Cuervo to The citizen Secretaries of the Grand Jury , Mexico. The reading of the documents being concluded, the debate commenced, May 15, 1868

Order from the federal court.

COURT OF THE DISTRICT.

The citizen Licentiate Ignacio Matute has just presented himself in this court as counsel of prisoners, stating in writing that five individuals are to be shot in the morning of to-day without being tried by the tribunals established by the constitution.

As, if this be true, it attacks the guarantees the constitution of 1857 has conceded to every Mexican, it becomes the duty of this court to impart the protection, and id. demanded; and, therefore, in the name of the justice of the Union, I issue to you the present, for the purpose that you shall give orders for the suspension of said execution, with the reservation of a proper trial, in order that should the proceeding in question prove to be legal the action of the government shall remain free.

Independence and liberty! Guadalajara, February 24, 1868, at 25 minutes past 5 in the morning.

TREJO.

The Citizen Governor of the State.

Reply of the governor.

SUPREME CONSTITUTIONAL GOVERNMENT OF THE STATE OF JALISCO—SECTION OF JUSTICE.

The criminals referred to in your note that I have just received, and which I hasten to answer, have been tried and sentenced to death in conformity with the provisions in force in the State in matters of robbery and kidnapping, with which provisions I supposed you were perfectly acquainted from the day of their publication. Copies of them were sent to your court, as also to the superior tribunal of circuit. The duty of the government under my charge is to fulfill those provisions, and enforce their fulfillment in pursuance of the attributes imposed by the constitution of the State, and it is impossible for me, without violating that duty, of the observance of which I have to render account to the honorable legislature, to order the suspension of the proceeding against said criminals, as you intimate in your said note.

Independence and liberty! Guadalajara, at five minutes after 6 in the morning, February 24, 1868.

J. A. G. CUERVO.

A. Lancaster Jones, Secretary.

The Citizen Judge of the District, Present.

Judicial citation.

department of justice and public instruction—section 1.

For the effects of article 149 of the interior regulations of the congress of the Union, I inclose to you, duly certified, the process verbal formed against the citizen governor of that State, under the accusation of the citizen deputies Robles, Martinez, and Agulo, and which the section of the grand jury of the congress has been pleased to remit to this department for the purposes indicated.

I have to ask that you will acknowledge the corresponding receipt.

Independence and liberty! Mexico, April 16, 1868.

From occupation of the citizen minister.

MANUEL CASTILLA Y PORTUGAL, Chief Clerk.

The Judge of the District, Guadalajara.

Service of the same.

Guadalajara, April 24, 1868.

This citation, with the official note which accompanies it, having been received, let the directions of the section of the grand jury of the congress of the Union, in their resolution of the 15th of the present month, be carried into effect, the judge who signs hereto passing to the house of the citizen governor of the State for the purpose expressed in article 149 of the internal regulations of congress. By the judge of the district of the State of Jalisco, decreed and signed.

D. J. TREJO.

A. ANGEL PEREZ.

A. VICENTE URZUA.

On the 25th of the same month, with the object of giving compliance to the foregoing order, associated with those assisting, I passed to the palace of the State, and the citizen Antonio Gomez Cuervo, governor of the same, being present, the undersigned judge read this process, and having concluded, Señor Gomez Cuervo said:

“The state of excitement and of alarm in which the inhabitants of the State of Jalisco found themselves in the month of January last, owing to the kidnapping and other crimes that were committed even in the principal streets of the capital, energetically called for the adoption of efficacious measures for putting a stop to a state of vandalism without example even in the epochs of the greatest disorders and revolution.

“The whole city demanded that such measures should be taken. No one is ignorant of the representations which, with, that object, were addressed to the government and to the legislature, until the latter finally had to issue the decree of the 31st of January, which forms the second page of this procés, and which declared in force the circular of the 12th of March, 1861, leaving its application to the charge of the political authorities in addition to the military, although with the restriction that to the government belonged the faculty of designating what authorities and what officers should have the powers which in the circular were given to the governors and military commandants.

“It is to be noticed that this is the same disposition which was ordered to be again observed under date of the 27 th of May, 1867, by the department of justice of the general government, when it was at San Luis, and that it had continued in force in the State until it was suspended by the legislature of the same, as it was not until the month of January last, that by the government, or the congress of the nation, the mode of administering justice had been determined.

“The decree No. 61 of the congress of the State having been published, as I have stated, and there being no law that conflicted with it, and above all, in fulfillment of article 28 of the constitution of the State, which provides that the governor shall publish the laws without excuse or observation, I was obliged to proclaim it forthwith, decreeing immediately, in conformity with article 3d, the regulations I thought proper for delegating, without danger of abuse, the powers referred to in article 2d.

