[From the official paper of the constitutional government of the Mexican republic, Paso del Norte, November 9, 1865.—Translation.], November 8, 1865

[From the official paper of the constitutional government of the Mexican republic, Paso del Norte, November 9, 1865.—Translation.]

Department of Foreign Relations and Government, Office of Government–Section first.

CIRCULAR.

I send you two decrees issued to-day by the citizen President of the republic, relative to the continuation of his office, and the manner of filling, if he should fail while the war prevents a new constitutional election.

Since the 30th of November, 1864, when the government decided, in Chihuahua, that the presidential term of four years did not expire at that time, but one year after, and the opinions of many public functionaries were adduced in that resolution to show that the powers and authority of the President should be prolonged to an indefinite period beyond the ordinary term as long as the extraordinary situation caused by the war should render it impossible to hold a new election; the government gave notice that the question should not be taken up at that time, but wait till circumstances should render it necessary to be decided.

As that time has now come, and the decree of this day has decided it, with sufficient reasons, I will only make a few remarks upon the articles of the federal constitution, to which the decree refers, and they are as follows:

“Art. 78. The President shall enter upon the discharge of his duties the first of December, and shall remain in office four years.

“Art. 79. During the temporary or absolute default of the President of the republic, before the newly elected is presented, the president of the supreme court of justice shall exercise that power.

“Art. 80. If the default of the President be absolute, a new election shall take place, in conformity with article 76, and the newly elected shall exercise his functions till the last day of November of the fourth year following his election.

“Art. 82. If, for any reason, the election of President is not held and published by the first of December, when he is to be replaced, or the elected is not ready to enter upon the discharge of his duties, the former shall nevertheless cease, and the supreme executive power shall vest temporarily in the president of the supreme court of justice.”

These articles, as the decree of to-day says, are all that treat of the duration of the functions of the President of the republic, and of the mode of supplying his place. In them, not only in spirit, but in a plain literal sense, it is seen that the constitution makes no provisions, and refers only to cases where the election has already been held, or could have been held, and orders it to be done immediately.

In fact, it is seen by article 79 that the president of the court shall exercise the power in default of the President of the republic, before the newly elected presents himself; that in article 80 a new election is ordered; and in article 82, in more precise terms, it is repeated that the president of the court shall only be charged provisionally with the executive power, and shall only hold it until a new election can take place.

All the articles having this meaning, it is natural and necessary to attribute the same signification to the precept contained in 82, when it is established that, at the end of the ordinary term, if for any reason the election for a new President had not been held and published, the former should yield, and the president of the court assume the executive power temporarily. This precept supposes, as all the other articles do, the possibility of holding an election, and wished to provide for the case when no election had been held, although it could have been done.

Without attempting to make all the articles mean the same, the signification of 82 is plain enough to show that it was to apply only when an election was possible; for, in case no election was held and published, its precepts could not be applied, nor to the case where there had been no election or publication, or an election without publication.

The idea alluding to the possibility of an immediate election is plainer in article 82, where it says the executive shall be confided to the president of the court, who shall hold it temporarily. These two words were used, though either one of them would have been enough, to signify that the case was not thought of where the president of the court should hold the power long or for an indefinite period, but that he should resign it, or only hold it till the publication of a new election already held should be made, or a new one be immediately held. It cannot be supposed that a temporary office would be held for an indefinite period; nor that the supreme executive power would be intrusted to an officer already elected to another office for the term of six years, and the period of which had almost expired.

It would be clearly wrong to give that meaning to an article of the constitution, when it would violate other articles of the same constitution. This would be the case if article 82 were so interpreted, even if an election were not possible; because other articles would be infringed, intrusting the supreme power to the president of the court, to hold it temporarily, till the new President elect should present himself, or till a new election could immediately take place.

It is evident that the meaning of article 82 is to prevent a President of the republic from abusing his power and authority by hindering the newly elected from taking his seat, or stopping an election when it could have been held. It could not possibly be applied to a case of this kind, where no act of the President, but war, prevented an election from being held. As there is no cause for supposing abuse of power in this case, it is wrong to believe that the constitution intended to destroy the power it created, or to take it from one who deserved it most through the confidence of the people, and give it to another who was to assume it only under the most urgent circumstances prescribed by the constitution.

It is not strange or new that certain precepts of the constitution intended to apply in times of peace should be found inapplicable in times of war. The only article of the constitution that looks to this case is 128, which says: when a rebellion or war interrupts the execution of its precepts, “the observance of them shall be restored as soon as the people regain their liberty.” For this reason it is not strange that the articles of the constitution in reference to the duration of the functions of the President and of the mode of filling his place are not now applicable. In these articles a principle was laid down, and then the rules necessary to carry it out. In article 78 the term of four years was established as a principle for the duration of presidential power; and in articles 79, 80, and 82, rules for the renovation or substitution of the presidency, by default or at an end, were laid down. In cases where this principle is inevitably suspended, by war for instance, the constitutional regulations cannot be carried out or enforced till peace is declared.

