Spaces of Law in American Foreign Relations: Extradition and Extraterritoriality in the Borderlands and Beyond, 1877-1898

THREE. Borderlands Exceptions

CHAPTER THREE Borderlands Exceptions There seems no good reason why the man who has committed any major crime should go unwhipped of justice because he has fled to another sovereign. Warner P. Sutton, U.S. consul at Matamoros, March 19, 1888 At 11:00 a.m. on March 3, 1888, a group of disguised Mexican soldiers under Captain Francisco A. Muñoz crossed the Rio Grande at Eagle Pass to grab a deserter named Atanacio Luis. The bungled kidnapping ended with a gunfight that left several dead and wounded. It was, the local Eagle Pass Press Telegram intoned, a “coolly planned” and “deplorable incident” that stood as “one of the foulest outrages upon international law and friendship” to occur along the border. According to Warner P. Sutton, the U.S. consul at Matamoros, it was “all in all . . . the most flagrant and glaring outrage I have ever known on this border.” And Sutton, readers of the previous chapters will recall, was no stranger to feeling outraged in this era of perpetual borderlands outrage. This kind of language, though excessive even by the inflated standards set along the border, reflected the seriousness of the crossing and shoot-out at Eagle Pass and the sharp inadequacies of and slippages within the legal regime along the border. This looseness was produced as much by the physical realities of geography as by the abstractions of legal spatiality. It was intensified by the local political culture. Jurisdictional issues became particularly stark in cases of legal and extralegal transborder pursuit of criminals, smugglers, deserters, and other fugitives, though they were also troublesome in all other relations from trade to property ownership (fig. 3). The aftermath to the Eagle Pass affair, one of many similar incidents that occurred in the borderlands with regularity during the last three decades of the nineteenth century, demonstrated how U.S. foreign policy and especially extradition policy in the region was a servant first to interest, power, and theories of state sovereignty and territoriality at the federal, Borderlands Exceptions [141] state, and local levels. Only thereafter (if ever) did it attend to the less compelling if oft-cited abstractions of justice. Central to the troublesome operation of the borderlands extradition system and the issues of legal spatiality within it was a reliance on exceptions—exceptions to process, structures, jurisdiction, territoriality, and even legality itself. This chapter focuses on the political significance and governance implications of the borderlands clause to the U.S.-Mexico Extradition Treaty of 1861 as an excellent way of exploring exceptions and the place of law as they were implemented in the late nineteenth-century borderlands. Sovereignty can be understood in part as the power to create exceptions in the furtherance of its own ends, or placing sovereignty outside of the law. The unusual border states clause stood as a marked exception to all American extradition relations, including those involving the states of the U.S.-Canadian borderlands. The system of exception at the border undergirded the search for other such exceptions and exclusions as a function of the wider structuring of U.S. power and jurisdiction during the critical time in the last two decades of the nineteenth Figure 3. “Los charros contrabandistas. Juego de dados,” a dice game about cowboy smugglers, created by the legendary Mexico City engraver José Posada between 1890 and 1913. Library of Congress Prints and Photographs Division, LC-DIG-ppmsc-03448. [142] Chapter Three century. Rogers M. Smith characterized this period as “the mounting repudiation of Reconstruction egalitarianism and inclusiveness in favor on an extraordinarily broad political, intellectual, and legal embrace of renewed ascriptive hierarchies” that were manifest in social relations, racial exclusion and oppression, and imperialism . This chapter explores the function of exceptions in fulfilling and sustaining these systemic divisions through the foreign policymaking of extradition. It situates the carving of exceptions where they sat in policy terms, at the linkages between domestic and foreign policies, in which local lawlessness often projected incoherence upon expressions of sovereignty and transnational power. In 1888, the soldiers crossed out of frustration over Mexico’s half-hearted and failed official attempts to compel Luis’s return. Luis, who had committed no crime except desertion, was not surrendered to Mexico by Texas officials because desertion was not considered an extraditable offense according to the existing U.S.-Mexico Extradition Treaty signed in 1861. This situation rankled the soldiers in the Mexican 3rd Cavalry, and they...