“I must observe in passing, that, as is public and notorious, the decree was received with applause by the whole of society, who saw in it their salvation. Votes of thanks to congress were drawn up, tranquillity commenced to be restored, and the authorities were only recommended to be prudent in its application.

“On the apprehension of the kidnappers, whose execution has led to my being accused, they were directly, and by virtue of the law, consigned to the political prefect, who tried, condemned, and executed them, without any intervention on the part of the government, whose functions in the matter ceased with the publication of the law.

“These criminals asked protection after they were sentenced, and the judge of the district communicated to me, a few moments before the execution, to suspend the same.

“The section of the grand jury will at once perceive that the law having been issued under the responsibility of the congress of the State, executed by the political prefect in virtue of the authorization given in the law itself, the executive government of the same was entirely foreign to the question, since it was neither the executor of the sentence, nor had it pronounced the sentence, or issued the law, this being the reason why it limited itself in its reply to stating its constitutional obligations.

“I have pointed out the situation of Jalisco when the decree was issued, and some other circumstances relating to its subsistence, in order that the section of the grand jury may be pleased to estimate them at what they may be worth. For my part, I conclude with the assurance that, although I am convinced of the necessity there was for the punishments which took place in this city, I regret the same, as I pride myself in being one of the first to recognize the respect that is due to individual guarantees.” This he said and signed before me.

A. GOMEZ CUERVO.

TREJO.

A. ANGEL PEREZ.

A. VICENTE URZUA.

Then follow various representations of municipalities and citizens of Jalisco, asking the absolution of the accused.

Report of the section of the grand jury.

The section of the grand jury has made a most scrupulous examination of the cause instituted by reason of the accusation presented to the chamber by the citizen deputies Robles, Martinez, Moreno, and Agulo, against the constitutional governor of Jalisco, Antonio Gomez Cuervo.

With an intimate conviction of the gravity and importance of this affair, the undersigned have thought it their duty to consider it thoroughly, in order to report to the national grand jury what they judge to be the most strict justice.

The section does not believe it necessary to make an extract of the procés wherein are contained the proofs of the facts which give rise to the accusation, as this proceeding appears unnecessary, the documents having been read in full in accordance with the regulations prescribed, and will have sufficiently informed the chamber, even to the fullest details. It is sufficient for their purpose to state the facts that appear to be proved, make the application of the legal precepts which serve as the basis of the accusation, and deduce therefrom the consequence which is contained in the opinion they have been able to form of the affair, submitting the same to the wisdom of the jury.

The legislature of Jalisco issued, on the 31st of January of the present year, a decree putting in force the circular which, with reference to the crime of robbery, was dictated by the supreme government of the republic, on the 12th of March, 1861. On the simple perusal of this decree it is clearly and undeniably seen that it is in open opposition to a great part of the precepts contained in the federal charter of 1857, in force in the republic since the 8th of December of last year, when the dictatorship ceased, which was created to meet the difficulties of the late foreign war.

In the opinion of the undersigned, the principle is not even doubtful, that only the congress of the Union, or during its recess the permanent deputation, with the previous consent of the government in council of ministers, can suspend the guarantees conceded to the inhabitants of the republic, in the bill of rights contained in section 1 of title 1 of the constitution. The 29th article of the fundamental law not only reserves to the chamber this important faculty, but carefully restricts it, pointing out the cases wherein use may be made of it, the special points which it is prohibited to touch, and the precise conditions to be observed in making use of that authority.

The legislators of 1857, not content with having made the explicit declaration contained in this article, were desirous of still further removing any doubt or error, by establishing, in the 126th article, the basis upon which the law of the constitution is founded, whose rules form the supreme law of all the Union, to which the authorities of the land must subject themselves, notwithstanding whatever disposition to the contrary that may be contained in the constitutions or laws of the States.

Consequently the general constitution and the organic laws issued to complete it and make practicable the division and attributes of the federal powers, are very positive as regards the deference and respect that are due to them, over the local regimen, the first condition of which is that of subordination to the stipulations contained in the social compact. Neither can the character of free and sovereign, possessed by the States of the federation with respect to their internal administration, be opposed to this, because the condition of this autonomy springs precisely from and is based upon the federal charter, which is the root and principle of our institutions, and therefore there cannot be comprehended in the exercise of that right the violation and disregard of the fundamental law.

This being so, the decree which the legislature of the State of Jalisco ordered to be promulgated on the 31st of January last ought neither to have been issued nor observed, because by it were suspended the guarantees conceded in articles 13, 14, and 20 of the constitution.

The deputies who form that legislative body will be personally responsible, in conformity with the constitution of the State, for that act, which constitutes a fault committed in the discharge of their attributes; and it may also be considered that the governor, Antonio Gomez Cuervo, also is responsible, because he not only carried into effect the provisions of that decree, in every sense unconstitutional, but he went still further than the legislature, and issued a regulation on the 2d of February last, delegating to the subaltern authorities, both military and political, the discretional powers with which he believed himself invested.

