No. 730.] Mr. Hill to Mr. Clayton. DEPARTMENT OF STATE, SIR: I have to acknowledge the receipt of your No. 1434 of the 19th instant, reporting that the claim of Mr. M. Brown on account of his illegal eviction and imprisonment in the City of Mexico has been settled by the payment to him of $10,000. The Department is gratified at the satisfactory adjustment of the claim. I am, etc., DAVID J. HILL, ENFORCED ENLISTMENT IN AND DISCHARGE FROM MEXICAN ARMY OF FRANCISCO CUERO, AN AMERICAN INDIAN. No. 613.] Mr. Hay to Mr. Clayton. DEPARTMENT OF STATE, Washington, December 7, 1901. SIR: I inclose herewith for your information a copy of a letter from the Secretary of the Interior, and of a dispatch from the United States consul at Ensenada, in relation to the enforced enlistment in the Mexican army of Francisco Cuero, an Indian from the Campo Indian Reservation, in California. You will use your good offices to prevail on the Mexican Government to discharge Cuero from further military service, if upon a further investigation of his case the facts elicited will justify such action. I am, etc., [Inclosure 1.] JOHN HAY. DEPARTMENT OF THE INTERIOR, SIR: I have the honor to acknowledge the receipt of your communication of the 7th instant, and accompanying copy of a dispatch from the consul at Ensenada, Mexico, in regard to the enforced enlistment in the Mexican army of an Indian from the Campo Indian Reservation, in California. In response thereto I transmit herewith a copy of a report of the 25th instant, from the Commissioner of Indian Affairs, recommending, in view of the statement made that Francisco Cuero is an American Indian, that the ambassador to Mexico be requested to use his good offices in prevailing on the Mexican authorities to discharge Cuero from further military service if upon a further investigation of his case the facts elicited will justify such action. The Commissioner's recommendation meets with my approval. E. A. HITCHCOCK, Secretary. [Subinclosure.] Mr. Jones to Mr. Hitchcock. DEPARTMENT OF THE INTERIOR, OFFICE OF INDIAN AFFAIRS, Washington, November 25, 1901. SIR: I have the honor to acknowledge the receipt, by Department reference for consideration, of a communication dated November 7, 1901, from the Secretary of State, inclosing for your information a copy of a dispatch from the United States consul at Ensenada, Mexico, in regard to the enforced enlistment in the Mexican army of an Indian named Francisco Cuero, from the Campo Reservation, Cal. The consul states that Cuero is in the barracks at Ensenada as a volunteer in the Mexican army; that he is an American, as shown by testimony of the people living at Campo, and that he belongs to that reservation; that he was arrested about a year and a half ago by the Mexican authorities and charged with smuggling two sacks of flour, and was detained for a while without trial and liberated; that his story is that immediately after his liberation he was compelled by threats and fear of harm to enlist for five years in the military service of Mexico; that he did not understand Spanish and was not exactly aware of what he was doing, and hence became a soldier against his inclination. Cuero's age is stated by the consul to be about 20 years. The facts as stated by the consul coincide with those of the case of Frank Serra, or Cuero, with regard to which this office communicated with the Department on July 19, 1900. It was alleged that Serra had been impressed into the Mexican army, and at the solicitation of William Collier, esq., special attorney for the Mission Indians of California, this office brought the matter to the attention of the Department, with the recommendation that the papers in the case be referred to the Secretary of State with the request that the attention of the Mexican authorities be invited to it, and asked to take the necessary steps to have the soldier discharged. By Department reference, this office received a communication dated September 26, 1900, from the Acting Secretary of State, inclosing a copy of a dispatch from the ambassador to Mexico, wherein it was stated that there was no soldier named Frank Serra in the military company of the northern district of Lower California, at Ensenada, but that one Francisco Cuero, or Cueros, appeared to be the individual about whom inquiry was made by Special Attorney Collier; that Cuero was said to be the son of the captain of the Manzanita band of Indians of San Diego County, Cal.; that he was arrested for smuggling and enlisted voluntarily in the Mexican military service. It was further stated by the ambassador that Cuero has always lived with his mother at Los Piscachos and other villages in said district of Lower California. In view of the ambassador's statement this office took no further action in Cuero's case. From the consul's dispatch it would seem not unlikely that there is some truth in the Indian's story regarding his alleged forced enlistment, and under such circumstances it would appear appropriate to again broach the matter to the Mexican authorities. It is recommended that the Secretary of State be