Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Third Session of the Fortieth Congress
Mr. Plumb to Mr. Seward.
Sir: In a letter under date of the 19th ultimo, which I have received to-day from Mr. Ulrich, the efficient consul at Monterey, he has inclosed to me a copy of the Periodico Oficial of the government of the State of Nuevo Leon, of the 18th of last month, which contains the sentence pronounced under date of the 11th of November, by the supreme tribunal of justice of the State, in the matter of the outrage inflicted upon certain citizens of the United States at Monterey, in the month of April last.
I transmit to you herewith the copy so received of the said sentence.
I have the honor to be, very respectfully, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D, C.
No. 33.—OFFICIAL GAZETTE OF THE STATE GOVERNMENT OF NEW LEON, MONTEREY, NOVEMBER 18, 1868.
Sentence pronounced by the first chamber of the supreme court of justice of the State in the trial instituted on the petition of the American citizens, Ernest F. Luck-hardt and F. F. Potter, for abuses committed in the prison of this city.
Monterey.November 11, 1868.
This cause being looked into, on the application of Ernest F. Luckhardt and F. F. Potter, the first married, aged twenty-five, merchant, residing in this city, and citizen of the neighboring northern republic; and the second, also citizen of this republic, with residence in New York, bachelor, merchant, twenty-four years of age, in consequence of their having been taken on the night of the 21st April last, in company with four other friends and countrymen, to the public prison, where they were all grossly insulted in language, especially the two complainants, who suffered in addition some blows, struck by various prisoners with a cowhide. In view of the declarations made by them and their companions in prison, Santiago P. Montgomery, Samuel B. Halhirens, Lewis P. Zappe, and Enrique Reis; those of the corporal and policemen who took them to the prison; that of the secretary of the government, Narcisso Davila; those of J. O. Margain, Augustin Valadez, Cayetano Arenal, and Alberto Fahremberg, who also were in company with those apprehended until the moment when they were led to prison; that of the Alcalde Juan N. Vara, and of the arrested Adrian Olguin, Pedro Marroquin, and Lorenzo Chapa, together with the other declarations made by the witnesses examined in this brief, and afterwards in detail, at the request of the defendent, Alcalde Vara, and the prisoner, Lorenzo Chapa; having examined the finding of well-taken pronounced on the other hand against the alcalde, against Adrian Olguin, Marroquin, and Chapa, the confessions and allegations taken against them in writing, the desist-ance which complainants afterwards made, beginning at page 89, in what relates to these offenders, reserving their right to seek testimony relating to the matter, and to direct their action against the secretary of the government, who ordered the police to conduct them to prison, hoping, however, that justice would be done in applying to the first such punishment as may be in accordance with law; having considered the papers presented by the defenders of the accused, the sentence pronounced in first instance, the appeal interposed, the supplementary petition of the fiscal, and what has been since alleged in writing of the utterance of irritating language and expressions in the public streets; and finally, in view of the whole matter which has been passed upon; and considering—
1. That the matter brought before the alcalde only included Juan Vara and the parties arrested, Olguin, Marroquin, and Chapa, to whom alone in consequence the sentence in first instance ought to apply and could apply.
2. That the charge is well proven which is made against the alcalde as to his authorization of the use of the cowhide delivered by him to those prisoners, whom he distinguished with the names of president and aids, that they might use it inside the prison for the purpose of keeping order and making themselves respected, without it [Page 632] serving as an excuse for him that he found this practice in use when it was received from the alcaldes, because as explicit as is the 21st article of our constitution which prohibits it, he ought, if the use of the cowhide was not abstained from, to have at least consulted with the chief alcalde, and have given notice of the usage to the ministers who weekly make and have made visits to the prison, which it does not appear that he has done, thereby incurring voluntarily the responsibility for its continuance, and even anticipating and authorizing that reprehended usage.
3. That it is also proven and admitted that on the night of the 21st April last the visits provided for in article 11 of the regulations were not made, nor on the morning of the following day early report attended to, as it should have been according to article 92, which duty if it had been attended to might probably have averted the maltreatment which Potter and Leinchardt subsequently received, because it is probable that complaint would have been made by themselves of what had previously happened to them.
4. That from the declaration of the captives, it appeared without contradiction that it was the general custom to set the prisoners brought in during the night to the cleansing of the prison, which they constantly did, and, as appears, always had done, it following from this that indirectly those were destined to these labors, although merely under detention, which should not be so, as it is well known that there is set aside for these parties a locality distinct from that allotted to captives, under punishment and sentenced, and although from want of room these persons were placed within, the gratings in the hall of the prison, according to the regulation, the alcalde should never have permitted that they should have been compelled to discharge police duties and the cleansing of dungeons and privies.