In the application of the decree referred to occurred the event which gives rise to this accusation, and the nature of which we believe we are able to examine with probabilities of correctness by the light thrown on it by the foregoing considerations.

Five persons were arrested in Guadalajara who, according to the rumor circulated after their apprehension, had committed the crime of kidnapping; and it was said in public, that at daybreak on the 24th of February last, they were to be shot without any previous trial having taken place, or the least time allowed for an examination into the charge which had led to their being sentenced to the highest penalty.

The judge of the district of Jalisco, at the petition of the counsel for criminals, and in accordance with the organic law of 30th November, 1861, opportunely ordered the suspension of the execution, meanwhile that a trial for their defense might be opened, and communicated this disposition to the governor, Don Antonio Gomez Cuervo. This functionary, for the reasons which appear in his answer, received by the judge of the district a day after the criminals had been executed, in whose favor protection had been decreed, or for whatever other reasons, did not comply with the judicial decree of suspension, which placed the prisoners under the shield of the federal courts. Such an act involves a flagrant violation of article 4th of the said law of the 30th November, 1861, undermines at their base our social institutions, and consequently is a charge of inevitable responsibility. The exculpations made by the accused, on replying to the charges, are not sufficient, in the judgment of the section, to extenuate them, or much less to refute them.

These exculpations are reduced to two points: In the first place, Señor Gomez Cuervo believes that the obligation the constitution of the State imposes upon him of executing the laws of the same relieves him from enforcing obedience to the general constitution and laws; and in the second place, he thinks that the abnormal situation in which the State of Jalisco was found authorizes and justifies his proceedings.

We have already remarked how inexact and illegal the opinion is upon which the first of his exculpations is founded; and with respect to the second, it is easy to see that, whatever may be the character of necessity given to the occasion for a punishable act, it is not sufficient to avert the judicial proceedings, although it may at the proper time be alleged as an extenuating circumstance in mitigation of the rigor of the law in the sentences.

In the judgment of the undersigned, it results from what has been set forth that the accusation which has given rise to the continuation of this process is legal and well founded, and the undersigned conclude by submitting to the enlightened deliberation of the national grand jury the following:

“It is declared that the citizen Antonio Gomez Cuervo, governor of the State of Jalisco, is guilty of infraction of the general law of the 30th of November, 1861, and of the constitution.”

Section of the grand jury, Mexico, May 9, 1868.

CENDEJAS.

PROTASIO P. TAGLE.

GARCIA CARRILO.

SANCHEZ ASCONA, Secretary.

The reading of the documents having been concluded, the said citizen Sanchez Ascona read the following official note from citizen Gomez Cuervo:

Defense of Governor Cuervo.

SUPREME GOVERNMENT OF THE STATE OF JALISCO.

Summoned by the secretary of the grand jury to appear on the 28th instant, to defend myself before it from the accusation which has been made against me for violation of individual guarantees, and without refraining from doing so if it shall be possible, either personally or by means of counsel, I am desirous that the grand jury should at once be made acquainted with the documents I inclose, which may have some influence in the decision of the matter in question. They will form my only defense, should the brevity of time allowed me for appearing, not admit of making it in any other manner.

Elected governor of the State of Jalisco against my wish, against my expectations and when I had never figured nor aspired to figure in any public post, I thought it my duty nevertheless, as a citizen, to accept the position, although for me it was a sacrifice which was what as a liberal I had already made, seeing with resignation my little property destroyed at one time by reactionists, at another by interventionists and French, notwithstanding the false reproaches now made against me through party spirit of having served the empire, and on which point document No. 1 gives sufficient explanations.

On taking charge of the government, I did so with the firm determination of always being the faithful interpreter of the law, and that it should be the guide of my conduct, procuring whatever good might be possible for a people who, without any merits on my part, had so elevated me. I am convinced that, so far as my incapacity has permitted, I have not deviated from that path, and this alone it is that makes me now see with regret that I should be criminally tried when my conscience tells me that I have not been wanting in my duty.

I purposely refrain from describing the state of alarm in which, at the beginning of this year, the whole State of Jalisco was found, owing to the unheard of and incredible development of the most ferocious banditism, which perpetrated crimes and depredations even in the principal streets of the capital. I well know that it is said by the enemies of the government that this state of things was exaggerated, and I, therefore, let facts speak which cannot be contradicted.

To put an end to the evil I have spoken of, the congress of the State issued, under date of the 3d of January, the decree relating to criminal trials, which I inclose, marked No. 2, in which, while giving the parties accused all constitutional guarantees, brief proceedings were provided, and such measures as it was considered might conduce to the desired result were dictated. The trials were established, but robberies and kidnappings continued, because the decree had not sufficient efficacy to terrify the bandits, who, it is mournful to have to state, counted, if not on the direct support of the opposition, on the moral support they derived from seeing the authority depreciated and ridiculed by the daily and blood-thirsty invectives, which, without reason, were directed against it, in publications which have only been allowed to exist owing to the government, the faithful slave to the law, having wished to respect to the utmost the liberty of thought and of the press.

