Morgan to Frederick T. Frelinghuysen, September 21, 1883

No. 239. Mr. Morgan to Mr. Frelinghuysen.

Sir: Referring you to your dispatch No. 361, January 31, 1883 to my dispatch No. 583, March 6, 1883, and the inclosure therein, all relating to the schooner Daylight, sunk in the harbor of Tampico by the Mexican gunboat Independencia, and the claim for damages resulting therefrom, I have to inform you that on the 11th of April last, in obedience to instructions contained in your No. 382, March 24 last, I addressed a note to Señor Mariscal, in which I asked further information on the subject discussed by him in his reply to my note of the 15th February last, a copy of which is inclosed in my No. 583.

On the 14th August last, not having received an answer thereto, I addressed a note to Señor Fernandez asking for one. This answer I have this day received, dated the 18th instant. A copy and translation thereof I inclose.

Señor Fernandez recalls to me that the principle has been invariably maintained by the Mexican department for foreign affairs that diplomatic intervention on behalf of foreigners is not admitted except in cases where there has been a denial of justice. He says that the case of the Daylight is, primarily, one of the competence of the department of war and marine, before which the parties in interest should present their claim, taking occasion to inform me that before that department the claim cannot be presented through this legation, as foreign ministers can only address the Government to which they are accredited through the department of foreign affairs. If that department, he says, does not admit the responsibility of the Government in the premises, they have their recourse in the courts. He finds authority for this in article 8 of the federal constitution, which provides: “Es inviolable el derectio de peticion ejercido por escrito, de una manera pacifica y respetuosa.” (The right of petition by writing, couched in peaceable and respectful terms, shall be inviolable.) And as the succeeding phrase in the article above quoted from qualifies the above right, as follows, “pero en materias politicas solo pueden ejerculo los ciudadanos de la Republica” (but in political affairs this right can only be exercised by citizens of the Republic), he assumes that foreigners may bring the Mexican Government into court; in other words, that the right of petition for a redress of grievances includes the right to sue a nation in its own courts.

The question which I propounded to him, as suggested in your dispatch No. 382, viz, whether an individual has the power, in Mexico, to proceed at law against a national vessel of war for damages inflicted upon him, he does not consider it necessary to discuss, as he finds an answer thereto in article 97 of the constitution, which confers jurisdiction on the Federal courts, “De las que versen sobre directio maritimo” (small cases arising under maritime law).

Therefore, according to Señor Fernandez, because cases arising under maritime law come under the jurisdiction of the Mexican federal courts, a national vessel may be brought into court to respond for damages inflicted by her.

From his note it results, first, that a claim for the reparation of damages caused to a citizen of the United States by the running down of his vessel by a Mexican man-of-war, in a Mexican port, must be first presented for adjustment to the department of war and marine; second, in case the decision of that department is adverse to him, he must appeal to the courts of the country for redress; and, third, that diplomatic intervention in his behalf is not to be admitted except in the case of a denial of justice.

I am, &c.,