Edward L. Plumb to William H. Seward, June 30, 1868

Mr. Plumb to Mr. Seward.

Sir: As illustrating the opinions and action of the public men of this country upon questions of constitutional law, and as presenting what may be the beginning of a serious conflict between the general government and one of the most important of the Mexican States, I transmit to the department herewith, translation of proceedings in the impeachment and removal from office of the governor of the State of Jalisco by the Mexican congress just prior to its late adjournment.

I have the honor to be, very respectfully, your obedient servant,

Impeachment of the Governor of the state of Jalisco before the National Congress.

CONGRESSIONAL REPORT.

In the city of Mexico, on the 9th of May, 1868, the congress of the Union being erected in grand jury, the citizen secretary of the section read in full the process verbal relative to the accusation which the citizen deputies Robles Martinez, Silviano Moreno, and Angulo make against the governor of the State of Jalisco, for abuse of authority and infraction of articles 20, 101, and 112 of the constitution, and the law of the 30th of November, 1861.

The report of the section was also read, which concludes with the following proposition:

“It is declared that the citizen Antonio Gomez Cuervo, governor of the State of Jalisco, is guilty of violation of the organic law of the 30th of November, 1861.”

After some discussion, the following proposition was introduced:

“The discussion of the report of the section of the grand jury is suspended, for the reason that the cause cannot proceed to the determination of the guilt or innocence of the presumed offender, as notice has not been served upon him of the day fixed for the trial of his cause, that he may be heard in his defense.”

After discussion, this proposition was adopted by a vote of one hundred and twenty-one against seven.

The following proposition was then adopted:

“The twenty-eighth day of the present month is hereby designated for the continuance of the proceedings commenced against the governor of the State of Jalisco, the citizen Antonio G. Cuervo, to whom there shall to-day be sent, by extraordinary express, the corresponding notification by the secretary of congress.”

Jalisco.

The accusation of Mr. Gomez Cuervo, governor of the State of Jalisco, before the general congress, has been very badly received in Guadalajara, and has led to the issuance of the decree we insert below, and which reached here yesterday by an extraordinary courier.

Remarks by the Editor of the Siglo XIX.

This decree gives rise to serious reflections. Whenever any high functionary is accused of infraction of the constitution or federal laws, it is the unavoidable duty of congress to subject him to trial, but this trial does not in any manner imply a declaration in respect to the acts of the legislatures.

The decrees of the latter are not revisable by the congress of the Union, and if individual guarantees be attacked by them, the law affords the injured parties the recourse of the courts for their protection.

The governors of the States are subject to two classes of responsibilities: as chiefs of the executive in each State, they are responsible before the respective legislatures, and as agents of the federation they are responsible before the general congress. The case may well occur of conflict between these two responsibilities; but keeping in view that the constitution is the supreme law of the country, and ought to be observed, notwithstanding whatever may be provided to the contrary by the particular laws of the States, and it being the federal courts that are charged with the application of the law of the Union, it is clear that the governors have to yield to the decisions and resolutions of the federal tribunals.

The suspension of guarantees can only be made by the President of the republic, in accord with his council of ministers and with the approbation of congress. This does not prevent the legislatures from conceding extraordinary powers to the governors, provided they neither attack nor suspend guarantees established by the general constitution.

This view is found set forth in one of the late circulars from the ministry of government, and the legislature of Queretaro acted in conformity therewith when it applied to the federal authorities for power to suspend the guarantee of free residence.

The constitution of the State of Jalisco authorizes the legislature to confer extraordinary powers upon the executive, but in no manner to suspend guarantees secured by the federal constitution.

If the States could decree such suspension and legislate on matters of individual guarantees, the union would exist only in name; the bonds of nationality would be relaxed, and the existence of the general powers would be almost superfluous, as they would be reduced to a complete nullity.

The sovereignty of the States should be complete in so far as relates to their interior regimen, but it should never be in opposition to the constitution.

In the internal affairs of the States the Union has in no way to intervene; but the Union should take care that in all and in each one of the States the federal constitution be observed.