Owing to the ineffeacy of the decree of the 3d of January, the alarm of society was of such a nature, that, on the 31st of the same month, a committee from the municipality of Guadalajara presented themselves before congress, asking for the adoption of more severe measures, as also a numerous concourse of citizens to present the memorial marked No. 3, contained in the adjoined number of the official paper of the State, of the 6th of February.

Congress could not resist, before the exigencies of a population possessed with terror; it comprehended that although only the president in council, with his ministers, and with the approbation of the congress of the Union, can in certain cases suspend the constitutional guarantees, this right ought also to be possessed by the States in urgent cases which do not give time to apply to the federation, as they have the right in such cases of making war against a foreign power, although in article 112 of the constitution it is prohibited in general; and as he who is attacked by a bandit has the right of killing him without waiting for his condemnation by the tribunals, congress, under the pressure of the circumstances, issued on the same day, the 31st of January, the decree No. 61, of which I inclose a copy marked No. 4. Fraction 1 of the 28th article of the constitution of the State (document No. 5) prescribes among the attributes of the, governor that of publishing and executing all of the laws, and of causing them to be obeyed, as also of taking care that the public order shall be preserved.

The meaning of that fraction has been determined, since the year 1862, by congress itself, in the same official documents which, underlined, are contained in the pamphlet No. 6, (pages 19 and 25,) and later in fraction 3d of article 16 of the decree No. 73, (document No. 7.)

The governor, by virtue of that constitutional precept, has the obligation to publish, under the exclusive responsibility of the legislature, the laws which the latter may is sue, immediately on receiving them, and without his being permitted to make any observation whatever, since it is declared that the government does not sanction them but is only the medium of their publication, as are afterwards the political chiefs and directors in the cantons of the States.

This precedent being made known, it is clear that I incurred no responsibility by the publication of the decree No. 61. I simply performed my constitutional duty, and no charge can on that account be brought against me.

After the publication of the decree, the execution of which was intrusted to the political authorities without the government further interfering therewith, public tranquillity began to revive, and still more so when about that time five kidnappers were apprehended, who were tried in conformity with the decree, and whose criminality was proved in due form, as is seen in the certified copy of the act which was drawn up in conformity with the circular of the 12th of March, 1861, (document No. 8.)

All society was awaiting what was to take place; the culprits were condemned to death, and their execution became such a necessity that had it been suspended it would have caused a disorder, as all the world would have seen by it the solemn declaration of impunity for criminals of that kind.

The proof of this is shown in the fact that scarcely had the criminals been executed when from the greater part of the towns commenced to come in votes of thanks to the congress, to the government, and to the political prefect, among which may be seen those which will be found published in numbers 185, 188, 189, and 200 of the official paper of the State, (documents Nos. 9, 10, 11, 12, and 13,) the numbers of which are inclosed for that purpose.

At five in the morning of the day of the execution I received an official note from the judge of the district ordering me to suspend the execution, as the criminals had asked the protection of the guarantees.

I then gave the answer which appears in the procés verbal, stating my obligations as governor of the State; this answer was sent in sufficient time for the court of the district to address itself either to the congress, author of the law, or to the political prefect, charged with the execution of it. I know not by what incident, accidental or not, the note was carried to the judge of the circuit, and the judge of the district did not receive it until after the culprits had been shot. But considering the state of things, and above all, that I was neither the author of the decree nor the person charged with its execution, that it was not tome whom the judge of the district should have addressed himself, but to the political prefect or to congress, would it have been prudent, would it have been politic, even though I had been the party that had decreed the execution, to suspend it as was ordered?

I am of opinion that in those moments my responsibility would have been affected by again introducing alarm and agitation into a society that, always humane and opposed to bloody spectacles, nevertheless then saw their salvation in the execution of those five criminals.

I call the attention of the grand jury to the circumstance that when these events were passing in Guadalajara there had been already proposed in the general congress by the ministry initiative for declaring in force the law of the 25th of January, 1862, the discussion of which has only been terminated a few days since. What would have happened if the congress of the State, instead of dictating the decree No. 61, had remained indifferent, and tolerated until now the continuation of the dreadful situation in which Guadalajara was placed?

If, as I have before stated, it be possible for me to attend the session of the grand jury, personally or by counsel, I will then amplify the reasons I have here only indicated.

However that may be, I from this moment submit to the determination it may dictate, as my conscience tells me that I have not been criminal, and this will tranquilize me in case I shall be condemned.