No. 244.
Mr. Morgan
to Mr. Frelinghuysen.
Mexico, February 18, 1884. (Received March 6.)
Sir: Your dispatches Nos. 477, 12th December, 1883; 492, 17th January, 1884; 494, 19th January, 1884, with their inclosures, have been received. They all refer to the case of Capt. George Caleb, late master of the Adriana.
I regret to see that the Hon. John F. Miller, a Senator from California, appears to be of the opinion that the case of Captain Caleb has been neglected by me. I think I have done everything in my power to protect him in his rights.
You will remember that the investigation of his case was intrusted to a special agent of the Department of State, and that in transmitting to me a copy of that agent’s report to you, you informed me that Captain Caleb was represented in the appeal by counsel who appeared zealous in his behalf, and that the future legal proceedings which might be taken in his behalf would be reported directly to you. (See your dispatch No. 441, 16th August, 1883.)
When that dispatch was received Captain Caleb’s case was pending on appeal in the court at Culiacan. I was subsequently informed by Consul Viosca that the appellate court had affirmed the sentence of the court below, and this I communicated to you in my dispatch No. 683, 3d September, 1883.
Whether any appeal was taken by Captain Caleb from the judgment of the court at Culiacan or not I have not been informed.
When I knew that the case was before the Culiacan court I requested Consul Kelton, at Mazatlan, within whose consular district Culiacan is, to send me a copy of the record of the case should the judgment of the lower court be affirmed, in order that I might be able to ascertain whether the proceedings against him had been legally conducted. (See my dispatch No. 662, 9th July, 1883.) The copy of the record asked for has never been received by me. An inspection of the records of the judicial proceedings against him was the only “investigation” of his case possible to me. However, on the receipt of your dispatch, No. 447, I telegraphed Consul Kelton to inform me whether Captain Caleb was in prison still 5 and, if so, where.
Consul Kelton replied that Captain Caleb was still at La Paz; that the “expediente” (record) of his case had been sent to the supreme court here, and that Captain Caleb, through the minister of justice, had applied to the President for a pardon.
Before receiving the consul’s reply I had, in an interview with Señor Fernandez, again called his attention to Captain Caleb’s case, and urged upon him his release. I called his attention to the man’s age, his helplessness, his ill health, the necessity he was to his family, and to the fact that the Adriana having been confiscated and sold, everything he had had been taken from him, and that this, added to the fact that he had already been in prison a year, appeared to be a sufficient punishment for the offence which he was charged with having committed. Señor Fernandez then informed me (and I learned it for the first time) that Captain Caleb had petitioned for a pardon, and that in his petition he had confessed his guilt.
I then urged upon him that even if he were guilty (upon which I expressed no opinion) still he was not more guilty than were the Mexicans [Page 349] engaged with him in the enterprise which resulted in his capture and the sentence against him, and that it appeared to me the height of injustice that he (an American) should be punished for an offense while his partners (Mexicans) who had been arrested with him had not even been prosecuted therefor. Señor Fernandez said that he would converse with the President upon the subject and see what could be done. In this interview” I asked him if he would procure and furnish me with a copy of Captain Caleb’s petition to the minister of justice for a pardon. He promised me he would do so. The main difficulty which Señor Fernandez appeared to find in the way of Caleb’s discharge was the apprehension that as soon as he was set at liberty he would present a claim through this legation for damages.
On the 1st of January, 1884, I saw Señor Fernandez again. He informed me that he had brought Captain Caleb’s case to the notice of the President, who was favorably disposed to granting him relief, but that he could not pardon him, because, by the law of Mexico, no pardon can be granted until two fifths of the sentence pronounced against the applicant has been executed. I again urged upon Señor Fernandez such further reasons as occurred to me for his release, and again asked him for a copy of Caleb’s petition for pardon, which he again promised to send me as soon as he had received it.
In the mean time I called on Señor Romero Rubio and asked him what steps could be taken for Caleb’s protection in court in case he had appealed, or before the minister of justice in case he had asked for a pardon.
Subsequently he informed me that he had had an interview with the minister of justice, who was favorably disposed, but that his application for pardon could not be acted upon unless the judgment was final, and he did not know whether it was final or not. Even if it were, however, it would not be in the power of the President to grant it for the reasons which Señor Fernandez gave me, and which I have set forth above. But he said that the President had it in his power to commute the sentence, and that if such an application were made it would be favorably considered, and, in his opinion, that was the best course to pursue. This application, he said, could be made by any person. In this interview I asked Señor Rubio if the minister of justice had shown him Captain Caleb’s petition for pardon, and if it really contained an acknowledgment of his guilt. He replied that he had been shown the petition, and that it did contain the acknowledgment.
It was after this interview with Señor Rubio that I received Consul Kelton’s telegram of the 29th December, 1883, referred to above, informing me that Captain Caleb was still at La Paz; that the “expediente” (record) of his case had been sent to the supreme court here; and that he had applied to the President, through the minister of justice, for a pardon, so that I was assured of his having petitioned for clemency by Señor Fernandez, Señor Rubio, and Consul Kelton, while his acknowledgment of guilt was stated to have been made by the two parties first named.
