The Secretary of State to the Minister in Nicaragua (Hanna)

No. 475

Sir: Reference is made to your despatch No. 960 of November 7, 1932, transmitting a draft of the proposed basic law for the Guardia Nacional prepared by the Jefe Director.

The Department has carefully studied this draft which, in its opinion, embodies principles and measures that are well adapted to maintaining the Guardia along the lines of its present organization. [Page 902] The Department desires to submit the following observations which it wishes you to present to the Jefe Director for his consideration and embodiment in the project, if they meet with his and your concurrence.

1. Part I—Article I.

One of the bases of the Tipitapa Agreement was the organization of a new constabulary force, the Guardia Nacional, which was to displace all other military and police forces. The Department agrees with your comment that if the prestige and the efficiency of the Guardia are to remain unimpaired the Guardia must have control over all of the military and police forces. The Department notes that none of the presidential candidates who signed the recent agreement to maintain the non-partisan character of the Guardia raised any objection to the continuance of Guardia control of the municipal police. To continue this control, as well as to bring the Hacienda Guards, the Customs Guards, and other enforcement forces under the authority of the Guardia, it is suggested that the following sentence be added to Part I, Article I:

“Any such forces last mentioned, as now exist, or as shall hereafter be organized, shall immediately become subject to the authority of the Jefe director of the Guardia Nacional de Nicaragua in the same manner and to the same extent as the Guardia itself.”

Please explain to General Matthews that it is not the intent of the Department to make it impossible to continue or to organize these separate forces, but to endow the Jefe Director with sufficient power to bring them under his jurisdiction should he find them working at cross-purposes to the Guardia.

2. Part I—Article III.

To avoid any possible appearance of conflict with the provisions of Part III, Article X, it is suggested that after the words “shall be” at the end of the first line in Part I, Article III, there be added the words “ex-officio”. It is also suggested that in the second line of the same Article, the words “Commanding General” be changed to “Commander in Chief”.

3. Part I—Article IV.

At the time the original Guardia agreement was drawn up it was considered advisable to state the pay per annum which officers and enlisted men were to receive. The experience of the last five years has proved the desirability of this provision; it has given to the Guardia personnel a sense of economic security which has tended to make that body loyal and reliable. In the Department’s opinion these advantages [Page 903] are clear and should not now be lost sight of. It is therefore suggested that consideration be given to incorporating an appropriate provision either in the basic law (preferably in Part I, Article IV) or in the annual appropriation act. The Department is fully aware of the disadvantages of inserting a provision that will probably require revision in the permanent basic law. If, in General Matthews’ opinion, it would be preferable to leave the decision regarding pay to each Congress at the time it draws up the annual appropriation act, the Department will of course yield to his views. The chief interest of the Department in this matter is that it be not overlooked at this time.

4. Part I—Article V.

In view of the difficulty the Jefe Director has experienced in the past in securing funds for the Guardia regularly and promptly, the Department recommends there be substituted for the last sentence which begins: “Allotments for the various needs …” in Part I, Article V, the following:

“The proportionate monthly installments of the amount appropriated for the fiscal year shall be delivered on or before the first day of each month to the Jefe Director who shall make allotments from these moneys for the various needs of the Guardia.”

5. Part III—Article II.

The last paragraph of this Article provides that all commissioned officers entering the Guardia “after the passage of this act” shall be commissioned as Second Lieutenants. Should Congress pass the basic law before the Nicaraguan officers receive their full commission from the incoming President an awkward situation might arise. It is suggested that as a precaution there might be added after the words “with the dates of their commissions” the following:

“provided, however, that nothing contained herein shall prevent the commissioning in a higher grade than Second Lieutenant of those Nicaraguan officers serving under temporary commission as of the date of the passage of this act”.

In any case, the Department trusts that General Matthews will bear this possible difficulty in mind and be prepared to suggest measures to meet it in the event the law should be enacted prior to the commissioning of the new Nicaraguan officers by the incoming President.

6. Part III—Article VIII.

The language used in this Article covers the matter of the payment, or non-payment, as the case may be, of officers retired for disability resulting as “an incident to service” and from disability resulting [Page 904] from misconduct, but there is no provision for persons who shall have retired on disability resulting neither as an incident to service nor from misconduct. The Department believes that this omission should be supplied.

7. Part V—Articles I, II, III.

The Department presumes that these three Articles were the preliminary drafts and that later Part VI was added, which deals in full with the trial of Guardia personnel. It is suggested that Articles I and II of Part V be inserted without change at the end of Part VI and that the third Article of Part V be omitted entirely as it is more completely covered in Part VI.

8. Part V—Article V.

Since the provisions of this Article seem to be fully covered by the last paragraph of Part IV, Article I, the Department suggests that it be entirely omitted.

9. Part VI, Articles II and III.

The provisions of the second paragraph of Article II seem to involve some possible conflict with the provisions of Article III, and in any event the situation as covered by these two Articles does not seem to be entirely clear. Moreover, there appears to be a repetition in Article III of matter covered by Article II. It is suggested, therefore, that the second paragraph of Article II be amended by inserting after the word “duties” in the third line, the words “or in time of martial law”.

It is further suggested that Article III be recast to read as follows:

“Subject to the provisions of the preceding Article, the President of the Republic shall decide whether the ordinary tribunals or a Court Martial shall take jurisdiction in a given case where an offense is committed by a member of the Guardia Nacional de Nicaragua against both the Articles for the Government and Discipline of the Guardia Nacional de Nicaragua and the civil or criminal laws of the Republic. In all such cases the President shall be supplied with the report of an investigation of the case conducted by an officer or officers of the Guardia.”

10. Part VI—Article IV.

It is suggested that for the final words in this Article, “in questions of jurisidiction”, there be substituted the words “on matters of jurisdictional authority”.

11. Part VII.

It is noted that one of the reasons given for the inclusion of the Articles for the Government and Discipline of the Guardia in the [Page 905] basic law was to insure the validity of court martials held under the Guardia. The Department considers this to be a wise proposal and, if provision is also made in this Part reserving to Nicaraguan officers and enlisted men the right to trial by Guardia court martial for offenses committed in line of duty prior to the date when the Guardia passes to full control of the Nicaraguan Government for which they have not, prior thereto, been brought to trial, the Department believes that this will care for the matter mentioned in General Matthews’ letter to you of November 2, 1932, enclosed in your despatch No. 958 of November 5, 1932. The Department presumes, in any case, that an effort will be made by General Matthews to clear up all of these cases before the withdrawal of the American officers from the Guardia.

If, after discussing the views of the Department with General Matthews, there are any matters on which you desire further comment, the Department will be glad to hear from you by telegraph.

The Department feels that with the presentation to the Nicaraguan Government of the completed draft law, the responsibility of this Government in the matter will have been terminated. The Department trusts, of course, that the law will be enacted without detrimental change, and it believes that it will be appropriate for you to give such informal advice to that end as you may deem advisable. The Department will be interested to learn of the progress of the law in Congress and desires you to keep it fully informed by cable should you consider it desirable.

Very truly yours,

For the Secretary of State:
Francis White