No. 460.
Mr. Mariscal to Mr. Fish.
New York, April 17, 1875. (Received April 22.)
Mr. Secretary: I have the honor to reply to your note of the 6th instant, in relation to the claim of my government on account of the murder of some Mexican shepherds in Texas, and to remark that in my previous note on this subject it was not my intention to say that your Department had recognized the right of Mexico to consider that there had been a denial of justice in the case.
I only said that the right had been recognized of considering the neglect to prosecute the criminals in this case as such a denial, omitting to add in the same sentence that that recognition was merely hypothetical, for the de facto existence of the neglect to which I refer has not in reality been recognized. I merely desired to have the fact settled that your Department agreed with me, that the simple neglect to prosecute [Page 983] the criminals in question would constitute, in itself, a denial of justice, without any necessity of a positive act denying a legal remedy, or of a specific omission in respect to an application for such remedy.
Such, indeed, seems to be the sense of certain words contained in the aforesaid note of your Department, which I take the liberty of transscribing here only for the purpose of showing the spirit by which I have been actuated in referring to the contents of said note.
They are as follows: “You allege that neglect to prosecute the offenders (i e., the murderers of the shepherds) would be a denial of that justice which your government has a right to expect. Your allegation is entirely concurred in.” Hence I inferred, not that the existence of the denial of justice was recognized, but that the principle was admitted that it would exist whensoever there should be neglect to prosecute the guilty parties. Now, such neglect may consist in the failure of the authorities to bring them to trial when they are discovered, or in their not trying to discover them by all the means used by public authorities in civilized countries (such as Texas doubtless is) for the discovery of the perpetrators of any crime which is not a mere injury or offense of a private character, as murder never has been.
What confirmed me in the opinion that your Department did not restrict the sense of the phrase to which I allude in such a manner as to exclude neglect in regard to the discovery of the criminals, was the fact of its referring without any restriction to what I alleged in my note of March 9, in which I spoke of this very neglect of the Texan authorities to endeavor to discover the murderers. Moreover, the honorable Secretary, in the same note, saw fit to make some allusion to the peculiar condition of the frontier, where the prevention, punishment, or discovery of crimes was very difficult, perhaps impossible, and I thought that the purpose of this allusion was to show, that the special neglect which I supposed to have existed had not existed in fact, while it was not denied that if it had existed it would have constituted a denial of justice.
These, Mr. Secretary, were the reasons why I supposed the principle to be admitted that absolute neglect to examine who were the criminals would be considered, as equivalent to unwillingness to try them in case they should be discovered. Nevertheless, in the note to which I now have the honor to reply it is said that inasmuch as no complaint supported by a sworn statement in regard to the crime and the criminals has been made, there can have been no denial of justice. I regret that I cannot subscribe to this principle, to which I will take the liberty, for the present only, to advance a few objections.
It appears that all the justice that can plainly be derived from international law, and especially that which is defined as justice by the laws of the country, may be claimed by a foreigner. If, therefore, the authorities in Texas are under the natural and legal obligation to try to discover certain criminals, the absolute neglect to fulfill this obligation when foreigners have been the victims of the crime gives to the government of such foreigners the right to consider that justice has been denied them. Besides, if, in the case of the murder of a foreigner, the public authorities were not under obligations to take measures for the detection of the murderer, the latter would irremediably remain unpunished, because a foreigner usually leaves no relatives or friends willing to undertake the task of furnishing evidence in regard to the crime, and the difficulty is greatly increased in a country in which a vulgar prejudice prevails against a certain class of foreigners, such as has been manifested in Texas against the Mexicans.
[Page 984]I shall content myself, Mr. Secretary, with submitting these brief considerations to your enlightened judgment. I had proposed to suspend the discussion of this matter until I should receive further instructions from my government, in view of the communication which I was informed was to be addressed to the governor of Texas; the tenor of the last note from your Department, however, obliges me to make the above explanation, and to state the foregoing views, to the end that the question may, if possible, remain in the state in which I supposed it to be; that is to say, the principle to which I referred being recognized and the existence of culpable neglect being denied.
Be pleased to accept, &c.,