The Ambassador in Cuba (Crowder) to the Secretary of State

No. 735

Sir: I have the honor to refer to my despatch No. 730 of June 2, 1924, transmitting copy of my communication to President Zayas in re the then pending Amnesty Bill, and to enclose herewith of [a] copy of his reply thereto.

It is pertinent to note the fact that he expresses the opinion that not more than thirty individuals will be released from the prisons in pursuance of this amnesty. I hope that this estimate may be correct, but in case this Amnesty Bill is like that of sixteen other amnesties which have preceded it in the history of the Republic of Cuba, we shall never have any report of the execution it has received.

The main application of the Amnesty Bill which the President signed will be to pending indictments in which, as yet, no sentence has been adjudged and which will now be dismissed; and to the still larger number of cases in which, for one reason or another, no indictment has ever been found. The Department will recall the Whereas Clauses of the original Amnesty Bill, setting forth the justification therefor. One of these clauses reads as follows:

“It is therefore a fact that no one can deny or ignore that during a period of more than fifteen years it has been the custom in this country to favor a multitude of persons with imaginary positions [Page 611] and collectorias, which were made to appear in the name of nonexistent persons, which practice has prevailed in absolutely all of the branches of the administration, and that absolutely all social classes have taken advantage of this situation. The influence of the personages was measured by the number of these favors which lie was able to distribute.”

All cases of the character described in this quotation are covered by the amnesty and, in addition, those that are pointed out in the clipping from the Havana Post of June 6th hereto attached marked Enclosure “B”.5

I have [etc.]

E. H. Crowder

President Zayas to the American Ambassador (Crowder)

My Dear Mr. Ambassador: I take pleasure in acknowledging the receipt of your kind communication of May 30th last, relative to the Project of Amnesty Law, now pending my sanction.

In truth, I remember that when steps were being taken to obtain a Foreign Loan to take up the Floating Debt of the Cuban State, the Honorable Secretary of State of the United States, upon notifying our Chargé d’Affaires of the assent of his Government to said transaction, in accordance with the provisions of the Permanent Treaty, indicated that that Government was confident that the Secretaries of the Cabinet would not be removed, nor the Amnesty Law, which was already projected, approved. Naturally, I accept these friendly recommendations thankful to their good purposes, and I complied with them, although considering them as inspired by the circumstances of the moment in which they were made, and not as permanently maintained.

I also remember the communications from Your Excellency of June 16th, November 10th and December 9th, 1921. These communications contain remarks on the Amnesty Law, likewise circumstantial, and with reference to a determined and special situation. In fact, it is so demonstrated by the following phrases contained in your communication of June 16th: “it seems to extend amnesty as to most of the grave crimes, which are likely to be disclosed by the Superior Liquidating Commission.” (This objection is now out of place, because the Law pending excludes said cases from the Amnesty, in paragraph 3 of Section (a) of Article I.) “I know of no measure that would strike more directly and effectively at the financial credit [Page 612] of Cuba, at a time when every effort is being made to restore public confidence.” (The words underlined refer to a moment which has already passed.) “No amnesty bill will be passed at the present session of Congress.”

In the communication of November 10th, Your Excellency said: “It would be very unfortunate if any Amnesty legislation were passed by the Cuban Congress pending the loan negotiations. This is an inopportune time to agitate the question of amnesty.”

Your communication of December 9th, more lengthy than the two previous ones, was for the purpose of suggesting your points of view in connection with the amnesty then pending, “in order that they may be the cause of revision by such persons whose services I might request, and whose knowledge in the matter and in the application of the Law might be better than your own.” It is precisely the line of conduct which I have followed, because I consider your friendly advice as proper, and, after obtaining a delay of nearly three years, I have succeeded in reducing in an extraordinary manner the extension of the benefits of the amnesty.

It will suffice, to demonstrate this, that on December 9, 1921, when Your Excellency examined Article I of the Project of Law pending, listed up to 29 crimes or faults as included in the amnesty; and in the present Law, after my efforts with the Members of the Mixed Committee of Congress, they have been reduced to 17, and of these cases, there are two which have not given rise to sentences.

Article II of the former Project has been left out entirely.

Article I of the Law pending, in Section (b), does not seem to me to deserve the commentaries which Your Excellency makes, because it unquestionably presents a wide range to doubt of the justice or equity of a sentence of condemnation, the fact that three Magistrates, out of seven which formed the Court, may have given a vote of absolution.

As to the inclusion in the amnesty of such cases in which the offender alleged the complete circumstances of legitimate defence, but it is declared that the manner in which the facts were initiated or occurred, was not known or not proved, that is to say, the circumstances result incomplete, I must remind you that in Article 59 of the Electoral Code so much consideration was given to this circumstance, that, when they concur in the crimes of homicide, greater and lesser injuries, these are exempted from constituting penal antecedents, for the effects of said Code.

