No. 251.
Mr. Morgan to Mr. Frelinghuysen.

No. 784.]

Sir: Referring to my dispatch No. 753, February 18, 1884, in regard to the case of Capt. George Caleb, under sentence of five years’ imprisonment, charged with smuggling, I now inclose a copy and translation of a note addressed to me by Señor Fernandez, together with the document thereunto annexed, from which you will observe that the President of Mexico has refused to pardon Caleb or to commute his sentence.

I am, &c.,

P. H. MORGAN.
[Inclosure 1 in No. 784.—Translation.]

Mr. Fernandez to Mr. Morgan.

Mr. Minister: Referring to the correspondence between your location and this department with reference to the application for a pardon made by your excellency’s Government in favor of Capt. George Caleb, I have the honor to transmit to your excellency herewith a copy of a report, under date of the day before yesterday from the department of justice, which gives the reasons for declining to accede to said application.

[Page 364]

This department regrets that the serious reasons given by the ministsr of justice in his report prevents the realization of the earnest desire which the President entertained to pardon Captain Caleb and thus to comply with the wishes of the United States Government.

I renew, &c.,

JOSÉ FERNANDEZ.
[Inclosure 2 in No. 784.—Translation.]

Mr. Baranda to Mr. Fernandez.

In due course this department received your official communication of the 18th of February last, in which was inclosed the translation of a note which the minister of the United States of America in behalf of his Government addressed to your department asking for the pardon of Capt. George Caleb, who was sentenced by the Mexican tribunals to five years’ imprisonment for the offense of smuggling.

These notes, as well as the one addressed to me by you in reply to the one which in conformity with the circular of the 31st of January, 1871, was made on the 29th of January of the present year, were submitted to the consideration of the chief of the judicial section of this department, who had under consideration, and for the same object, Caleb’s application for pardon, as well as the petition subsequently presented in his name by the American citizen, Arthur P. Cushing, to the effect that the pardon being denied a commutation of his sentence might be granted.

As far back as the 1st of December of last year the chief of the bureau had concluded that nothing could be determined in respect of Caleb’s petition, as it was not accompanied by the conditions of the law, and because there was no reason nor faculty to dispense with them in accordance with the requirements which have been always exacted in all similar cases which have been presented.

The first of these requirements consists in a copy of the sentence pronounced against the petitioner, because, according to article 284 of the penal code, no pardons can be granted except upon a sentence imposed by a final judgment, and this condition of things was not and has not been stated to exist, although he has always been in possession of a copy of the judgment. The other requirements of the case, to conform with article 287 of the penal code, are:

I.
That the prisoner should have served two-fifths of the sentence pronounced against him;
II.
That during that time his conduct has been good;

and in neither of these categories is Caleb.

In reference to the commutation of sentence asked for by Mr. Cushing and subsequently by telegraph by Caleb, the chief of the section meets with the same legal difficulties which apply to the pardon, because there was not, even then, presented a copy of the sentence, and article 240 of the code provides: That no reduction or commutation of a penalty can be made except by the executive power, and after it has been irrevocably pronounced (after final judgment).

Mr. Cushing, pursuaded of the necessity of removing these difficulties, presented another application on the 14th of the present month, in which he said that a copy of the sentence pronounced against Caleb was in the department of hacienda, and he requested that it might be added to the record. With the view of facilitating the proceedings, his request was at once complied with, and within the shortest delay the minister of hacienda sent a copy of the judgment pronounced against Caleb on the 16th of April of last year by the district court of Lower California; but this judgment was not the one which the law required, as it was not a final one, as is established by the fact that it had been appealed against and was pending before the circuit court of Culiacan, from which it resulted that matters remained in the condition that they were in before the copy was received.

These circumstances show that the delay in the matter under consideration is not attributable to this department, but are due exclusively to the fact that the application made here was not made in conformity with the positive requirements of the penal code, which do not on this point innovate upon the old principle that applications for pardon to individuals should not be made, except in cases where a sentence has been pronounced which can be executed.

