"I believe it unnecessary to discuss these questions considering the object of this study, and therefore I will confine myself to remarking-because it is very important— that with the difference of that which is accepted by the Institute of International Law and by several authorities and legislations, our penal code requires, not that the offense be sufficient to disturb the tranquillity of itself, but that it shall be disturbed in fact and in an effective manner; and with respect to reciprocity, that it is not necessary that analogous cases shall have occurred with our vessels in foreign ports, but that for the guidance of the conduct of our tribunals it will be sufficient to observe that of those of the other countries in accordance with their legislation and jurisprudence. "An omission may be noticed in article 189 of our penal code the one which relates to the third of the exceptions generally accepted and which determines the competency of the local authorities when their protection is asked. But the latter part of this article supplies this omission, as, prescribing the observance of reciprocity and the said exception being accepted by most of the civilized countries-by all of them it may be said-it is indubitable that the Mexican authorities have jurisdiction in cases in which their aid is solicited to suppress or punish offenses committed on board of foreign merchant vessels at anchor in any of our ports. "Of several decisions of our courts which have applied article 189 of our penal code, I consider it proper to cite the very notable one pronounced on February 25, 1876, by the supreme court of the nation in the matter of the homicide of the seaman Augusto Durand, committed by Capt. Eugenio Antinori, on board the French barque Anemone, at anchor at Isla del Carmen, State of Campeche. In said decision, cited with encomiums by Calvo, Fiore, and other authors, it was decided, in accord with the luminous petition of the public attorney, that the Mexican authorities were not competent to take cognizance of that offense because the tranquillity of the port had not been disturbed; because the slayer and the deceased were of the crew, and because the aid of the said authorities had not been solicited. (El Faro, March 14 and 15, 1876.) "Lately, in a case very similar to the one cited by the ambassador of the United States in one of his notes, that of the difficulty which occurred between an officer and several of the crew on board of the American steamer San Juan, at anchor at Acapulco, the district judge of Guerrero, on the same grounds, in decision of July 2 of the current year, which was affirmed by the third circuit court, decided that he was not competent. "It seems to be unnecessary to remark that the doctrine based on article 189 of the penal code, which has just been cited, and which relates to acts which constitute true offenses, is entirely applicable, for a majority of reasons, to simple difficulties or disputes, of whatever kind they may be, arising between the captain, the officers, and the crews of foreign merchant vessels lying in our ports. "And although this principle has been implicitly recognized in all our treaties of commerce and navigation, as it gives consuls the right to reestablish order on the vessels of their country and to ask the aid of the local authorities in the same, the said principle has been expressly and terminantly stipulated in our treaties with Sweden and Norway of July 29, 1885, and Salvador of April 20, 1893, which say, in Articles VII and XV, respectively: * * * "It is also stipulated that the merchant vessels of the contracting parties shall be subject, respectively, to the jurisdiction of the one in whose ports, roadsteads, bays, inlets, or territorial waters they may be, for crimes, offenses, or acts committed on board by a person not belonging to the crew, or against one who also does not belong to it, or by persons of the crew among themselves, provided that in the latter case the tranquillity of the port shall have been disturbed. 666 'Merchant vessels of either of the two contracting nations from the time of their entrance into the territorial waters of the other, shall be subject to the local jurisdiction in all that does not concern their interior discipline or offenses committed among their crews which may not disturb the tranquillity of the port in which they may be.' From all that has been set forth it may be deduced: "First. That in accordance with our legislation and our jurisprudence, and as a general rule, our courts are not competent to take cognizance of offenses committed on board of foreign vessels at anchor in our ports. "Second. That they have jurisdiction to take cognizance of them when the intervention of our authorities is solicited, when the tranquillity of the port is disturbed, or when the offense is committed by or against a person who does not belong to the crew. "Third. That the foregoing rules are applicable, with greater reason, to the differences or disputes between the captain and the crew, or between the latter among themselves, and which do not constitute true crimes. "The ambassador of the United States, in order to indicate clearly the idea of the international stipulation which he proposes, and as forms upon which it should be based, presents se eral articles of an equal number of treaties celebrated by his country with foreign nations. All of them contain, substantially, the same agreements, and for that reason I will limit myself to copying, in continuation, the one celebrated with Germany, selected because, in my opinion, it expresses with greater clearness the fundamental idea upon which all of them are based: "ART. XIII. Consuls-general, consuls, vice-consuls or consular agents shall have exclusive charge of the internal order of the merchant vessels of their nation and shall have the exclusive power to take cognizance of and to determine differences