quarrel, the affray became general; that the accused, a passenger on said United States ship Venice, which had touched in the port of Valparaiso on her voyage from Philadelphia, in the United States, to San Francisco, California, was standing with several other persons on the mole at some distance from where the combatants were engaged, having taken no part whatever in the affray, when he and these other peaceable persons with whom he was standing were suddenly assailed with brickbats and other missiles by a mob of Chilenos; that the persons assailed were more or less injured by severe blows on their heads, bodies, &c., but they all succeeded in making their escape except the accused, who was knocked down and beaten until he was left insensible. It further appears that, in this unfortunate affray, a citizen of Chile received a wound of which he has since died; and it is alleged that the accused inflicted the mortal wound.

It would seem that, up to the time when the accused was assailed and knocked down by the mob, who continued to beat him after he was prostrated, he had not struck, stabbed or molested any person; and it is uncertain, as it is immaterial, whether the mortal blow was given by the accused after he was struck down, or the same was inflicted by some other person; for, assuming the facts to be as above stated, he had a right, in defence of his own life, to take that of any one or all of his assailants.

This is a law of nature, recognised by the municipal laws of all civilized States. It further appears that these facts might have been established by the testimony of three eye-witnesses, the second mate and two passengers of the Venice, and that the United States consul used due diligence, in fact made extraordinary exertions, to induce the criminal judge of Valparaiso, who had cognizance of the case, to take the depositions of these witnesses, or reduce their examinations, under oath, to writing; but that he neglected and failed to do so, although the captain of the vessel was prevailed on by the consul to remain in port several days after she was ready to sail, he, the consul, having no power or authority to detain the vessel, upon which there were a large number of passengers, without the consent of her master; and she finally sailed for California, with all the witnesses whose testimony it was desirable to offer in behalf of the accused. When the consul despaired of being able to prevail on the judge to take the depositions of these witnesses, he did so himself; and shortly thereafter, the judge having intimated a readiness to proceed with their examinations, the consul desired to be present; and this being refused, he sent to the judge, for his information, and in order that he might be able to examine the witnesses fully, their depositions as taken by himself; but the deposition of one witness only was taken, the judge declining to proceed with the others on the ground that he was tired, although he was informed that the vessel would sail immediately with the witnesses, as she did: not only so, but the judge tore up and destroyed the examinations of witnesses which the consul had reduced to writing and intrusted to his care for a temporary purpose.

Thus, it appears, the accused has been deprived of his testimony, and, without the means of defence, is left exposed to the malevolence of those persons who, failing to destroy him by violence, may be

tempted to seek his life by perjury; and that he is placed in this perilous situation without any fault or laches on his part, or on the part of the United States consul, whose duty it was to protect him so far as to endeavor to procure for him a fair and impartial trial, according to the laws and usages of Chile. And it now becomes a question, a grave and serious question, whether the accused shall or shall not be tried and punished in the absence of his testimony, or, in other words, whether he shall be condemned to death and executed without a hearing, which is the same thing.

The undersigned is well aware that this is a case which should have been submitted for the consideration and decision of the judicial tribunals of Chile, upon a full and patient examination of all the testimony, both for and against the accused, whose decision so made would have been promptly acquiesced in by the United States and all their functionaries. But, under present circumstances, it is impossible for the courts of Chile to afford relief to the accused, whether he be innocent or not, as they are bound to decide according to the law as applicable to the evidence before them; and the undersigned has no other alternative but to solicit, which he now does, with the greatest respect, the interposition of the President of Chile for the relief of the accused, who has been deprived of all means of defence, in the usual mode, by the extraordinary conduct of a judicial officer of this government.

The undersigned would further inquire whether the various applications made by the United States consul to the criminal judge of Valparaiso, with a view to the protection of the accused, may not be granted, and to request that, so far as it is usual and proper, the same shall be conceded to him.

The undersigned avails himself of this opportunity to renew to his excellency assurances of his high regard and distinguished consideration.

His Excellency SEÑOR DON ANTONIO VARAS,

BALIE PEYTON.

Minister of State and Foreign Relations of Chile.

A.

VALPARAISO, August 31, 1852.

SIR: I have not been able to comply with your request to transmit to the government of the United States at Washington copies of the examinations taken by me in the case of Stewart, for the reason that those examinations were destroyed by the judge of the criminal court. I send you herewith a copy of a letter addressed by me to that functionary, together with a letter from a German gentleman, transmitting his answer, if it may be so considered.

I suppose it was intended to be repeated to me.
I am, very respectfully, your obedient servant,

Hon. BAILIE PEYTON,

United States Minister, &c.

WILLIAM DUER.

[Copies B and C, from Mr. Duer to the judge of the criminal court, and from Mr. Jencqued to Mr. Duer. See Mr. Duer's correspondence with Mr. Peyton, marked E and D.]

D.

UNITED STATES CONSULATE,

Valparaiso, September 3, 1852.

SIR: I have the honor to acknowledge the receipt of your letter of the first instant.

In compliance with your request, I will proceed to state the substance of the testimony of the witnesses examined by me in the case of W. N. Stewart, and whose depositions were, as I am informed, destroyed by the judge of the criminal court of Valparaiso.