In a case like the present, when war is waging, the supreme necessity of preserving the government makes it just and necessary to continue the functions of him who is the chief executive. If war makes it impossible to elect a President of the republic while the president of the court is holding the office temporarily, it is certainly right to prolong the office of the President to any period required, but only in case of absolute necessity.

As it is now impossible to hold an election, the president of the court would have to be put into power, and serve for the remaining time of his six years, if it were not necessary for him to continue in power beyond that time, and thus violate the constitution. He can exercise the supreme power but for a short time, only till an election can be held; and if that cannot be done, he would have to hold over, even beyond the term of his office as supreme judge, contrary to the letter and spirit of the constitutional regulations.

So the impossibility of holding an election, at the present time, on account of war, makes it absolutely necessary to prolong the presidential powers, either in the person of the President himself, or in the supreme judge. If this prolongation is inevitable, why not continue it with the President elect, the choice of the people, and not with a judge, who was to hold it for a limited time, till a successor could be elected? Undoubtedly it would be more proper and conformable to the constitution to prolong both offices, according to the will of the people; and as the constitution in time of peace wanted both the offices to be filled at the same time, so that the government should never want a head, would it not be more proper to keep them filled in time of war, when there is greater danger from anarchy? On the other hand, if there was any doubt about this being the most conformable to the spirit and letter of the constitution, the legislative power only could solve it; and as the citizen President of the republic now holds that power, delegated to him by congress, with unlimited extent, to do as he pleased in war, without other restriction than that of saving the independence and integrity of the territory, the form of government established, by the constitution, and the principles and laws of reform.

As this question of prolonging the power of the President is settled, we must attend to the case of default or substitution. For this reason it was necessary to issue the other decree today, in relation to the fact that General Jesus G. Ortega remains in a foreign country, without leave or commission, has given up his place as president of the court, and resigned his rank in the army. He acted in the same manner once before at San Luis Potosi, giving up his place as constitutional president of the court of justice and assuming that of constitutional governor of the State of Zacatecas, without any authority or license. In the resolution made by the government at Chihuahua, November 30, 1864, it was explained why it was presumed he had resigned the presidency of the court. Article 118 of the constitution prohibits the holding of two elective offices at the same time, but permits the elected to choose which he prefers. Although the article refers to offices of the general government, it must here apply to State offices also. Notwithstanding this, it was determined in Chihuahua that General Ortega should retain his office of president of the court, for the national interest, so that, in default of the President, the judge could take his place. He was not called constitutional president of the court, nor could the government give him that title, for he had resigned it in San Luis Potosi, and could only regain it by a popular election; but the government, using the full power conferred upon it, declared that General Ortega was vested with the character of the president of the court. In this the government only followed a precedent of congress, that had appointed on one occasion a president of the court, when a constitutional president of the court was wanting.

In the copy annexed to this circular are shown the terms on which a license was granted to General Ortega, a few days after, to join the cause of independence as an officer in the interior of the republic. Against the express terms of this license, instead of going where he was needed, he left the country and went abroad, being guilty of two offences— one for giving up the presidency of the court, and the other for deserting his flag in time of war, he being a general.

In regard to the responsibility of public functionaries for dereliction of duties in the exercise of their offices, article 105 of the constitution says that congress, as a criminal court, shall decide the guilt and impose the penalty upon all such offenders. The responsibility in ordinary offences, not military, is considered in article 104, where it says congress shall decide the jurisdiction, relieve the man of his office, and consign him to the civil courts.

Among the powers conferred upon the government by the decree of the 27th of October, 1862, there was the prohibition to violate title IV of the constitution, which treats of the responsibility of public functionaries. The object of this restriction was that they should not be prosecuted by undue or arbitrary means, contrary to the provisions of the constitution; but this did not mean that they should not be prosecuted at all, only that the usual proceedings should be resorted to to enforce responsibility. The government has made use of this power delegated to it by congress, in punishing the treason of Santiago Vidaurri, and in other necessary cases; for it cannot be supposed that guilty officers would remain unpunished for political derelictions or common offences, prejudicial to the cause of independence, and in time of war.

