feels as does the Department that Guardia courts should be used only for discipline of members of the Guardia, and that even in those cases more and more Nicaraguan members should compose the court until finally it will be possible to eliminate American officers entirely.

COTTON

817.1051/353

The Chargé in Nicaragua (Beaulac) to the Secretary of State No. 1290

MANAGUA, January 21, 1930. [Received January 25.]

SIR: With reference to the Department's telegraphic instruction No. 4 of January 16, 1930, concerning the trial of Nicaraguan civilians by extraordinary courts martial under the Articles for the Government of the Guardia Nacional de Nicaragua, I have the honor to report that I had discussed this subject at length with President Moncada, the Commanding General Second Brigade and the Jefe Director of the Guardia Nacional.

President Moncada agrees thoroughly with the Department that the weakness of the present system is the inefficiency of the courts and that every effort should be made by his government to improve them. While he stated that his efforts in the past to do this had been unsuccessful, he promised to call a meeting of the Supreme Court to discuss the matter and determine what steps could be taken under the Constitution or, if necessary, in what way the Constitution must be amended to permit the various civil courts to function in cases of banditry in districts where martial law has been declared.

He said that he had been informed by members of the Supreme Court that the trial of bandits by civil courts under martial law was not possible. He had therefore given that idea up long ago. For several months he tried to handle a large number of bandit cases in the Northern Area through military courts composed of civilians sitting under authority of Nicaraguan military law and having no connection with the Guardia. This system broke down utterly and had to be abandoned.

General Williams and General McDougal likewise agreed that the procedure outlined by the Department, if it can be successfully worked out, is preferable to the trial of bandits by Guardia courts martial. Both however expressed doubt as to the possibility of its success under the plan outlined. General McDougal in particular stressed the urgent necessity which he feels exists to dispose in one way or another of bandits now in the custody of the Guardia. There is transmitted a copy of a memorandum prepared by him on the subject.

President Moncada said that a great deal of pressure was being exerted on him to turn Sergeant Larios over to the civil courts (Lega

tion's telegram No. 9 of January 15). The Legation likewise has received a number of petitions from various groups of citizens in the same sense. A copy and translation of one dated January 15 are transmitted herewith.19 President Moncada expressed the hope that the Department would stand behind him in this case which he considers extremely important to the future discipline and success of the Guardia. The court martial which will judge Larios will meet for the first time today. Instead of three Americans and four Nicara guans as I previously informed the Department, it has now been de cided that the court will consist of one American who will act as President and six Nicaraguans.

I shall communicate further with the Department on the subject of courts martial as soon as President Moncada informs me of the results of his meeting with the Supreme Court.

I have [etc.]

WILLARD L. BEAULAC

[Enclosure]

The Jefe Director of the Guardia Nacional (McDougal) to the American Chargé (Beaulac)

MANAGUA, January 18, 1930

MEMORANDUM

Prior to the declaration of martial law by the President, 9 April 1929, and 7 October, 1929, no bandits had been tried by any cours except court martials convened by chiefs of Voluntarios of which no reports have been received by the Guardia; but as a matter of common knowledge these courts tried and sentenced prisoners captured in the field and others who were apprehended on information. The one case I have cognizance of is the case of Jiron, who was tried by Escmilla and three or four of his colonels, all of whom being Mexican and one Costa Rican. Jiron was tried and sentenced to death and ex ecuted by this court without reference to higher authority.

The Government appointed two Fiscals de Guerra, one who was sent to Ocotal and the other to the Jinotega area, it being the intention of the Government to send a commission of civilians to try cases prepared by these Fiscals, presumably under the military code or customs of the country of previous times. I have no information of the activities of the Fiscal in Jinotega, but the Fiscal who went to Ocotal became very active in preparing different lists of Conservatives, who he listed & bandit suspects, and also lists of Guardia who had been former

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Conservatives and whom he wished to classify as ex-bandits. He took little interest in the bandit prisoners being held by Guardia and Marines for trial, beyond ascertaining which political party they belonged to. Requests were made to the President to send up the commission of civilians to clear up these cases, and to handle cases that would occur from time to time in the future, but no commission was ever appointed for either place. I was informed that the difficulty was in finding reputable persons who were willing to go up into the bandit areas to serve on these courts, and finally the Fiscals were recalled and were discharged.

Upon the discontinuance of the Voluntarios there ceased to be any military tribunal before which bandits could be brought to trial in the Segovias. In Matagalpa, which borders the bandit country, a number of cases were put to the order of the court in that place, and all were either placed on bond or were released summarily. Several notorious criminals were thus set at large, and protests by the Jefe Politico and other civilians were made to the President with representations that the courts were in sympathy with the bandits, and that no further cases should be sent to these courts. On verbal instructions of the President all cases of a bandit nature occurring in that locality have been held waiting the formation of some tribunal which could dispose of them. I have repeatedly urged that a Military Commission formed of civilians be created by the President, under such laws as authorized him so to do, to clear up these cases; but nothing has been done due I believe to the fact that no one could be found who was willing to serve, and thereby incur the enmity and the risk of retaliation which seems to be well founded.

We have the names of a great many of the known bandits and many could be located, but without means of bringing them to trial prestige would be lost by catching them and then having to release them for lack of machinery for handling the cases.

We are facing a situation which exists in the present, which must be met in some way shortly if banditry is to be kept from increasing. At present Martial Law where it exists is in name only. Its only effect is to prevent captured bandits from being released by the courts immediately after capture.

The following courts are in the areas where Martial Law has been proclaimed:

(a) District Criminal Courts, Matagalpa, Esteli, Ciudad de Dario, Jinotega, Ocotal, Somoto, Juigalpa, Boaco and Acoyapa.

(b) Court of Appeals, Matagalpa.

D. C. McDoUGAL

817.1051/350: Telegram

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

WASHINGTON, January 29, 1930-4 p. m.

10. Department's 5, January 17, 5 p. m. The President has received several telegrams of protest which indicate that Sergeant Larios was condemned to death. Please telegraph full information at once.

If death sentence has been passed, please say to President Moncada that the Department understands that the death sentence imposed by the ordinary courts has not customarily been carried out in Nicaragua and that it feels it to be unwise for it to be done now by the Guardia Nacional. In view of the situation here any such action would make it very much more difficult for Department to maintain marines in Nicaragua. The Department therefore requests as an act of grace on President Moncada's part that he commute any death

sentence.

Should President Moncada not accede to this request you will please tell the Commandant of the Guardia that no marines shall have anything to do with the carrying out of the sentence, shall not be part of the firing squad, nor be present at the execution in any capacity whatsoever. Rush reply.

COTTON

817.1051/378

The Chargé in Nicaragua (Beaulac) to the Secretary of State No. 1328

MANAGUA, February 18, 1930. [Received February 24.]

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

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.

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