WHAT historical antecedents must be taken into account in order to understand the questions involved in the present disagreement between Mexico and the United States?
As I have expounded in detail in my Outline of the First Ten Years of the Agrarian Revolution, the human race has come to be divided into two great cultures, the Oriental and the Occidental, mainly because one, that of the East, is the result of a mentality formed by the activity of the visual organs, and the other, that of the West, is the result of a mentality formed by the auditory organs. The Oriental process of thought is a series of pictures that the memory presents or the imagination creates subjectively, whereas Occidentals think by remembering, or subjectively making, spoken phrases. This is why mutual comprehension is so difficult.
Moreover, those of Oriental culture are still fundamentally organized in accordance with the pacific system of the tribe (patriarchy), and the Occidentals have created the warlike system of organized public powers (the State). Among Oriental peoples the idea of authority stems from the old common father of the tribe, whose subjects are his sons; among Occidental peoples, the authority is the power of coercion of society as a whole. The subjects of the nations of Oriental culture, since they were sons of the common father, have not had to create any means of defense against him; they have not created, do not know, and do not adapt themselves to the idea of legal rights. The citizens of nations of Occidental culture are champions of opposing interests in conflict, and any advantage gained in the conflict tends to become consolidated, to function as, and be called, a legal right; from this notion of legal rights there has been developed among them the concept of property rights.
Now then, the population of Mexico is made up, on the one hand, of an immense majority of Indians of Asiatic origin and visual mentality, without any idea whatever of legal rights, and, on the other, of a small minority of white men of European origin, having an auditory mentality and with a civilization organized within the framework of Roman law. As a matter of plain fact, until the days of the Spanish conquistadors there did not exist among the Indians of Mexico any idea whatsoever of legal rights, much less of property rights.
How, then, were property rights organized during the Spanish domination?
Since the conquerors of Mexico were not settlers, as were those who founded the colonies of the United States, but soldiers who established a domination for the purpose of open and unscrupulous exploitation, they set out to acquire not only land, but also people; that is to say, they wanted slaves to work the mines and the fields. The great Conquistador Cortés was given, along with the lands of the marquisate del Valle de Oaxaca, many thousands of slaves, the number of whom he tried to increase still further by claiming that with the heads of families given him went all members of the family. Furthermore, the will of Cortés was kept from public view until a short while ago, because in referring to the Indians he very clearly called them slaves, and the Creoles (descendants of the Spaniards) thought that this did not reflect honor on the supposed founder of Mexico.
It has now been rigorously proved that during the early days of the Spanish conquest many slaves were branded with hot irons, in the very presence of the monks. Notwithstanding this fact, the conquistadors, through a certain shame before the judgment of posterity, managed to give to their division of the spoils a moral justification in the guise of religion, as was typical of the era. They did this by creating mandates called encomiendas, each of which marked out an area of land to be assigned to a conquistador, who was obliged to convert to Christianity all the natives living within its boundaries. By degrees the encomiendas became rural estates, great haciendas which included the land and the men on it.
Although this was, in general terms, the way the colonial régime was built, it must be remembered that the vast extent of the territory, the number of the Indian tribes, and the racial differences between them, together with the infinite variety of means of resistance opposed to the advance of the conquerors, served to lessen the effect of the transformation of the encomiendas into great estates and to restrict them to the fertile and arable flat lands, leaving the Indians free in the mountains and remote desert regions.
The first viceroy of the colonial era, and surely the most remarkable man of that whole period, Don Antonio de Mendoza, represented at the same time the ancestral tribal common father to the Indians and, to the Spanish, the king, of aggressive, powerful, and warlike authority, in whose name he introduced the régime of private property according to Roman law, set up through the ferocious brutality of the Twelve Canons. Thanks to his calm view of things and his understanding of the fundamental and essential necessities of the moment in history when it fell to his lot to live and act, Mendoza was able to reconcile within one régime and one system the great estates derived from the old encomiendas, the small holdings created on the sites of newly founded towns, and the communal property of the Indians. The latter, because of its remoteness from the principal towns of the colony, came down by degrees from the status of property to that of lands held by de facto possession and without deed, and finally to communally occupied lands with no distinctions of individual ownership.
Once the régime of property was established, what were the specific conditions of individually owned property in Mexico under Spanish rule?
The exact situation of individual private property, so far as land and water rights are concerned, is hard to set forth in a few lines.
Ever since the first important dispensations put into effect by the Spanish in America, there can be seen the passive and hidden but predominant influence that the Indians, by reason of their numerical mass, exercised over the whites; indeed, it may be said that the Indians were the determining factor in the creation by the whites of a new system of property.
