It is pertinent to note the fact that he expresses the opinion that not
more than thirty individuals will be released from the prisons in
pursuance of this amnesty. I hope that this estimate may be correct, but
in case this Amnesty Bill is like that of sixteen other amnesties which
have preceded it in the history of the Republic of Cuba, we shall never
have any report of the execution it has received.
The main application of the Amnesty Bill which the President signed will
be to pending indictments in which, as yet, no sentence has been
adjudged and which will now be dismissed; and to the still larger number
of cases in which, for one reason or another, no indictment has ever
been found. The Department will recall the Whereas Clauses of the
original Amnesty Bill, setting forth the justification therefor. One of
these clauses reads as follows:
All cases of the character described in this quotation
are covered by the amnesty and, in addition, those that are pointed out
in the clipping from the Havana Post of June 6th
hereto attached marked Enclosure “B”.5
President Zayas
to the American Ambassador (Crowder)
My Dear Mr. Ambassador: I take pleasure in
acknowledging the receipt of your kind communication of May 30th
last, relative to the Project of Amnesty Law, now pending my
sanction.
In truth, I remember that when steps were being taken to obtain a
Foreign Loan to take up the Floating Debt of the Cuban State, the
Honorable Secretary of State of the United States, upon notifying
our Chargé d’Affaires of the assent of his Government to said
transaction, in accordance with the provisions of the Permanent
Treaty, indicated that that Government was confident that the
Secretaries of the Cabinet would not be removed, nor the Amnesty
Law, which was already projected, approved. Naturally, I accept
these friendly recommendations thankful to their good purposes, and
I complied with them, although considering them as inspired by the
circumstances of the moment in which they were made, and not as
permanently maintained.
I also remember the communications from Your Excellency of June 16th,
November 10th and December 9th, 1921. These communications contain
remarks on the Amnesty Law, likewise circumstantial, and with
reference to a determined and special situation. In fact, it is so
demonstrated by the following phrases contained in your
communication of June 16th: “it seems to extend amnesty as to most
of the grave crimes, which are likely to be disclosed by the
Superior Liquidating Commission.” (This objection is now out of
place, because the Law pending excludes said cases from the Amnesty,
in paragraph 3 of Section (a) of Article I.)
“I know of no measure that would strike more directly and
effectively at the financial credit
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of Cuba, at a time when
every effort is being made to restore public confidence.”
(The words underlined refer to a moment which has already passed.)
“No amnesty bill will be passed at the present
session of Congress.”
In the communication of November 10th, Your Excellency said: “It
would be very unfortunate if any Amnesty legislation were passed by
the Cuban Congress pending the loan negotiations. This is an
inopportune time to agitate the question of amnesty.”
Your communication of December 9th, more lengthy than the two
previous ones, was for the purpose of suggesting your points of view
in connection with the amnesty then pending, “in order that they may
be the cause of revision by such persons whose services I might
request, and whose knowledge in the matter and in the application of
the Law might be better than your own.” It is precisely the line of
conduct which I have followed, because I consider your friendly
advice as proper, and, after obtaining a delay of nearly three
years, I have succeeded in reducing in an extraordinary manner the
extension of the benefits of the amnesty.
It will suffice, to demonstrate this, that on December 9, 1921, when
Your Excellency examined Article I of the Project of Law pending,
listed up to 29 crimes or faults as included in the amnesty; and in
the present Law, after my efforts with the Members of the Mixed
Committee of Congress, they have been reduced to 17, and of these
cases, there are two which have not given rise to sentences.
Article II of the former Project has been left out entirely.
Article I of the Law pending, in Section (b),
does not seem to me to deserve the commentaries which Your
Excellency makes, because it unquestionably presents a wide range to
doubt of the justice or equity of a sentence of condemnation, the
fact that three Magistrates, out of seven which formed the Court,
may have given a vote of absolution.
As to the inclusion in the amnesty of such cases in which the
offender alleged the complete circumstances of legitimate defence,
but it is declared that the manner in which the facts were initiated
or occurred, was not known or not proved, that is to say, the
circumstances result incomplete, I must remind you that in Article
59 of the Electoral Code so much consideration was given to this
circumstance, that, when they concur in the crimes of homicide,
greater and lesser injuries, these are exempted from constituting
penal antecedents, for the effects of said Code.