We have always defended the sovereignty of the States, and our ideas on this point have been received with favor throughout the country, and even by the official press of Jalisco, particularly when we mention that the congress would arrogate to itself powers not belonging to it if it attempted to revise the elections of the functionaries of the State or the decree of the legislatures.

These reflections are suggested by the “considerations” of the decree of the legislature of Jalisco.

In so far as relates to the resolutions it contains, it is at once perceived that it is of no consequence that the legislature itself approves of its own acts, or of those of the governor.

It does not follow from such declarations, that there will be any controversy between the State and the federation, as the latter has not pronounced any decision in the matter, and thus the question does not come within the provisions of article 98 of the constitution, nor does any controversy exist upon which the supreme court of justice has to open trial.

The excitative addressed to the other States by the legislature of Jalisco, that they should sustain its pretensions, is very grave, because it is equivalent to inciting them to an unconstitutional course, that would subvert one of the fundamental bases of our political system, which consists in the supremacy of the Union and of the federal law. A bad interpretation of local sovereignty may have dangerous consequences. An exaggeration of the rights of the States produced the late civil war in the neighboring republic, placed it on the brink of ruin, and was most disastrous above all for the States that sought to place themselves above the Constitution.

It is to be hoped that the legislatures of the other States will not follow the path indicated to them by that of Jalisco, because that course would lead to discord, to anarchy, and the dissolution of the republic. It is also to be desired that the executive of the Union should take part in this matter, and make the States understand that they cannot place themselves above the constitution, and that their sovereignty depends precisely upon the deference they maintain for the federal law.

In the accusation and the trial of Mr. Gomez Cuervo there is no conflict or controversy between the federation and the State of Jalisco; there is simply an ordinary case of responsibility, which has to be decided by the grand jury, whose competency is undoubted, and has been recognized by the accused himself, when endeavoring to justify his acts, and in giving notice that he should make use of the right of defense.

The grand jury, in declaring the guilt or innocence of the accused, does not revise the decrees of the legislature of Jalisco, but decides whether the governor attacked or not the federal authority, and whether he violated or not the constitution by disregarding and disobeying the protection extended by the judge of the district in favor of citizens who were shot half an hour after there had been extended over them the judicial authority of the Union.

We do not wish at present to express any opinion as to what should be the decision of the jury, and will only remark that it would be undesirable in the highest degree, if any controversy should defeat the right to censure public functionaries and to make effective their responsibility.

In the jury there will undoubtedly be the utmost justice, as is indicated by the fact of having suspended its proceedings to give time for the defense of the accused, and there will also be sufficient calmness to proceed as behooves so august a tribunal, without being disturbed by the decree of the legislature of Jalisco.

The trial is to take place on the 28th. If the defendant should be absolved, he will continue in the government, full of prestige and respectability.

If he should be condemned, this decision will make manifest that the constitution and individual guarantees cannot be trampled upon with impunity; that the responsibility of public functionaries is not a vain promise; and that there really exist legal remedies against the arbitrary acts of power.

To oppose the taking place of this trial, as appears to be the intention of the legislature of Jalisco by its last decree, is a serious error, which almost involves the confession of the culpability of the accused.

Speech of Mr. Zarco, President of Congress, sustaining the accusation.

Mr. Zarco, president: I was unwilling to speak, as I wished to avoid saying anything against the accused. The part of defender is undoubtedly more attractive than that of accuser, and I would not aggravate the situation of Señor Gomez Cuervo. But such sentiments have been expressed, and such reasons adduced by the defenders of the accused that with much regret I am forced to make some rectifications.

The principal argument on which the defense is based is that the desperate situation in which kidnappers had placed Jalisco called for the conduct observed by the legislature and the governor, and to incline the mind of the jury to pronounce an absolution a public disorder is even predicted.

Notwithstanding the alarming symptoms which, since the commencement of this question, it is said have appeared in the State of Jalisco, notwithstanding the predictions of a disturbance of the public peace which are being repeated to us, the truth is that the accused has come to bow down before the jury, and that he has attempted to justify his conduct, and that the people of Jalisco remain and will remain tranquil because they will respect the sentence of the law.

