837.00/3097

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

No. 754

Sir: Referring to the Department’s telegram No. 27 of February 7, 1931, 7 P.M., to my telegram No. 38 of February 8 [13], 1931, 12 M., and to my despatch No. 625 of April 2, 1931,28 in relation to the detention of various civilians by Cuban military authorities, in possible [Page 64]violation of the Constitution, I have the honor to transmit herewith, as of possible interest to the Department, a copy and translation of the considerandos and of the dispositive part of the decision announced by the Supreme Court of Cuba on June 10, 1931,29 upon a petition of unconstitutionality established on behalf of Sr. Aurelio Hevia against a decision of January 24, 1931, by which the Audiencia of Habana denied a writ of habeas corpus in favor of Sr. Hevia.

The decision has been received with enthusiasm by certain elements of the opposition, who regard it as extending the privilege of the writ of habeas corpus to all cases of unwarranted detention, by military as well as civil authorities. The decision was evidently reached in the face of logical difficulties. It was presumably the expectation of the framers of the Constitution of 1901 that a law or laws would be passed determining the form of summary procedure with a view to giving effect to the provision of the first paragraph of Article 20 of the Constitution. The paragraph of the Habeas Corpus Order of 1900 cited by the Supreme Court in the Hevia case was found applicable and continued to be applied in cases of persons detained by the civil authorities. This paragraph is quite obviously limited in its scope, but it has for thirty years presented no obstacle to the enactment by Congress of supplementary legislation with reference to detention by military authorities. It is hard to see how the order providing a remedy in certain cases falling under Article 20 could be held to restrict the rights guaranteed under that article because it did not provide a remedy for other cases contemplated therein. What the Court has done in the Hevia decision is in effect to legislate on a matter neglected by the Congress.

Respectfully yours,

Harry F. Guggenheim
  1. Despatch No. 625 not printed.
  2. Not printed.