of every kind which may arise, either at sea or in ports, between captains, officers, and crews, and especially in reference to wages and the execution of mutual contracts. Neither any court or authority shall, on any pretext, interfere in these differences except in cases where the differences on board ship are of a nature to disturb the peace and public order in port, or on shore, or when persons other than the officers and crew of the vessel are parties to the disturbance. "Except as aforesaid, the local authorities shall confine themselves to the rendering of efficient aid to the consuls when they may ask it in order to arrest and hold all persons whose names are borne on the ship's articles, and whom they may deem it necessary to detain. Those persons shall be arrested at the sole request of the consuls, addressed in writing to the local authorities and supported by an official extract from the register of the ship of the list of the crew, and shall be held, during the whole time of their stay in the port, at the disposal of the consuls. Their release shall be granted only at the request of the consuls, made in writing. "The expenses of the arrest and detention of those persons shall be paid by the consuls.' "Hence it may be readily seen that the rules which the representative of the United States proposes to adopt by means of an international agreement are precisely the same as those which Mexico has always observed in this matter, following the example of the majority of civilized nations. "The celebration of the said treaty does not appear, therefore, to be necessary, as, without it, and simply by virtue of our laws, the American merchant marine enjoys in our ports all the facilities and exemptions which the ambassador of the United States asks for it with such laudable zeal." The foregoing report having been approved by this department, it hopes, in view of the terms in which it is conceived, that your excellency, as well as the Department of State of the United States, will be of the same opinion, that the celebration of such convention is not necessary, as international practice is sufficient to secure the object which your excellency's Government seeks to obtain. I have the pleasure to return to your excellency the book which came with the said notes, and to again express, etc., IGNO. MARISCAL. Mr. Hay to Mr. Clayton. No. 803.] DEPARTMENT OF STATE, Washington, November 17, 1902. SIR: I have to acknowledge the receipt of your dispatch No. 1614 of the 24th ultimo on the subject of jurisdiction by consular officers of the United States in Mexico over disputes arising at sea or in Mexican ports among masters, officers, and crews of American vessels. With your dispatch is transmitted a copy of a note from the Mexican minister for foreign affairs, in which he expresses the opinion that a new treaty is not necessary, as without it, and simply by virtue of Mexican laws, the American merchant marine enjoys in Mexican ports all the facilities and exemptions asked for in your note to him of August 14 last. In reply, I inclose herewith for your information a copy of the Department's circular instruction of the 11th instant to our consuls in Mexico, defining their rights and powers in the premises. I am, etc., JOHN HAY. [Inclosure.] Department of State to United States consuls in Mexico. CIRCULAR. DEPARTMENT OF STATE, Washington, November 11, 1902. SIR: As the result of recent diplomatic correspondence in regard to the question of the right of the Mexican judicial authorities to assume jurisdiction over disputes between masters, officers, and crews of merchant vessels in Mexican ports, I now have to inform you that the Department is in receipt of a dispatch, No. 1614, of October 24, 1902, from the ambassador of the United States at Mexico City, transmitting a note from the secretary for foreign affairs of Mexico, in which he declares for the Mexican Government the following: First. That in accordance with Mexican legislation and jurisprudence, and as a general rule, the courts of Mexico are not bound to take cognizance of offenses committed on board foreign vessels in Mexican ports. Second. That these courts have jurisdiction to take cognizance of such offenses when the intervention of the Mexican authorities is solicited, when the tranquillity of the port is disturbed, or when the offense is committed by or against a person who does not belong to the crew. Third. The foregoing rules are applicable with greater reason to the differences or disputes between captain and crew or between the latter among themselves and which do not constitute true crimes. For your information, as explaining and elucidating these rules, I inclose herewith a copy of an extract from the note of the secretary for foreign affairs. I am, cte., HERBERT H. D. PEIRCE, DENIALS OF JUSTICE TO UNITED STATES CITIZENS TO BE REPORTED TO EMBASSY BY CONSULAR OFFICIALS. Mr. Clayton to Mr. Hay. No. 1485.] EMBASSY OF THE UNITED STATES, SIR: I contemplate, if such course meets with the approval of the Department, addressing communications to all United States consular officers in Mexico, over whom I have, by virtue of my office, supervisory jurisdiction of the scope set forth in paragraph 101, article 7, United States Consular Regulations of 1896, requesting them to report to me promptly and directly all cases of denial of justice or invasion of the personal or property rights of any American citizen within their respective jurisdictions, not including, however, such cases as have received prompt remedial action by the local authorities upon the representations of such consular officers, said reports to be accompanied by such information as may, in each case, have been brought to the attention of or ascertained by the officer so reporting. As I understand it, I have no right to make such requests of consular officers over whom a consul-general has supervisory jurisdiction. Under