Our duty, above every individual consideration, is to do justice, and to give no motive for the repetition and even justification of the calumnies always cast upon us of not knowing how to govern ourselves.

I have defended, through the press, the sovereignty and independence of the States in their internal regimen; I have sustained that congress has no right even to revise the decrees issued by the States; but if I have sustained this, I also sustain, as an indisputable truth, that the federal constitution and laws are above the laws and constitutions of the States, and if we ought to respect the internal government of localities we ought not to consent that the constitution shall be violated.

The counsel for Señor Gomez Cuervo has been very able; the good will of the audience has been captivated, and we all regretted that he had not a better cause to defend; but notwithstanding his brilliant style, he has not been able to diminish, even in one single point, the culpability of his client.

I have remarked that he as well as the other speakers who have taken up the defense of the accused, have occupied themselves in trying to do away with a charge which is not made against him. They have sought to sustain the right or obligation he was under of promulgating the decree of the legislature.

The charge is not that of having published the decree, but of having carried it into effect. He should have remembered that no law in the world is superior to the fundamental compact; he should have remembered what is provided by the law of 30th November, 1861, and should have availed himself of the opportunity afforded him by the judge of the district in decreeing the trial of protection.

The responsibility for those assassinations, which recall those of Tacubaya, it is sought to throw entirely upon the political prefect, because he tried and condemned the persons executed; and it is sought to establish that the governor had no obligation, and that it would have been an act of officiousness on his part to inform the judge of the district to what party he ought to have addressed himself to obtain the suspension of that butchery.

In the age in which we live, in a civilized country, fully constituted, we are told that the means to save the life of a man are not to be pointed out! The law of protection says, in its fourteenth article, (which was read,) and this was what the judge did, and the governor violated the constitution in consummating the executions, which were neither more nor less than assassinations.

I have demonstrated that the counsel for the defense has shown little ability in seeking to throw the responsibility upon the political prefect, and it is so because the responsibility rests on the governor.

It has attempted to be maintained that the law in question was the result of the situation, and that it was only issued against bandits; it has been asserted that it was given to assure guarantees; but it has been forgotten that the guarantees of society are composed of the union of the guarantees of individuals, and that executions like these terrify a society where lynch-law is unknown.

That law is a remnant of the barbarism which exists in the United States; because, unfortunately for humanity, in the country which appears to be the most civilized, there still remain remnants of barbarism. Lynch-law, which, for the honor of the jury, should not be invoked here, is an abuse which is committed when it is thought that the judge delays the punishment of the delinquent. Then the masses rise and attack prisons, and incendiarism and death are the consequences of that stupid law.

No! let it be said, in honor of our country, the Mexican people never will precipitate themselves into such excesses, or commit such assassinations.

It has been said that the victims of the 24th of February were wretched criminals. It is not noble to insult the dead, and we do not even know whether those unfortunate beings were kidnappers or not. They entered the prison without their crime having been stated, and it is thus recorded in the books of the alcalde. On what principles were they condemned?

The constitution prohibits the suspension of the guarantees which assure the life of man; the law for punishing bandits and disturbers of the public peace has respected that guarantee; and those who, like myself, seek for the abolition of the penalty of death, can scarcely tolerate an execution being carried into effect, even after the tutelary forms of legislation have been complied with, and our blood boils against assassinations such as those perpetrated in Guadalajara.

But it is said that the circumstances exacted the publication of the law and its fulfillment, and that the alarm which existed in that State ceased with the action of that sanguinary measure. It is not true. Before and after the promulgation of that decree, up to the present moment, I have received papers and letters from Jalisco, and there is not one of them which does not speak of robberies, kidnappings, and assassinations. This contradicts in the most solemn manner the absued and calumnious rumor that the malefactors had become more bold as soon as they knew that congress was trying the governor Gomez Cuervo for the acts of the 24th of February, and that calumny, gentlemen of the jury, I contradict in the name of the nation.