I then employed Mr. Arthur P. Cushing, a member of the Boston bar and a practitioner here, to examine the files of the supreme court with the view of ascertaining whether the record in Captain Caleb’s case was on them, as I wished to be informed whether it was there on appeal by Caleb, or whether it had been sent there in the usual course of the judicial proceedings as practiced in the country.
Mr. Cushing informed me that after diligent search he could not find that the record had ever been sent to the supreme court.
[Page 350]I then asked Mr. Gushing whether, under his own responsibility, he would present a petition to the minister of justice asking on behalf of Caleb a commutation of his sentence. This, it appeared to me, would be the shortest and most practical way of getting him out of his trouble, for if his sentence could be commuted to a fine, to be paid in the obligations of the Government (as I am assured it could be managed), it will amount to only a small sum in reality. Mr. Cushing agreed to do so, and he did so. Then he called on me and said that the minister of justice desired that I should authorize him to appear for Caleb. This I declined to do, for the reason that, although it had been positively stated to me, both by Señor Fernandez and Señor Rubio, that they had seen his admission of guilt, I could not bring myself to believe that after all his protestations of innocence to this legation he could acknowledge that the offense for which he was suffering had been properly charged against him, and I did not propose to do anything which would have the appearance of an acknowledgment of his guilt. It was then stated to Mr. Cushing that a telegram from Caleb to him authorizing him to make the appearance above referred to would suffice. Mr. Cushing caused Caleb to be telegraphed on the 21st ultimo to that effect. To this telegram no answer has been made, except that Caleb telegraphed me on the 8th instant that he had telegraphed the minister of justice ratifying his petition for a pardon made in October last, and asking me to second it.
In my dispatch No. 662, July 9 last, I informed you that I had requested Consul Kelton to procure and transmit to me, if possible, a copy of the record of the proceedings in the court of Culiacan, in case the judgment of the court at La Paz should be affirmed. Consul Kelton has not complied with my request. I inquired of him the reason why, in a dispatch which I addressed to him on the 5th of January, 1884. Consul Kelton, in his dispatch of the 4th of February, explains how it is that my request was not complied with. His residence is 200 miles distant from Culiacan, which prevented him from giving it his personal attention. He, however, wrote to the consular agent at Altata, as well as to a party at Culiacan, upon the subject. The consular agent at Altata had resigned, and the correspondent at Culiacan had left the place.
Neither have I been informed nor have I been able to ascertain whether Caleb appealed from the judgment of that court.
As in in your dispatch No. 441, August 16, 1883, I was told that Mr. Galan, Caleb’s counsel, would correspond directly with the Department upon the result of that trial and any subsequent proceedings in the case, I assumed that he would comply with his instructions, and that I would receive instructions in respect thereto, but I have received none; nor have I heard from him in respect thereto. It was therefore impossible for me to take any further official steps in the matter.
Thinking that Señor Fernandez had forgotten to send me the copy of Captain Caleb’s petition for a pardon, which he had promised, I addressed him a note on the 21st of January, reminding him of his promise.
On the 7th instant I received his note of the 4th, transmitting to me a copy of the petition for pardon, in the concluding part of which Caleb says:
I supplicate you to pardon me the crime of smuggling, committed in December of the year last past, in having transferred effects from the schooner Adriana, in the bay of Pulmo, to Los Frailes, in Lower California.
Smuggling, according to the laws of Mexico, consists, among other things, in—
The discharge, transhipment, or transportation of merchandise in the ports or on the frontiers (of Mexico) without the previous knowledge of the respective customs officials, and without having fulfilled the requirements of this tariff law. (Section 3 of article 86 of the Tariff.)
The penalty for the infraction of this law, when the goods smuggled are liable to a duty of $200, is five years’ imprisonment.
You will have observed that Captain Caleb in his petition for pardon admits that he transported effects from his vessel while in the bay of Pulmo to Los Frailes, in Lower California.
Section XV of article 85 of the constitution gives to the President the power to pardon offenders in conformity with the law. The law (Codijo Penale, art. 287) provides—
- (1)
- That a pardon may be granted unconditionally when it is asked for by a person who has rendered important services to the nation, when the Government considers it necessary to the public peace, or when it appears that the prisoner is innocent Captain Caleb does not come under either of these categories, according to his own admissions.
- (2)
- In all other cases it may be granted when the prisoner has completed two-fifths of his sentence. Under this law, then, the President would have no authority to pardon, as Captain Caleb has not been in confinement that length of his sentence.
I have not felt myself at liberty, under my instructions, to ask for anything else than his pardon, and this I did the day after I received a copy of his petition therefor. As the power to pardon necessarily includes the power to commute, I am in hopes that the President, if he finds it impossible to liberate him absolutely, will commute his sentence to the payment of a sum of money. Whatever the President may do in the matter I will inform you by telegraph. Should the sentence be commuted to the payment of a sum of money, in what manner can it be procured?
In the meanwhile I deem it only proper that you should be informed how far your instructions respecting Captain Caleb have been carried out.
I am, &c.,