817.041/2: Telegram
The Minister in Nicaragua (Eberhardt) to the Secretary of State
[Received 7:11 p.m.]
153. In the proposed restoration of the Supreme Court aside from the ranking Conservatives it seems to be generally considered that the [Page 390] Congress which deposed the judges was illegal; that the procedure followed violated the Constitution since the judges neither resigned nor were impeached; and that they therefore were and still are the magistrates. On the basis of these facts the principle of restoration is accepted but there remains the problem of the manner of effecting such restoration.
Two plans [are] usually advanced. I favor that which contemplates the reassumption of their functions by the legal judges without further formality than that the Chamorro judges shall simply absent themselves from the court. This follows the precedent established in the restoration of Congress. Some Conservatives, and naturally the Chamorro judges, oppose this plan. They insist that if judges must retire they should present their resignation for Congress to accept and that thereafter Congress should reelect the old judges. They argue that this is the constitutional procedure. The fallacy of this seems to lie in the fact that such a procedure on the part of a legal Congress might well be interpreted as giving legality to the unrecognized court.
The restoration can probably be effected ultimately in accordance with plan 1, the only serious difficulties being to arrange that the decisions of the court during the incumbency of the Chamorro judges shall not become subject to reopening or reconsideration with attendant needless litigation.
To secure this result some suggest that the returning judges agree in advance in writing if necessary to give blanket approval of all decisions in which the Chamorro judges participated. Others that it will be necessary to take up specially and confirm prior decisions in any cases wherein interested parties raise question.
President Diaz joins me in the hope that General Stimson and other prominent American or international lawyers might be induced by the Department to give this subject careful thought and study and offer such helpful suggestions as may seem appropriate.