Appeal is made to the circumstances; and what circumstances can there be more grave than those wherein the life of a man is endangered? It has been said that the judge applied too late. The judge acted when they called him, and earnestly endeavored to do his duty, as in the proceedings it will be seen that orders were issued at five and five minutes after five in the morning.

The governor exculpates himself by saying that he had not condemned the culprits; this answer is like Cain’s, when God asked him, What has thou done with thy brother?

Señor Gomez has said that those men kept society in a state of alarm, and that if they had not been executed the people would have risen. It is not true that they would have revolted; they would have submitted to the law.

What order of a State is this, and what city, that could not consider themselves safe until five men should have perished?

It has been sought to make a charge against the federal authority for its conduct, and it is being endeavored to justify an authority which is the one to be blamed for the insecurity existing. It is insisted that the malefactors have been reanimated by the news of this trial. It may be that no band of robbers know that we are trying Señor Gomez Cuervo.

It has been said that the people do not comprehend their rights, and that there are vacuums in the laws. The people do comprehend their rights; and if there be any vacuums in the laws we must fill them legally.

It is said that public convenience demands the absolution of the accused. This is immoral, above all, when treating of judges of the fact. We have to act with justice, and without any personal consideration. Were we not to do so, society could not exist.

It is to be determined whether the constitution and the law of federal protection have been violated.

Agreed upon that fact, we have to vote against that delinquency. Public convenience, which I shall not invoke, requires that, convinced of the culpability of the accused, we shall condemn him.

The day when the people see that a governor, or other public functionaries, fall legally, on that day will be assured the great principles of the republic.

I beseech the jury that, looking at the question in the light of justice, the governor of Jalisco be declared guilty.

Mr. Zarco resumed the chair as presiding officer.

Speech of Mr. Sanchez Ramon against the accusation.

Mr. Sanchez Ramon. Sir, I know my incapacity, and it would make me abstain from speaking, did not the present question involve an event the resolution of which may contribute in a great measure to the well-being or otherwise of the State of Jalisco; and if I resolve on speaking, it is because I think it just, since I am in duty bound to do so as one of the representatives of that State.

The governor of a great State has at last been brought to the bar of the accused, before the grand jury of the nation. The accusation against him on this occasion, as on others, is nothing more than a means invoked for depriving him of the post to which he was elevated by an immense majority of the inhabitants of Jalisco. The present question has nothing new in it; it is the same that has been already presented on other occasions to congress under different forms, but the same ends have always been sought by the persons who accuse him.

In Jalisco, more than in other States, it has unfortunately been seen that some of its sons, legally defeated in electoral contests, forgetting or disregarding sound republican maxims, have not been willing to rest satisfied, and, without regarding the desolating and bloody past, without taking into account the future of the country, by their discontent have become the sworn enemies of the government, encouraging disunion and discord, putting obstacles in the way of the administration, and seeking to make impracticable even the measures necessary for the preservation of order and of peace—only to make unpopular and displace the elected of the people.

If a frank, reasonable, and just opposition is convenient and useful, a violent, passionate, and unjustifiable opposition cannot but produce evils, and evils of incalculable transcendency.

The accusation which to-day, invested with an appearance of decorum, dignity, and respect to our fundamental law, occupies the attention of the grand jury, is nothing more than a political proceeding, better combined and better directed than the other steps that have previously been taken for the same purpose—that of removing from his post the man elected by the people.

That is, in reality, the question, and not one of true constitutional right, which animates the promoters; for in their place not only would they have acted in the same manner that the governor has acted, but they would even have gone further, as Jalisco has had examples when those who act to-day as accusers held office or had great influence with the government.