For the serious reasons in the decree of to-day the government has decided that it was just and necessary to declare his responsibility. For giving up the place of president of the court, it has been declared that he shall present himself, as soon as he returns to the republic, and undergo his trial for that offence. For the crime of deserting his flag in time of war, it is also declared that he is subject to trial. Under the circumstances it was absolutely necessary for the government to notice General Ortega’s responsibility. He has not only remained out of the republic when it was his greatest duty to remain in it, to remedy the inconveniences of a headless government in case of the President’s default, but he has also gone without permission, and remains away, not deigning to say when he expects to return. His conduct has hindered the proper course of government by his absence, and for this reason it has been found necessary to give this just attention to his responsibility.

The one who has had charge of the government for several years during the war, so far from any pleasure or interest in his charge, it is irksome and dangerous, and the only motive the President has in issuing this decree is his firm and constant determination to do his duty to his country and to the people who elected him to the last.

[Translation.]

Department of Foreign Relations and Government, Office of Justice, Interior, and Public Instruction–Section first.

On the 28th instant General Jesus Gonzalez Ortega, president of the supreme court of justice, directed the following communication to this department:

“As the supreme court of justice, of which I am the president, is not in session in this city, nor can it meet on account of the war and other circumstances now disturbing the republic, and desiring on my part to do my duty as a Mexican soldier, as I have always done since the beginning of the war with France, I beg you to remit this communication to the citizen President of the republic, that he may grant me, as president of the supreme court of justice, the corresponding license, by the power with which he is invested, to repair to the interior of the republic, or elsewhere within Mexican coasts, to continue to defend with arms the independence of Mexico.

“As the interior States are occupied by the invaders, I may have to pass some sea or foreign territory to realize my desires, and I hope you will inform the citizen President of this.”

In reply to the above, the following communication was addressed to-day by this department to the said president of the supreme court of justice:

“In view of your request for leave of absence, as president of the supreme court of justice, to go to points not occupied by the enemy, in order to continue to defend the independence of Mexico with arms, the citizen President, in ministerial council, has determined to grant you leave for an indefinite time, till you may choose to return to the seat of government, or till the government calls you or gives you some commission; you may in the mean time go directly by sea or over foreign territory to points of the Mexican republic not occupied by the enemy, to continue to defend the national independence with whatever forces you can raise, on condition that you will act in concert with the governor and military commander of the respective State, in your military operations, or with other chiefs of republican forces, in repelling the enemy, always by command of the political or military authorities from the supreme government, or its delegates properly authorized for the purpose.

“I send you this by supreme command, in answer to your despatch of the 28th instant.”

And I have the honor to transmit it to you for your information and corresponding action.

Independence, liberty, and reform! Chihuahua, December 30, 1864.

IGLESIAS.

The Citizen Minister of Foreign Relations and Government, Present.

Paso del Norte, November 8, 1865.

A true copy:

Decrees of the Congress of the United Mexican States investing President Juarez with extraordinary powers.

No. 1.—1. Law of 11th December, 1861.

2. Speech of president of congress.

3. Explanatory article, secret session.

4. Law of 7th June, 1861, referred to in above.

5. Articles of constitution, authorizing extraordinary powers.

No. 2 —6. Law of May 3, 1862.

No. 3.—7. Law of October 27, 1862.

No. 4.—8. Law of May 27, 1863.

1.—Law of December 11, 1861.

Department of Government–Section first.

The citizen constitutional President of the republic has been pleased to address to me the following decree:

Benito Juarez, constitutional President of the United Mexican States, to the inhabitants of the same, maketh known that the congress of the Union has thought proper to decree the following:

Article 1. The law of the 7th of June of the present year, which suspended certain of the guarantees stipulated in the constitution, is hereby declared to be in force, and the provisions of the same are hereby extended so as to include the suspension also of the guarantees contained in articles 11 and 27 in their first part.

Article 2. The executive is hereby fully authorized and empowered to take such steps and adopt such measures as in his judgment may be necessary, under the existing circumstances, without other restriction than that of saving the independence and integrity of the national territory, the form of government established by the constitution, and the principles and laws of reform.

Article 3. This suspension of guarantees and the authorization conceded to the executive by the present law shall continue until thirty days after the next meeting of congress, to whom account shall be given of the use that may have been made of these powers.

Dated in the hall of sessions of the congress of the Union in Mexico, December 11, 1861.

VICENTE RIVA PALACIO, President of Congress.

Juan N. Guzman, Secretary.

M. M. Ovando, Secretary.

Wherefore I order that it be printed, published, circulated, and observed.

National Palace of Mexico, December 11, 1861.

BENITO JUAREZ.

The Citizen Francisco J. Villalobos, Chief Clerk in charge of Department of Government.

And I communicate the same to you for your intelligence and the consequent ends.