5. But supposing the general practice of putting to this cleaning work those who should be brought in during the night, and that the direction which the alcalde had made to Nelquin for those detained on the night of the 21st, neither to him or his companions, Marroquin and Chapa, can be laid the charge of having destined Leinchardt and Potter to take out from a dungeon to the pit the barrels of filth, and to Marroquin having closed the pit against them, as well as Kahlirens and Zappa, because they were not under obligation to observe spontaneous considerations which in truth could not be looked for or expected from persons of their condition.
6. That in the same manner, also, the president Olquin did well in rebuking Leinchardt because in the night he passed his urine into the vessel which contained the water made use of in the prison, even though it might be supposed that he was ignorant of that circumstance and supposed the vessel was intended for a very different purpose and proper for the use which he made of it.
7. That assuming the delivery of the cowhide to the president and assistant named by the alcalde to prevent disorders, it is neither just nor lawful to make these prisoners liable for the use they may have made of it, because they were merely executives, and in their sphere were not in situation to remark upon or oppose the mandate of their superior, and the more when this mandate was only in respect of chastisement which although odious and repugnant perhaps was considered as very convenient and useful to preserve order without endangering the life of any person soever.
8. That notwithstanding this, it is observed in this case, and it is proved by what is said by the detained, and even may be inferred from the declarations of the offenders, that there was excess in the use of the cowhide, and chiefly on the part of Marroquin and Chapa, with the tolerance of President Alguin, who, however, has not established the disobedience of Leinchhardt when he gave him a cowhide, it being notable that he would occupy himself steadily molesting Potter and Leinchhardt in preference to other detained parties, and even other prisoners, and subjects for correction, which also leads us to understand the prejudice which he entertained against them, and the injurious language he uttered against them.
9. That for such excess they should be chastised with proportionate penalties, regulated by the opinion of the writers noting the laws, especially that of July 21, 1833, which speaks of light offenses and authorizes the practice, according to which offenses of this nature have never been punished in the manner which was determined on in the sentence of the 1st instance, and less if the class of persons was considered on whom were inflicted the injuries and blows, the motives and other very different circumstances; in fact, all and of distinct character which intervened in injuries of speech and of action which take place between individuals.
10. In regard to what relates to the shortcomings of the alcalde, the penalty should be applied which is established by law 10th, and the end of the 6th title, 38 book 12th, of the new compilation, because in effect that functionary is responsible, although indirectly, for the maltreatment which the detained Leinchardt and Potter received, taking in estimation his assured authorization of the use of the cowhide, for failure in visiting the prison on that night, and for not having provided against the assignment of those detained, to any service.
11. That the contestants having withdrawn any application as to what relates to the alcaide and prisoners, judicial costs cannot and ought not to be taken into account as [Page 633] against them which have not been demanded from them by the magistrate of the first hall. Passing judgment definitively, I say that the sentence passed ought to be reviewed and corrected, declaring, as it is declared—
1. That for a year and a half, reckoned from the 21st of May of this year, when in this cause the order for imprisonment was made, the alcalde, Juan Vara, in rebuke for the errors and omissions he has fallen into, is prohibited from acting in this service in any of the prisons of the State.
2. That the captives Adrian Olguin, Pedro Marroquin, and Lorenzo Chapa, must suffer for the maltreatment they gave to the arrested, Leinchardt and Potter, a penalty of forty days at the public works, reckoned from the next to the conclusion of the sentence which passed upon them for the offenses in respect to which they are now on trial.
3. That whenever the testimony in this cause, or of part of the attending circumstances, is sought for by the complainants, or by other parties interested, it shall be furnished in the manner, and on the terms, and for the uses permitted by law.
4. That it be made known to the alcalde of the prison, that he must, in all cases, provide for placing parties under arrest in a place apart without employing them in another place, and if that cannot be completely done in all cases, they must not be employed in the police duty of cleansing the prison and its courtyard. Let this be noted, and of those who neglect the matter let account be made.
This I determine, order, and sign, and bear witness of as citizen magistrate.
To-day we publish, in the appropriate part, the sentence pronounced in the first chamber of the supreme court of justice of the State, in the cause drawn up against the parties who committed, in the prison of this city, various abuses of which some foreigners were victims; abuses which the Atalaya denounced, although with noticeable exaggeration, and about which the supreme government of the republic sought information.