All the members of the jury know the afflicted situation of Jalisco when its legislature declared the circular of the 12th March to be in force, as, besides the news which through distinct channels was at that time brought to the capital, the exact account of it made by the defender of the accused has just been heard. Nevertheless, permit me to state that those circumstances were so critical, on account of the kidnappings, as was reported by the press—and I have letters in my possession proving the same—that the idea occurred to many citizens, if the authorities did not take extraordinary and energetic measures for re-establishing guarantees, of putting into practice the terrible lynch-law, which, besides being discreditable, would have brought the government into many serious difficulties. The government had the cry of the opposition against it; it saw that the measures it took were insufficient to put an end to the evil, or even for calming it. The citizens who were kidnapped, when, after having sacrificed their means, they were returned to society, frightened and cowed, did not dare to make any revelations to the authorities, the same thing happening, as here, that the few who have met with that misfortune refuse to afford the information necessary for guiding the police, in order that they may apprehend these evil-doers—and all through the well-founded fear that a speedy and severe punishment would not be applied to them.

It is also known that the population of Guadalajara, tired with suffering, presented itself before the legislature to ask for the law, which at last it conceded, viz., that the above-mentioned circular should be declared in force, which law, if not similar, is very like that of the 3d of June, 1861, which, as I have manifested to congress, is the law in force against kidnappers. Five of these were apprehended and tried in accordance with said circular, who, on conviction and after confessing their horrible crime of kidnapping, were condemned to expiate their crimes on the scaffold.

A few moments before their execution it was sought to protect them through the federal authority but, instead of addressing the proper officer, the application was made to the governor, and it is known why, after all, the protection was not verified. In those circumstances it was fortunate, because, if the kidnappers had been shielded, Guadalajara and the whole of Jalisco would have remained unprotected, as the adjoining States, with laws similar to the one that was put in practice in Guadalajara, freed themselves from that plague without being impeded by federal authorities, such as those in Jalisco, who, overzealous for guarantees in favor of kidnappers, were indifferent about guarantees for society at large.

The former insecurity would have become greater, because the bandits, emboldened by the kind of protection they found in the opposition, instead of flying terrified after escaping being caught by the police, would have joined with others of the neighboring States and have returned with fresh vigor to give full effect to their infernal plans.

The government maintained itself firm in the idea of saving society, and society has shown its gratitude by a multitude of manifestations which it has addressed to it; and this is what has given rise to the accusation which now engages the attention of the grand jury.

Are not kidnappers deprived of their constitutional guarantees which it was thought was inculcated by trying them in conformity with the law declared to be in force by the legislature of the State?

If the law of 3d of June, 1861, is the one in force, and if, according to that law, they are to be tried in conformity with certain articles of the law of 25th January, I cannot see how the constitution can be infringed. But if the exigencies of the critical and exceptional circumstances in which Jalisco was placed did not allow the governor to act otherwise than as he did; if the guarantees consigned in our code are any of them, or have been, suspended with respect to kidnappers, the inculpability of the governor of Jalisco, as regards the charges brought against him, it appears to me is evident.

But supposing that what I have said is of no value, can the grand jury declare the party accused culpable for having fulfilled his duty towards his immediate superior, the legislature, for whom he acts, the responsibility resting only on one party, and the one cannot be punished and the other left unpunished? It is clear that this is not so; and this alone is sufficient that the jury should give their vote against the accusation.

With respect to the feeling which may be entertained on account of the decree No. 88 of the legislature of Jalisco, which, as it has just been seen, is a very distinct thing, I will say that now the legislature is entirely distinct from Señor Gomez Cuervo, and that he respected the supreme measures of the congress, as his own defender has shown; and I hope, from the rectitude and good sense of which the members of the grand national jury have given proofs, that neither this occurrence, nor influences of any kind, will lead them to deviate from the right path traced out by justice for the well-being of society.

I must add that it appears just that the governments of the States should possess more liberty in providing for their internal preservation in critical cases, without having to apply to the general government; for if the federation is to be desired, it is not because it signifies a band of iron that restrains them so that they cannot move, even although the social edifice may fall and involve them in its ruins.

What is to be regretted is that, there being a determined mode of initiating these reforms in our code, another of an irregular course should be appealed to, such as that the supreme court of justice should open the respective trial in the controversy brought on by the decree No. 88, to which I allude.

Sir, these spontaneous manifestations of the people of Jalisco which have reached the grand jury show very clearly what the question is. In their name I ask, in behalf of the well-being of those people, a vote of absolution for their constitutional governor, Antonio Gomez Cuervo.