requested to instruct the ambassador to Mexico to use his good offices in prevailing on said authorities to discharge Cuero from further service if upon a further investigation of his case the facts elicited will justify such action. The communication from the Secretary of State is herewith returned with a copy of this report. W. A. JONES, Commissioner. Very respectfully, etc., [Inclosure 2.] Mr. Bailey to the Department of State. CONSULATE OF THE UNITED STATES, SIR: I have the honor to transmit herewith facts and information pertaining to a certain Francisco Cuero, an Indian belonging to the Campo (California) Indian Reservation, who is here in barracks as volunteer in Mexican army. The facts are that said Francisco Cuero is an American by testimony of people living at Campo, and that he belongs to that reservation. He was arrested about a year and a half ago by Mexican authorities, charged with smuggling two sacks of flour. He was kept a while without trial and liberated. His story is that almost immediately he was induced by threats and through fear to volunteer for five years' service in the Mexican army; that he did not understand Spanish and was not aware of the exact import of what he was doing, and hence is a soldier against his inclination. He is about 20 years of age. I respectfully submit for your instructions. I have, etc., EVERETT E. BAILEY, United States Consul. No. 1237.] Mr. Clayton to Mr. Hay. EMBASSY OF THE UNITED STATES, SIR: I have the honor to acknowledge the receipt of the Department's No. 613, of the 7th ultimo, inclosing a copy of a letter from the Secretary of the Interior, and of a dispatch from the United States consul at Ensenada, in relation to the enforced enlistment in the Mexican army of Francisco Cuero, an Indian from the Campo Indian Reservation in California. Following your instruction above mentioned, I addressed a note to the foreign office, copy inclosed, suggesting that Cuero be discharged from the Mexican army. I also inclose copy and translation of Mr. Mariscal's reply stating that the department of war had been requested to discharge Cuero, if possible, and copy and translation of a further note stating that his discharge had been ordered. I have, etc., POWELL CLAYTON. [Inclosure 1.] Mr. Clayton to Mr. Mariscal. EMBASSY OF THE UNITED STATES, MR. MINISTER: Referring to our conversation of Saturday last relating to the enlistment into the Mexican army of the Indian, Francisco Cuero, and to the report of the jefe politico of the northern district of Lower California, a copy of which was transmitted to this embassy in your excellency's note of the 31st of August last; from the facts before me, including those contained in said report, it appears that the said Cuero is the son of the chief of an Indian tribe located at the Campo Indian Reservation in California. It also appears that when he enlisted into the Mexican army he was not a Mexican citizen, nor was he of that legal age which authorized him to manage his own affairs; and although, strictly speaking, he is not an American citizen, he is a domestic subject of the United States. Without referring to the question of involuntary enlistment, I repeat the suggestion I made to your excellency during the aforesaid conversation, and which seemed to receive your excellency's favorable consideration, that perhaps the best way to dispose of the question would be for your excellency's Government to kindly discharge from the army the soldier, Francisco Cuero. I renew, etc., POWELL CLAYTON. [Inclosure 2.-Translation.] Mr. Mariscal to Mr. Clayton. DEPARTMENT OF FOREIGN AFFAIRS, MR. AMBASSADOR; I have had the honor to receive the note of December 24 last in which your excellency is pleased to ask that the soldier, Francisco Cuero, be discharged from the Mexican army because of his being the son of a chief of an Indian tribe residing in California and not a Mexican citizen. In reply I have the pleasure to say to your excellency that on this date I have requested the department of war to accede to the wishes expressed by the embassy unless there should be some particular circumstance which may not permit it. I renew, etc., IGNO. MARISCAL. [Inclosure 3.] Mr. Mariscal to Mr. Clayton. DEPARTMENT OF FOREIGN AFFAIRS, MR. AMBASSADOR: Referring to my note of the 3d instant, I have the honor to inform your excellency that the department of war, in official communication of the 7th instant, advises me that it has ordered that the soldier, Francisco Cuero, be immediately discharged from the company fija norte of Lower California. I renew, etc., IGNO. MARISCAL. CONSULAR IMMUNITIES EXEMPTION OF CONSULS, UNDER MOST FAVORED NATION CLAUSE, FROM PAYMENT OF PERSONAL TAXES. No. 244.] Mr. de Azpiroz to Mr. Hay. EMBASSY OF MEXICO, Washington, D. C., January 24, 1902. MOST EXCELLENT SIR: In August, 1901, Mr. A. H. d'Alemberte, tax collector of Escambia County, State of Florida, gave notice to Dr. Don Abraham Díaz, consul of Mexico at Pensacola, that he would have to pay poll and other taxes on his personal property for his private use for the year 1900. The consul applied