transmitted by you to the Department of State at
Washington, and the Secretary of State informs me that “upon a careful
examination of these several propositions of the distinguished secretary
for foreign relations of Mexico, I find myself wholly unable to agree
with him in the conclusion that the doctrine embraced in them can, with
any legal propriety, be considered applicable to the case of the
Daylight.”
In your honor’s note to me of the same date, in respect of the steamer
Sidbury, you say: “This opinion does not merely rest upon the principle
that the courts are called upon to redress injuries which are “suffered
by the inhabitants of the country or those who are transiently therein,
for the purpose for which they are established is to administer
justice.”
[Page 371]
Giving to this proposition the interpretation which it has received from
all writers on public law, and hitherto accepted by all civilized
Governments, that is, that the municipal civil laws of any country can
only be held applicable to, and operative in, the rights, property, and
persons of the citizens of the country and foreigners who may be either
permanently or temporarily residing in the country, the position may be
admitted.
This, however, is all that can be claimed for it, and, as it is believed,
it is all that is claimed for it by the Governments of Christian
nations, and all that is allowed to it by the uniform declarations of
writers on public law. “Considered,” says Halleck, “in an international
point of view, either the thing or the person made the subject of the
jurisdiction must be within the territorial limits so as to subject
either persons or property to its judicial decisions, and every exertion
of authority of its sort beyond its limits is a mere nullity and
incapable of binding such persons or property in any other
tribunal.”
The same doctrine is found stated in different forms of expression in
Phillimore, in Wheaton, in Westlake, and in Woolsey. I am not aware that
it has ever been questioned.
The owners of the Daylight were never residents of Mexico, either
permanently or temporarily. They are not known to have ever been in this
country. The master of the vessel was not a resident of Mexico, either
permanent or temporary, and was never in the country beyond the point at
which his vessel might touch. At the time of the occurrence which gave
rise to the claim, the vessel could scarcely be said with strict
propriety to have been in Mexican waters. She was anchored outside the
bar near the harbor of Tampico, in an exceptionally rough sea, at the
close of a severe storm, which rendered it unsafe for her to attempt to
cross the bar or enter the harbor. To insist that these claimants shall
go from Maine to Tampico to seek redress in the Mexican tribunals for a
grievous wrong suffered at the hands of a high officer of the navy of
that Republic would, in the estimation of my Government, be a practical
denial of justice. The Mexican Government is, in the opinion of my
Government, conceived to be justly responsible to it for the act of that
officer, and consequently the views put forth by your honor in behalf of
your Government cannot be accepted by mine.
I therefore again bring the case to the consideration of your honor, and
I have been instructed to say at the same time that the President of the
United States hopes and expects that so just a claim as this is deemed
to be will receive early consideration, followed by prompt and speedy
adjustment at the hands of the Government of Mexico.
I renew, &c.,