Within the opinion which peoples of saxon origin have of oath, and the respect which they have for it, Your Excellency is right in criticising Section (a) of Article II of the Law pending. I wish oath deserved the same respect among us, but unfortunately this is not so, in general, and it is for this reason that Congress includes [Page 613] such crime in the Amnesty, together with that of duel, to which importance is not given also, and to simple infractions and disciplinary corrections. It is precisely because I am convinced of the little efficacy of oath, that I have been trying to induce Congressmen that when Article 102 of the Electoral Code is modified, they may demand some proof in writing to effect any inscription of electors.

Section (b) of Article II concedes amnesty to public officials and employees. It is the second time, during the existence of the Republic that this has been done. The first time I was the promotor in the Senate, in the year 19)2 [sic], of an amnesty which included all American citizens and their co-offenders who had committed crimes during the Intervention, and the principal object pursued was to grant amnesty to the high officials of the Post-Office Department, General Rathbone, Mr. Neely and Mr. Reeve.

I wish to state that the Project of Law which I saw before approving the present, conceded the benefits of amnesty to the public officials and employees without limiting it to the crimes or misdemeanors committed in the exercise of their duties, or because of them; and, at my suggestion, that limitation was introduced, for the Constitution does not permit pardon in such circumstances.

Section (c) of said Article II has for its actual object the amnesty for members of the same Congress which has voted it, and from the point of view of principles, Dr. Dolz was right in attacking this extreme of the Law: but the same Senator, in a letter, which I have before me, directed to Mr. Wifredo Fernandez, says: “I have combatted that law with my word and my vote: But, once it is approved by Congress, it represents the will of the latter, which I revere, and which in my judgment, should also weigh in the consideration of the President of the Republic.”

The two paragraphs of Article III seem to Your Excellency tobe drawn up to cover certain cases of individuals, and not a general situation. It is probable that that is so, but they are without importance, for it is not an attempt to pardon crimes, but to annul penal antecedents only for political crimes, committed previous to the year 1915; for the crime of infidelity in the custody of prisoners, of the same epoch, and for those crimes whose penalty was accomplished, or pardoned (it does not include those who have not fulfilled the penalty involved), if in the sentence there were absolutory votes, which implies doubts as to the culpability.

I think that Your Excellency wrongly interprets the provision of Article VI of the pending Law, in thinking that it may infringe on the Constitution, in Article XIII. To reject such an idea, it is sufficient to consider that it does not annul nor alter any civil liability originating from the criminal actions for which amnesty is granted. Rather, the former Laws of Amnesty, in obliging the [Page 614] parties interested to discuss before the Courts of civil jurisdiction that liability, injured them, for they had to resort to proceedings that were costly, complicated and delayed.

By the prevailing Law of Civil Procedure, in every criminal case, the Fiscal exercises, in addition to penal action, the civil action, for the restoration of the things, reparation of damages, and indemnification for injuries, and on issuing the sentence, the Court should decide all questions referring to the civil liability. The new Law leaves in the charge of the Criminal Court, the obligation which it had to fix the amount of the indemnification, which has always been fixed by analogy with former cases, but in treating of injuries, as these require proofs, and admit of discussion, the Law follows the rule established in Article 116 of the Law of Civil Procedure, even though there had been no sentence, for, if it had been issued and were final, they would comply with that point.

It is true that the electoral crimes, because of the importance of the penalty imposed, are included in the Amnesty but there will be very few cases pending. As for the extinction of penal antecedents, for the effects of the Electoral Code, paragraph four of Article 59 of said Code prevents the consideration of this amnesty, which in no way influences in the application of the Electoral Code.

I do not believe that the American citizens can feel aggrieved at a, Law of Amnesty which is constitutionally issued by Congress, and which obligates them in accordance with Article X of the Constitution; but, of course, the diplomatic way is a perfectly legal channel through which to treat of any concrete case.

I have detained, for three years, the definite passing of the Law of Amnesty, and I have succeeded in so reducing the cases which it includes, that, according to calculations made, there will not be more than thirty individuals who will come out of the Prison. I must not systematically and for a longer time oppose the manifest and persistent will of the Legislative Power, which, I am sure, would reject the veto, for I have in my possession a communication supporting and requesting the passing of the Law, signed by 18 Senators and 80 Representatives. With the same purpose, of supporting and soliciting said approbation, I was visited by a goodly number of journalists, who represented the majority of the newspapers of this city.

Very truly yours,

Alfredo Zayas
  1. Not printed.
  2. Spanish text not in Department files.