to this embassy and reported that such taxes had never been demanded of foreign consular officers in that county; that he knew positively that the vice-consuls of England and Norway, and the former's predecessor who had lived there many years, were exempt therefrom, and that he (the informant) being a Mexican citizen and consul missus, not engaged in manufacture or commerce, considered himself exempt from personal taxation, in the same manner as are those of this country in Mexico placed under similar circumstances. Upon examining the question I replied to Dr. Díaz that he could claim exemption from personal taxation and taxes on his personal property, and exhibit to the tax collector the exequatur by which His Excellency the President of the United States authorized him to discharge his consular duties, drawing especial attention to the clause by which he was accorded the rights and privileges enjoyed by the consular officers of the most favored nations, among whom I mentioned to him those of Austria-Hungary, Belgium, Italy, Roumania, and Servia. These officers, by virtue of the treaties existing between their respective countries and the United States of America, enjoy the privilege of not paying personal taxes, direct or indirect, Federal, State, or municipal, when they are citizens of the States by which they were appointed and do not engage in manufacturing or trading business. As Dr. Díaz possessed all these qualifications, I advised him to bring forward all the said points, and, if the tax collector should nevertheless insist upon his demand, to pay the taxes under protest and report to me. Under date of the 3d instant the consul again reported to me that he had followed my instructions, and that upon being a second time requested to pay, after his reclamation had been rejected on the ground that there was no existing treaty between the United States and Mexico to support it, he paid under protest the sum to which the two personal taxes amounted. While laying the matter before you, together with the grounds for the opinion I gave to the consul of Mexico at Pensacola, I deem it expedient to supplement them with the following remarks: The lack of a consular convention between Mexico and the United States, similar to those which concede favors to the consular officers of Austria, Belgium, Italy, and other States, affords no valid argument in support of the denial to the Mexican consul at Pensacola of the treatment accorded to the said officers, for the latter being the most favored, the rights and privileges that they enjoy are to be extended to him by virtue of his exequatur, which grants them to him. If it were otherwise, the concession would be without practical effect. It is absolute and for that reason is not open to the interpretation that it is subject to the condition of the existence of a treaty, unless there be the unwarrantable intent to nullify the concession. But even though it should obtain, this interpretation ought not to come from an official of the State of Florida, but solely from the Chief Magistrate who issued the exequatur, under the exclusive powers conferred upon him by the laws of the Union to authorize the foreign consular officers to discharge their duties. On the other hand, all consuls, vice-consuls, and public consular agents, subjects of their respective governments, sent and salaried by them, and who do not, in the Mexican Republic, engage, directly or indirectly, in any kind of industrial or commercial pursuit, are exempt from all taxes and assessments. So does prescribe the Mexican act that lays down the law in regard to commercial agents residing in the Territory of the nation, and the consuls of the United States in Mexico receive its benefit without the guaranty of an international treaty. Now, then, reciprocity in this respect is the rule that governs the conduct of your Excellency's Government, according to the declaration made in 1851 by President Fillmore in his second annual message, as follows: What is due to our own public functionaries residing in foreign nations is exactly the measure of what is due to the functionaries of other governments residing here. It is, therefore, indisputable that the Mexican consular agents residing in any of the districts of the United States have a right to claim the exemption from personal taxation granted by the law of my country, without there being required a special convention between the two Republics, and even though there should have been omitted from the exequatur of the commissions by which those officers are accredited the clause conferring upon them the rights and privileges of similar agents of the most favored nations. This treatment the Mexican consul at Pensacola has asked of the tax collector of Escambia County, and it has been denied to him. On submitting the point in dispute between the two functionaries to your enlightened examination, I am confident that you will decide in the sense dictated by justice and in the manner befitting the friendly relations happily existing between our two Republics. I have, etc., M. DE AZPIROZ. |