Within the opinion which peoples of saxon origin have of oath, and
the respect which they have for it, Your Excellency is right in
criticising Section (a) of Article II of the
Law pending. I wish oath deserved the same respect among us, but
unfortunately this is not so, in general, and it is for this reason
that Congress includes
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such crime in the Amnesty, together with that of duel, to which
importance is not given also, and to simple infractions and
disciplinary corrections. It is precisely because I am convinced of
the little efficacy of oath, that I have been trying to induce
Congressmen that when Article 102 of the Electoral Code is modified,
they may demand some proof in writing to effect any inscription of
electors.
Section (b) of Article II concedes amnesty to
public officials and employees. It is the second time, during the
existence of the Republic that this has been done. The first time I
was the promotor in the Senate, in the year 19)2 [sic], of an amnesty which included all American citizens
and their co-offenders who had committed crimes during the
Intervention, and the principal object pursued was to grant amnesty
to the high officials of the Post-Office Department, General
Rathbone, Mr. Neely and Mr. Reeve.
I wish to state that the Project of Law which I saw before approving
the present, conceded the benefits of amnesty to the public
officials and employees without limiting it to the crimes or
misdemeanors committed in the exercise of their duties, or because
of them; and, at my suggestion, that limitation was introduced, for
the Constitution does not permit pardon in such circumstances.
Section (c) of said Article II has for its
actual object the amnesty for members of the same Congress which has
voted it, and from the point of view of principles, Dr. Dolz was
right in attacking this extreme of the Law: but the same Senator, in
a letter, which I have before me, directed to Mr. Wifredo Fernandez,
says: “I have combatted that law with my word and my vote: But, once
it is approved by Congress, it represents the will of the latter,
which I revere, and which in my judgment, should also weigh in the
consideration of the President of the Republic.”
The two paragraphs of Article III seem to Your Excellency tobe drawn
up to cover certain cases of individuals, and not a general
situation. It is probable that that is so, but they are without
importance, for it is not an attempt to pardon crimes, but to annul
penal antecedents only for political crimes, committed previous to
the year 1915; for the crime of infidelity in the custody of
prisoners, of the same epoch, and for those crimes whose penalty was
accomplished, or pardoned (it does not include those who have not
fulfilled the penalty involved), if in the sentence there were
absolutory votes, which implies doubts as to the culpability.
I think that Your Excellency wrongly interprets the provision of
Article VI of the pending Law, in thinking that it may infringe on
the Constitution, in Article XIII. To reject such an idea, it is
sufficient to consider that it does not annul nor alter any civil
liability originating from the criminal actions for which amnesty is
granted. Rather, the former Laws of Amnesty, in obliging the
[Page 614]
parties interested to
discuss before the Courts of civil jurisdiction that liability,
injured them, for they had to resort to proceedings that were
costly, complicated and delayed.
By the prevailing Law of Civil Procedure, in every criminal case, the
Fiscal exercises, in addition to penal action, the civil action, for
the restoration of the things, reparation of damages, and
indemnification for injuries, and on issuing the sentence, the Court
should decide all questions referring to the civil liability. The
new Law leaves in the charge of the Criminal Court, the obligation
which it had to fix the amount of the indemnification, which has
always been fixed by analogy with former cases, but in treating of
injuries, as these require proofs, and admit of discussion, the Law
follows the rule established in Article 116 of the Law of Civil
Procedure, even though there had been no sentence, for, if it had
been issued and were final, they would comply with that point.
It is true that the electoral crimes, because of the importance of
the penalty imposed, are included in the Amnesty but there will be
very few cases pending. As for the extinction of penal antecedents,
for the effects of the Electoral Code, paragraph four of Article 59
of said Code prevents the consideration of this amnesty, which in no
way influences in the application of the Electoral Code.
I do not believe that the American citizens can feel aggrieved at a,
Law of Amnesty which is constitutionally issued by Congress, and
which obligates them in accordance with Article X of the
Constitution; but, of course, the diplomatic way is a perfectly
legal channel through which to treat of any concrete case.
I have detained, for three years, the definite passing of the Law of
Amnesty, and I have succeeded in so reducing the cases which it
includes, that, according to calculations made, there will not be
more than thirty individuals who will come out of the Prison. I must
not systematically and for a longer time oppose the manifest and
persistent will of the Legislative Power, which, I am sure, would
reject the veto, for I have in my possession a communication
supporting and requesting the passing of the Law, signed by 18
Senators and 80 Representatives. With the same purpose, of
supporting and soliciting said approbation, I was visited by a
goodly number of journalists, who represented the majority of the
newspapers of this city.
Very truly yours,