It was possible for the régime of private ownership of land to be transplanted from England to the United States with its individual character, in the form that Roman law, with its lucid appreciation of existing conditions, had given it after twenty centuries. But in Spanish America it was necessary to create an entirely new system. The individual ownership of all the lands that came under the sway of the kings of Spain was vested solely in the Crown of Castile in such a manner that these sovereigns — hereditary owners of the rights of this crown — were the sole private owners and held individual private title to all the lands of Spanish America.
Naturally the character of this individual ownership that the King of Spain held to the lands and waters of Spanish America absolutely excluded all right of private ownership on the part of the inhabitants thereof; but, since they could not get along without some distinction of property, there were granted, with the name of property, certain rights of possession which had all the conditions of outright ownership except that they were so wholly contingent upon the King’s will that he could, if necessary, revoke all rights to the supposed property. Such was the meaning of the Law of Reversion which all colonial legislation recognized, all the historians have verified, and with which all jurists are perfectly familiar.
It is easy to understand, then, that by virtue of the Law of Reversion all rights of ownership over land and waters within the national boundaries were precarious and revocable. Hence it comes that, from the Conquest until now, what we call the right of private individual ownership — and this is defined by numerous acts of legislature and even more numerous opinions of the courts — may be revoked, and revoked without indemnification. Article 27 of our Constitution is the complete juridical expression of the nature of property among us and of the workings of the Law of Reversion.
[Translator’s note: Mr. Stuart Chase in Mexico, a book written in collaboration with Miss Marian Tyler, gives an excellent brief summary of Article 27 of the Constitution of 1917. I quote from this book: ‘Article 27 . . . lays down the principle that the physical territory of Mexico belongs at long last to the nation. Its subsoil and waters can never be alienated to private ownership, but only exploited by limited concession. The nation retains rights and powers over the surface of the land even when passed to private title, including specifically condemnation for public-utility purposes. The lands of the free villages are adjudged a public utility. What is or is not a public utility is a matter for government to determine, not subject to review by the courts.']
In virtue of the Law of Reversion, inherited historically and legally from the Kings of Spain, the national sovereignty can legally decree the extinction of the latifundia, or estates of vast extension, as set forth in Article 27 of the Constitution, without creating any right to indemnification. The government may simply order that the great estates be broken up within a set time, under penalty of ceasing to have legal existence and so of lacking the guarantee which the same article of the Constitution assigns to property. The guarantee which this article provides and protects in its second paragraph with a provision for expropriation could not possibly apply to the great estates which it orders broken up, but only to the small holdings which are the only form of property that it recognizes and orders to be respected.
If the latifundia had been divided up as Article 27 orders, they would have been protected by constitutional guarantee and could not have been occupied as a whole or in part except by expropriation, and in this case the right to indemnification would have been just and legal. But the estate owners not only have resisted the dispensations of Article 27, but have tried, by efforts from within and international pressure from without, to impose the nullification of the whole Constitution. They have, therefore, incurred the penalty of losing the fundamental guarantee to the legal existence of their estates. They have tried to live above the law, and this has justified the law’s course in exercising the right to extinguish their equity. The Law of Reversion makes it possible for the sovereignty to do this without creating any right to indemnification. However, though no legal right to indemnification has been contracted, and though the land does not, strictly speaking, belong to the landowners but to the nation, our government has, from moral considerations, offered to pay just indemnities in every instance where the occupation has been for ejidos. [Translator’s note: Ejidos were the village lands owned and cultivated in common by the Indians during the colonial régime and under the republic till Díaz disestablished them. The present government is seeking to reestablish them. Ejidos might be rendered by ‘commons’ were it not for the fact that this word connotes ‘waste land.’] Our government has always offered to pay these indemnities, but it is absolutely impossible to exact this payment of us, much less on the basis of what other countries understand as property rights, something entirely different from what property rights are among us.
Whether our conception of property be good or bad, we have the sovereign right to formulate it according to our best knowledge and understanding, and no foreign power can impose upon us a conception other than that which we have formed. The original grants given to the landholders by the kings during the colonial period were written in conformity with our conception of property rights, and to this day these titles are still the point of origin of the rights of the estate owners; their rights have been transmitted from generation to generation side by side with the right of reversion of the sovereign power — that is to say, they are, by their nature, liable to revocation without indemnification. Our colonial legislation is full of concrete cases of limitation, suspension, and full revocation of ownership of property by private persons, without indemnification. During the dictatorship of Porfirio Díaz, the American railroads imposed upon the entire republic the condemnation of private property great and small for their tracks and stations, without paying any indemnities whatsoever. These railroads established the precedents of doctrine and procedure, both national and international, afterwards adopted by the agrarian reform. Upon grounds of public interest, preferred above private interests in all civilized nations, the railroads prevailed upon Díaz to remove from the laws of expropriation the condition of previous payment of indemnity, in order that they might occupy without indemnification whatever lands they needed, whether property of natives or of foreigners. Nobody raised a voice against it.