paragraph 8, article 1, of said Consular Regulations, the consulgeneral at Mexico is not charged with any supervisory powers, and has no consulates or commercial agencies subordinate to him. Paragraph 12, of the same article, designates the consulates over which the consul-general at Nuevo Laredo (now Monterey) has supervisory jurisdiction. I suppose, although I have no official knowledge of the fact, that after this consulate-general was removed to Monterey, it was given supervisory jurisdiction over the consulate at Nuevo Laredo. In that case the consul-general at Monterey would have supervisory jurisdiction over the following consulates: Chihuahua, Durango, Matamoros, Nogales, Paso del Norte (Ciudad Juarez), Saltillo, Tampico, Piedras Negras (Ciudad Porfirio Diaz), and Nuevo Laredo; and I understand that over all other consulates and commercial agencies in Mexico I have supervisory jurisdiction, and have a right to communicate with them direct, and expect direct replies; and that over the consulates-general at Mexico and Monterey I have supervisory jurisdiction of the scope above referred to. In my contemplated letter to the consuls, of course, where they have consular agencies under their jurisdictions, I shall request them to ask said agents to report to them the same information as that requested by me of their principal consular officers, said information to be transmitted to me by the superior officers. My reasons for adopting this contemplated course are, first, a desire to obtain knowledge of cases of denials of justice or invaded rights which otherwise I might not obtain, so that I can take such diplomatic action in each case as the facts may justify; and, second, because instances have occurred of this character within the districts of consular officers over whom I have supervisory jurisdiction that have not been reported to me. Whether the Department approves of my proposed course or not, I request that it will inform me whether my understanding as to the consular officers over whom I have supervisory jurisdiction is correct. I have, etc., POWELL CLAYTON. No. 762.] Mr. Adee to Mr. Clayton. DEPARTMENT OF STATE, SIR: I have to acknowledge the receipt of your No. 1485 of the 26th ultimo, reporting your intention of addressing communications to all United States consular officers over whom you have supervisory jurisdiction, requesting them to report to you promptly and directly all cases of denial of justice or invasion of the rights of American citizens within their respective jurisdictions. In reply I have to say that your understanding as to consular officers over whom you have supervisory jurisdiction is correct. The course you propose taking, as shown by your dispatch, is approved. I am, etc., ALVEY A. ADEE, Mr. Clayton to Mr. Hay. No. 1555.] EMBASSY OF THE UNITED STATES, SIR: Referring to my dispatch No. 1485, of July 26 last, and to Department's instruction No. 762, of the 18th instant, relating to consular officers over whom I have supervisory jurisdiction, and the propriety of my requesting them to report to me promptly and directly all cases of denial of justice or invasion of the personal or property rights of American citizens within their respective jurisdictions, I have the honor to transmit herewith copies of communications addressed by me to the consuls-general at Mexico City and Monterey, and to the consul at Vera Cruz upon the subject. Communications similar to that sent to the consul at Vera Cruz were also sent to the other consular officers under my supervisory jurisdiction. Whatever difference may exist between the aforesaid communications and the course which I proposed taking as stated in my dispatch above referred to I hope will meet with the approval of the Department. I have, etc., POWELL CLAYTON. [Inclosure.] Mr. Clayton to United States consular officials in Mexico. EMBASSY OF THE UNITED STATES, SIR: For the purpose of procuring prompt information at this embassy of all cases of denial of justice or invasion of the personal or property rights of any American citizen within the jurisdiction of your consulate-general (consulate), you are respectfully requested to report to this embassy, as soon as practicable, all such cases as may come to your knowledge, either directly or through the consular officers over whom you have jurisdiction, together with statements of such facts relating thereto as you may be able to gather from the sources at your command. The foregoing, however, is not applicable to such cases as may be undergoing fair and reasonably expeditious investigation by the proper judicial authorities, or to cases where the injured citizen has neglected to seek the judicial remedies accorded by the laws of Mexico. Upon complaint being made in such latter cases, it might be well to notify the complainant that before he can receive the intervention of his Government he should seek and exhaust said judicial remedies. Please communicate the above information to the subordinate consular officers within your jurisdiction with appropriate instructions for the effective accomplishment of the aforesaid purpose. This instruction is given with the approval of the Department of State. Mr. Adee to Mr. Clayton. POWELL CLAYTON. DEPARTMENT OF STATE, Washington, September 9, 1902. SIR: I have to acknowledge the receipt of your No. 1555 of the 28th ultimo, inclosing copies of instructions addressed by you to the United States consular officers over whom you have supervisory jurisdiction, requesting them to report to you all cases of denial of justice or invasion of the personal or property rights of American citizens within their respective jurisdictions. The Department approves the instruction. ALVEY A. ADEE, ACCIDENT TO PRESIDENT ROOSEVELT. President Diaz to President Roosevelt. [Telegram.-Translation.] MEXICO, September 4, 1902. Accept my cordial congratulations upon your escape from accident. PORFIRIO DIAZ. |