Having transmitted to you the communication addressed to Mr. Cushing, asking for the judgment, you occupied yourself with the matter, and, animated by the desire to expedite a decision of the Executive, you sent me on the 19th of the present month a copy of the judgments rendered by the district court of Lower California on the proceedings had against the American schooner Adriana, and in the criminal incident [Page 365] against the captain of said vessel, a copy of the judgment of the circuit court of Culiacan, and a copy of the judgment of the same tribunal refusing the application for a rehearing applied for by Caleb’s counsel. This was a compliance with the first requirement of the law, and authorized a study of the question.

From the report made by the section it appears that George Caleb was tried before the competent tribunals of the Republic in strict conformity with the laws, the accused having availed himself of all the rights guaranteed to him thereby, and that on the 30th of July; 1883, sentence was pronounced against him condemning him to five years’ imprisonment, counting from the day when he was declared a prisoner as responsible for the offense of smuggling. These facts established, the section, considering the text of the code is of the opinion that George Caleb can be granted neither a pardon nor a commutation of the sentence pronounced upon him, except in the sense of modifying the circumstances which are incompatible with his age and the state of his health.

The fundamental principles upon which this opinion rests are the following:

That article 287 of the penal code, permits an unconditional pardon when he who solicits it has rendered important services to the nation: when the President is of opinion that it will tend to the preservation of the public tranquillity or security; or when it appears that the party condemned is innocent.

In other cases, under the following requisites: When the prisoner has served two-fifths of his sentence; when, during that term, his conduct has been continuously good and his reform complete in the form required, and that he has complied with his civil responsibility, giving security that he will not become absolutely insolvent; and as Caleb, as has been said, has not established that he comes under either of the conditions of said article, it is evident that a pardon cannot be granted to him.

As regards the commutation, the article 242 of the code establishes the rules which are to be observed in order to grant it, and the only one applicable to the case when the sentence is one of imprisonment is found in Section IV of said article, which says: Only when from any circumstance the punishment is incompatible with the age, sex, health, or physical constitution of the prisoner the circumstances may be modified. And when Caleb shall allege and prove by the certificate of two competent parties that the climate in which he finds himself will be fatal to him (extinguendo la pena), is detrimental to his health, this circumstance may be modified by allowing him to come to this capital or to go some other place of the Republic.

The President considering that in effect George Caleb has rendered no important services to the nation; that there is no ground to believe that his pardon would be conducive to the public tranquillity or security, but on the contrary, that the impunity of crime would compromise the public tranquillity and security, particularly of crimes which affect the public revenues; that the prisoner does not appear to be innocent, and that according to his petition for pardon he is convicted of and confesses to having committed the offense for which he has been condemned; and, lastly, that the prisoner has not completed two-fifths of his sentence—refuses the pardon for the powerful reason that he has no power to grant it, and considers that the dispositions of the code upon the subject of the commutation of the sentence limits the concession thereof to modifying the circumstances of the imprisonment to the condition most favorable to the health of the prisoner.

To more fully appreciate the order in Caleb’s case, it appears proper to state that the constitution of the United States of Mexico does not vest in the President the discretionary power to pardon, but restricts it, and declares that it can only be done in conformity with the law, which is clearly shown in fraction xv, article 85, of said constitution, which is not drawn up in the fall and unconditional terms used in the respective Section II, Article II, of the Constitution of the United States of America.

The law which governs the President, in compliance with the fraction of the constitution cited, is the penal code of the federal district and territory of Lower California upon offenses at common law, and in all of the Republic upon offenses against the federation; and it has been abundantly established that according to that law the executive cannot grant a pardon in the case of George Caleb.

The President would have been well pleased if it had been possible for him to have decided otherwise, and to have granted the pardon asked for, as well because it would have been in conformity with his acknowledged sentiments in favor of clemency, as because it would have furnished him with an opportunity of giving another proof of the friendship which he feels for the United States, whose active intervention in this matter has been considered with the respect and consideration which it deserves; but within the circle of his legal attributes he has been obliged to govern his conduct by his duty.

All of which, by order of the President, and in answer to the communications referred to, I have the honor to inform you of, that it may have its corresponding effect.

Liberty and constitution.

BARANDA.

To the Under Secretary of State in charge of the Department of Foreign Affairs.