Outside of official circles, what do we think in Mexico about Mr. Hull’s notes?
The notes of our government express the national feeling very well. As for Mr. Hull’s notes, we are beginning to see far more in them than we thought at first. From them we have come to realize that there exists between the United States and Mexico a complete lack of agreement in the understanding of property rights and the consequences each nation derives from its interpretation of these rights. Not only this, but we also see that the United States, forgetting its own doctrine of the ‘good neighbor,’ has returned to the ‘big stick’ policy of the other Roosevelt, Theodore. This last is due, in part, to the plan suggested by the English oil men to make such impossible demands upon Mexico and to put such pressure behind them that we shall have no other recourse than to return the occupied lands, thus establishing a precedent of restitution that would make possible the satisfaction of the oil men’s demands. Another reason is an intention to put a stop to the movement in emulation of our example, which is making itself felt throughout this hemisphere and which jeopardizes all the vast acquisitions of imperialistic countries.
Reduced to strict essentials, the matter stands thus: In the United States, ownership of the soil and subsoil is a right which cannot be touched except by immediate payment of an indemnity in hard cash; in Mexico, on the other hand, there has never existed in the past, nor does there exist in the present, any title of ownership that does not include the colonial right of reversion susceptible of being put into effect by the State, the successor to the monarchs of Spain, without any indemnification whatever. This fact has not kept the public powers of Mexico — out of moral considerations, or rather from considerations of a high order of foreign policy — from being always disposed to pay the indemnities they deem equitable. The indemnities referred to in Mr. Hull’s notes would already have been paid if the United States, by its periodical dispatch of untimely and immoderate notes, had not prevented the completion of the agrarian reforms. The fundamental disagreement between the United States and Mexico is that the United States considers that it can exact the indemnities and the manner of paying them, while in the opinion of Mexico these obligations are of a moral (not legal) character and cannot be exacted by anybody.
What do we think about the settlement that has been reached by the United States and Mexico?
The recent settlement, which concerns the question of the agrarian expropriations exclusively, seems satisfactory to me, as it does to the eighteen million Indians and part-Indians who form the true Mexican nation. The Creoles, who do not consider themselves Mexicans, but Spaniards, or members of whatever other European race they are descended from, are dissatisfied, as always. We who are the true Mexicans accept this solution for two reasons. First, since our great president, General Cárdenas, accepted it, we believe it was the best that he could arrange. Secondly, we think it is well worth the sacrifices it entails, because it is a step forward toward the friendly understanding with the United States we have always held to be a fundamental necessity of our foreign policy.
However, the way Mr. Hull stated the question of the land indemnities seemed to be in accordance with three postulates with which we could not agree, although we understood why a nation as powerful as the United States should advance them. First, the United States considers that its nationals who settle in a country not their own carry, in their personal estate, their own conception of property, and that it ought to prevail over the one which the said country has formed. Secondly, it is believed that practical recognition of the United States’ superior conception of property ought to prevail in every case over the laws of the land its nationals enter, whether by dint of direct backing of the United States or by the combined pressure derived from a tribunal of arbitration made up of representatives of powers with the same conception of property. Thirdly, it is implied that recognition of the superiority of the conception of property that the United States has formed or inherited from English law ought to be held as an international principle to which all the nations of Latin America should adhere as to a written law.
All this seemed to us to say, when translated into plain words, ‘I am enlightenment, civilization, and international law, and whatever I tell you to do you ought to do.’ Naturally this sounded to us just like the voice of the European intervention against the reforms of Juárez, coming back with the same pretexts of civilization, the same words of benevolence, and the same definite insistence upon pecuniary advantage.
It was bound to distress us when we saw, just when the last stronghold of the great landholders, the insolent inviolability of the oil concessions, had been destroyed, and when we were struggling through the acute economic depression which the great interests, wounded by the termination of the concessions, had brought upon us, that, in place of the support we might have expected from the government of the ‘good neighbor,’ there sprang from this government a singularly imperative note, saying, ‘Pay at once for the expropriations you’ve made,’ which was equivalent to saying, ‘Since you can’t pay, give back what you’ve expropriated’ — that is, ‘Undo your reforms and reëstablish the régime of the great estates.’ This note, and the one that came after it, were enough to plunge us into despair. The United States could not possibly have found a more effective way to arouse in Mexico the spirit of the oligarchy against the agrarian reforms just on the point of completion, and at the same time to irritate en masse the popular elements who are struggling, through these reforms, to form a nationality.
