Under the Mexican constitution such proceedings have two instances.
First, congress, acting as a grand jury, declares the guilt or innocence
of the accused; and secondly, the supreme court, acting as a jury of
sentence, as it is termed, pronounces the penalty.
In the present case congress declared the culpability of the governor of
Jalisco. This declaration, under the constitution, works what is held by
some to be a suspension from office, and by others to be a permanent
removal.
In the present case another feature was introduced by the fact that as
yet no law has been framed establishing the penalties in the cases of
official responsibility.
Under these circumstances the supreme court, on the 22d of last month,
pronounced a decision in this case.
It declares the verdict of congress to have involved only a suspension
from office, and by the suspension already experienced the governor of
Jalisco to have been purged from his offense, and places him at liberty
and restores him to office.
This action has naturally given great satisfaction to the friends of the
governor of Jalisco, while it is a severe disappointment to those who
favored the action taken in this matter by congress.
As illustrating the course of proceedings in such cases in this country,
I beg to transmit a translation of the decision referred to,
herewith,
I have the honor to be, very respectfully, your obedient servant.
Hon. William H. Seward, Secretary of State, Washington, D. C.
[From the Diario Oficial,
Mexico, August 29,
1868.—Translation.]
Decision of the Supreme Court in the case of the Governor of the
State of Jalisco, impeached by the National Congress.
SUPREME COURT OF JUSTICE OF THE NATION.
In the city of Mexico, this 22d day of August, 1868, being met in the
hall of sessions of the supreme court of justice of the United
Mexican States, the citizens Chief Justice Lerdo de Tejada, Justices
Riva Palacio, Lafragua, Ordaz, Cardoza, Castillo Velasco,
[Page 576]
Guzman, Valasquez, Zavala,
and Garcia Ramirez, and Prosecuting Attorney General Guzman, for the
purpose of acting as a jury of sentence to pronounce the
corresponding decision in the cause instituted against Don José
Antonio Gomez Cuervo, constitutional governor of the State of
Jalisco, for not having respected the order of the district judge of
Guadalajara, that declared open the proceedings of amparo, (protection,) and ordered the suspension of the
execution of five criminals, which act was deemed culpable by the
congress of the Union, erected in jury of accusation, as there was
therein involved an infraction of the law of the 30th of November,
1861, and of the constitution. The record of the proceedings in the
case having been read in public audience; having been heard the
opinion of the prosecuting attorney, (fiscal,) which concludes
asking that the supreme court of justice declare that the governor
of Jalisco, Don José Antonio Gomez Cuervo, has not incurred penalty
whatever, there being no law which designates the same, and that in
equity he should be held to be compurged with the time that has
passed of suspension from his office, in consequence of the verdict
of culpability; the allegation of the accusers, citizens Apolonio
Angulo and Silviano Moreno, in which, without fixing the penalty
merited by the offender, they insist in manifesting that the
separation ordered by article 105 of the constitution involves a
formal destitution from office; the defense of the accused, by his
counsel, the citizen Alfonso Lancaster Jones, opposing the arguments
of the accusers, and asking that it be declared that the accused has
not incurred any penalty for lack of a special law of
responsibility, or that he be considered sufficiently punished by
the suffering already experienced; having been seen the record of
the proceedings, with all else that has been presented and that has
relation to the cause.
Considering, in so far as relates to the understanding that should be
given to the words “shall be immediately separated from said
office,” which are used in article 105 of the constitution—
First, that the argument that is alleged, that from the said words a
true destitution is to be understood, which consists in that the
design of the constituent congress of 1857 was to establish in the
republic the impeachment trials of the United States of the North,
is not exact, as it appears from the history of the said congress
that the project was rejected.
Second, that the idea adopted for trials of responsibility was that
of the citizen deputy Marcelino Castañeda, and from his remarks it
appears that the first trial only works the suspension of the
functionary until the termination of the proceedings.
Third, that these proceedings being intrusted to two juries, the one
of fact and the other of sentence, and destitution being evidently a
penalty, it cannot be decreed by the judges of the fact.
And fourth, that whatever may have been the design of the
legislators, there is no legal motive to alter the signification of
the words used in article 105, and particularly when in the
preceding article the same words are used to signify solely the
suspension of the accused, as has been understood and recognized by
all without the natural sense of the same having been placed in
doubt.
Considering, in so far as relates to the penalty which should be
imposed upon the accused—
First, that the jury is found under the precise obligation of
pronouncing a condemnatory sentence, admitting the declaration of
culpability made by the congress of the Union erected in grand jury,
and the disposition that it made of the criminal.
Second, that the examination being concluded and the proceedings
terminated, it is indispensable to fix the condition of the criminal
by a definitive sentence, the court proceeding with the authority
given to it by the constitution and conformably to law, as to leave
uncertain the status of the person prosecuted for an indefinite
time, perhaps without termination, would be the most unjust
violation of the constitutional guarantees.
Third, that in the proceedings there appear circumstances proved
which very greatly extenuate the offense, and which any ordinary
judge should take into consideration, and still more a jury, by the
very nature of its institution.
Fourth, that these circumstances attenuate in such a manner the
culpability that they have influenced the minds of the jury to
impose a minimum penalty.
And, fifth, that no special law having been issued regulating
official offenses and fixing the penalties.
The jury having in consideration the reasons expressed, decrees—
First, the separation of Don José Antonio Gomez Cuerva from his
office by virtue of the verdict of the congress of the Union, only
implies the suspension from office until the penalty should be
imposed by the jury of sentence.
Second, Señor Gomez Cuervo is to be held compurged with the time that
has elapsed of suspension from office, and the other sufferings
experienced. In consequence he shall remain in absolute liberty, and
be replaced in his office of constitutional governor of the State of
Jalisco.
Third, let certified copies of this decision be remitted to the
congress of the Union, returning to it the papers in the case, to
the government of the Union, and to the government
[Page 577]
of the State of Jalisco, for their
knowledge; and to the district judge of Guadalajara, that it be
notified to the citizen Gomez Cuervo, and that the bail which has
been given be ordered to be canceled.
Let it be known and published. So was accorded by a majority of the
votes of the citizen magistrates who form the jury of sentence, and
they signed.
S. LERDO DE TEJADA.
VICENTE RIVA PALACIO.
J. M. LAFRAGUA.
P. ORDAZ.
JOAQUIN CARDOZO.
J. M. DEL CASTILLO.
VELASCO S. GUZMAN.
LUIS VELASQUEZ.
M. ZAMLA.
JOSÉ GARCIA RAMIROZ.
LEON GUZMAN.
LUIS MARIA AGUILAR, Secretary.
Mexico, August 26, 1868.
A true copy:
