817.1051/378

The Chargé in Nicaragua (Beaulac) to the Secretary of State

No. 1328

Sir: I have the honor to refer to the Department’s telegram No. 4 of January 16, 1930, and to the Legation’s despatch No. 1290 of January 21, 1930, with reference to a possible improvement in the condition of the Nicaraguan Judiciary which would result in the establishment of civil courts adequate to handle cases involving banditry.

During my conversation with President Moncada reported in my despatch above referred to, the latter requested me to draft a memorandum which he could present to the Supreme Court embodying the substance of the Department’s telegram No. 4. I prepared and handed to him a memorandum of which a copy is enclosed.

On February 8, 1930, President Moncada’s private secretary sent me a copy of a letter addressed to him by the Secretary of the Supreme Court in reply to my memorandum and to a letter addressed to the President by General McDougal concerning an entirely different matter. A copy of the letter of the Secretary of the Supreme Court dated February 7, 1930, together with a translation of that portion [Page 867]of it dealing with the Legation’s memorandum are transmitted herewith.50

After studying the letter of the Secretary of the Supreme Court I became convinced that there had been a fundamental misunderstanding of what was desired by the Department of State, inasmuch as in Paragraph 2 of the letter the following appears:

“The Supreme Court of Justice understands that that program embodies the following points: (a) the faculty that American officials may exercise the function of judges within the military jurisdiction to which they are assigned; that they should take cognizance of and decide cases involving civilians who commit offenses against the military, in order that the Guardia Nacional may carry out more efficiently the high purposes for which it was instituted…[”]

The President of the Supreme Court, Dr. Carlos Morales, called at the Legation at my request and after having called his attention to the clause quoted above I reminded him that far from interpreting correctly the program that the Department of State had suggested, it was directly opposed to the Department’s desires as expressed in the first sentence of my memorandum which states “the Department of State cannot approve of the trial of Nicaraguan civilians by members of the Guardia so long as this institution is directed by American officers”.

Dr. Morales said that the Supreme Court had apparently fallen into an error in interpreting the Legation’s memorandum. He said that this could be explained by the circumstance that the Court had in mind not only the Legation’s memorandum but the Articles for the Government of the Guardia Nacional de Nicaragua, which do provide for Guardia courts with jurisdiction over civilians. I reminded him that I had made no mention of the Articles for the Government of the Guardia in my memorandum and that the point that the Department had brought up specifically was that Nicaraguan civilians should not be judged by Guardia courts but by Nicaraguan civil courts.

He said that this circumstance placed a new light on the matter and that he would have another memorandum prepared in the light of the Department’s desires as I had pointed out to him.

He stated, however, that the Supreme Court was still in a very difficult position because the Department’s wishes as outlined in my memorandum were directly contrary to the Articles for the Government of the Guardia which provided specifically for the Guardia courts to which the Department objected. He said it was very difficult for the Supreme Court to reconcile divergent points of view and still remain within the law.

[Page 868]

With respect to the establishment of civilian courts to handle cases of banditry in Departments where martial law has been declared, he said that an attempt had been made to utilize the ordinary courts in this connection but it had resulted in failure, not on account of the unwillingness of the Judges to cooperate, but because under the law those Judges had to abide by the ordinary rules of evidence, etc., which were usually lacking in cases of bandits taken in the field and even in the cases where such evidence was obtainable the long delay in terminating cases in strict accordance with the law was prejudicial to the interests of the Government.

He stated that in his private opinion the solution of the problem would be a total reform of the Constitution. He said there were many other provisions of the Constitution unsuited to present day conditions in Nicaragua and that he had for a long time favored the adoption of an entirely new Constitution. He said that this was feasible inasmuch as the Conservative Government two years ago had taken the initial steps to replace the present Constitution with a new one and the present Legislature could complete the total reform of the Constitution during the present session. I have not had the opportunity to verify the circumstances alleged by Dr. Morales but I presume that his information is accurate.

Since Congress has adjourned for fifteen days there is no possibility of immediate action to reform the Constitution even though the Executive Power should agree with the recommendation made by Dr. Morales to the Legation. This recommendation of course was entirely personal. I should appreciate having the benefit of any views which the Department may wish to express on the subject.

I have [etc.]

Willard L. Beaulac
[Enclosure]

The American Chargé (Beaulac) to the President of Nicaragua (Moncada)

Memorandum

The Department of State cannot approve of the trial of Nicaraguan civilians by members of the Guardia so long as this institution is directed by American officers. The purpose for which the Guardia has been established is the maintenance of public order and save in the case of military offenses, it should not be called upon to prescribe the penalties of the law even though the ordinary courts fail to function properly. If the Nicaraguan courts are ineffective, it is obviously preferable that measures should be taken to bring about a strengthening of this branch of the Government than that it be further weakened by the transference of its duties. The responsibility [Page 869]for the maintenance of order, so far as the punishment of offenders is concerned, rests squarely upon the Nicaraguan judiciary.

In the establishment of proper courts for handling bandit cases it is assumed that the Supreme Court would be willing to assist the Executive in so far as appointments are concerned and that the Nicaraguan Congress could pass new legislation if any were needed. It is believed that there exists no insuperable obstacle to action by the Nicaraguan Government which would result in the establishment of civil courts with sufficient authority and sufficient courage to deal with this situation.

  1. Not printed.