For all of us who make up the true Mexican nationality, the situation is this: Article 27 of the Constitution of Querétaro decreed categorically and finally the breaking up of the latifundia by their owners, so that these owners could sell the divisions and thus incur no loss. However, since the owners would not make such divisions, and, in defiance of the constitutional law, tried to impose by force the continuation of the régime of the great estates, the State had to punish this rebellion by invoking the Law of Reversion which the public powers of the nation have possessed ever since the conquest. The American estate owners in Mexico could have avoided their loss simply by obeying the constitutional law. Instead, they rose up against it not only for themselves but also on behalf of all the landholders, and sought to avail themselves of the power of the United States to stop the completion of the agrarian reforms. We had to penalize the American landholders just as we did the Mexicans. In applying to the Americans the same law that governs the Mexicans, our nation was absolutely within its rights; we could do it in exercise of our national sovereignty, since, as I have pointed out, it was a question of the fundamental law of the State.
Thus, instead of the Americans having any right to complain of Mexico, it seems to me it was Mexico that had reason to complain of them, all the more when they came forward as ‘victims’ with a ‘right’ to indemnification. In agreeing to this last, Mexico has yielded not to justice but to force.
The untimely action of the United States produced immediate consequences in Mexico’s interior affairs. Under the leadership of the American landholders, the Mexican landholders reasoned this way: ‘Mexico can’t pay indemnities to the American landholders without paying the other foreign landholders and the Mexicans on the same basis, and, since all this will add up to millions of pesos, it would be folly for Mexico to assume such an obligation in the very time of the disturbances caused by the application of the reforms. It would be senseless for Mexico to attempt payments it is financially unable to make because the United States will never permit the completion of the agrarian reforms. And in case Mexico does not make the payments demanded of it, and goes on with the occupation of lands, what is the United States going to do ? ’
As can be seen, the demands of the United States created internal disturbance by encouraging the landholders, who had become resigned because they thought the dispensations were irrevocable, to think that if the indemnifications could not be paid the United States would demand the return of the lands. Such a restitution would have undone all that has been accomplished toward agrarian reform and would have even gone so far as to include restitution of the rights and properties taken away from the oil companies.
Did Mr. Hull want to go so far? We do not think that he did, but when the opportunity had come for us to complete the breaking up of the great estates by decreeing the automatic transformation of the hacienda communities into townships, his notes brought to a sudden stop the application of this measure, and, by attempting to return the agrarian question to the status it had twenty years ago, prolonged unnecessarily the disturbances we have been suffering from.
As I have said elsewhere, I have always been a most ardent advocate of the doctrine that the foreign policy of Mexico ought to be built around an irrefrangible principle of understanding with the United States. We have accepted the agreement to pay the indemnities, but in the recent Pan-American Congress at Lima the United States was able to see a foreshadowing of the far-reaching effect of this settlement on the doctrine of the ‘good neighbor.’ Just before this Congress opened, I wrote as follows: —
‘In order to understand clearly the position of Mexico in this dispute, it is necessary to take a detached position, in order to get the broadest possible view of things; and we must have, at the same time, a clear vision of the future: the note Mexico sent in answer to the intimations of the first note of Mr. Hull has hit centre. Indeed, the sound doctrine that every foreigner who goes to a country not his own ought to be subject to the same advantages and risks as are the sons of that country, without being able to ask for or get more, will prevail by the very force of its rightness and will undo the framework of all the imperialisms. The fear that such a doctrine should be formulated and promulgated — a fear that seems to have inspired the notes of Mr. Hull — is to a certain extent justified, because the United States would be helpless against the concerted action of the nations of the Western Hemisphere all following Mexico’s example at once. And it is clearly to be seen, as by the light of noon, that when all the nations of the continent deliberately do what Mexico has been bound to do in the application of Article 27 of its Constitution, the continent will feel an immense relief, and, once the claws of imperialism are withdrawn, its component nationalities will rise up and grow with all their potential forces in expansion.
‘I believe that President Cárdenas bears in his hands a standard for the continent far more real and more liberating than that of the “good neighbor” policy. This, however, does not prevent us from recognizing President Roosevelt’s good intention in raising up the latter standard.’
The world can see that we were not deceived.