To do this it will be necessary to recapitulate a portion of the contents of my letter of August 27, to which I will add a more detailed statement of some facts which in that communication were only referred to generally, for the reason that I then supposed the examinations themselves to be in existence, and intended, as soon as might be, to transmit to you copies of them.

66

It appeared by the testimony in question that Stewart, the second mate of the Venice, and two of the passengers in the same vessel, were, at the commencement of the affray, standing in a group together, separate and apart from the combatants. In consequence of the destruction of my depositions I cannot give you the names of these persons, having no other memoranda. Suddenly fifteen or twenty Chilean boatmen rushed upon these four men, who had not taken any part whatever in the quarrel by word or act, throwing brickbats at them, and crying Americanos." The mate and passengers escaped with some injuries from their fury, but Stewart was surrounded, knocked down, and some ten or more fell upon him and beat him in great confusion. Up to the time that he was so knocked down it appeared distinctly that he did not strike a blow. It seemed also impossible that he could have done so afterwards. But if he did so, the evidence established a case of justifiable self-defence. The number of men by whom he was pressed, their excitement, and the weapons they employed, showed both the will and ability to kill those against whom their fury was directed. One of the witnesses exhibited to me his head, which had been dressed by a surgeon, and showed the marks of a very severe wound by a brickbat, a little change in the position of which would have rendered it fatal. Another was run through the coat-sleeve and received a slight flesh-wound from a long knife borne by a Chilean, who was described as running about furiously, threatening with his drawn knife all who apparently belonged to the class against whom, for some reason, his anger and that of his companions was directed.

I may state that I have not been able to ascertain what it was that produced this excitement. The two men with whom the quarrel origi

nated the one a Swede and the other a Frenchman, belonging to the crew of the Venice-both deserted that vessel, and neither of them to my knowledge has been arrested. It may be that the Swede, against whom the Chilean boatmen took part, and who may have been erroneously supposed to be an American, wounded or injured in some way one of their number, or that one of his companions did so. But this is a matter of conjecture, as I have no evidence upon that subject. I said in my letter of August 27 that a portion of the testimony taken by me went to show that another was the guilty person. That testimony was as follows: one of the passengers of the Venice deposed that he was on the mole and near the water about fifteen or twenty minutes after the affray was over. He there heard conversing together in English two men, neither of whom he knew. The conversation was in reference to the affray, and tended to show that one of the two was the party who gave the wound which proved fatal to one of the boatmen. It terminated in this way: one of the men said he would go up to the town again. The other remarked, "You had better not; they will recognise you by your dress, and they know that you are the man who struck the blow." These were nearly or quite the words, and certainly the substance of the words used. The first then replied, "Well, then, I will go on board."

I may remark that, passing near the mole on the evening in question, shortly after the affray, and observing a group of persons collected there, I went up to see what was the matter, and saw stretched on the ground, and apparently lifeless, the bodies of two men. I supposed these were Stewart and the Chilean who was wounded.

I have been informed to-day that Stewart has admitted, on the examination before the judge, that a knife, said to have been found in the body of the deceased, belonged to him, and was on his person before the affray commenced; and that he further declared that, to the moment he was knocked senseless, he is certain that he struck no one, and that he is entirely unconscious of having done so at all. These declarations are, of course, to be taken together, and that part which is in his favor is not to be separated from that which is against him. It may be that, unconsciously, and by an instinctive movement of self-defence, Stewart availed himself of a weapon by his side. It may be that a friend or companion avenged him with his own knife. But whatever hypothesis we adopt, none can shake the conclusion that, even if deliberately and with his full senses, and with an intention to take life, he used his knife to defend himself against an unprovoked attack made by fifteen or twenty men with brick-bats and knives, he was justified in the act by the laws of God and man, and the practice of all nations, whether barbarous or civilized. I send you herewith a copy of a letter addressed by me yesterday, and delivered to-day, to the judge of the criminal court, which I hope may meet with your approbation.

I am, very respectfully, your obedient servant,

WILLIAM DUER,
United States Consul.

His Excellency Hon. BALIE PEYTON, &c., dc., &c.

E.

VALPARAISO, September 2, 1852. SIR: On the 30th of August I addressed to you a note requesting that I might be furnished with copies of the examinations taken in the case of Stewart, and also that the depositions taken by me and left in your office might be returned to me. I was informed by the gentleman to whom I intrusted the delivery of the note that you refused to answer it, because it was not written in Spanish; that you added, that until the sumario was finished, the examinations were required to be kept secret, and that no copies could consequently be furnished, and that, as to the depositions taken by me, you had torn them to pieces.

I shall not suffer any incivility to myself, personally or officially, to divert me from the discharge of my duty in this case.

It is impossible for me to write to you in Spanish, for the reason that I am not sufficiently acquainted with the language. I will, however, whether for your convenience, or to satisfy any claims due to your dignity, which I have been free from any intention to offend, cause to be appended to this letter a translation. I cannot, however, be responsible for the accuracy of that translation, but only for what I write myself.

The accused is my countryman-alone, friendless, without money, imprisoned, his witnesses denied a hearing. If I were deaf to humanity, the office which I hold makes it my duty to take every proper step to protect and defend him.

It is not, and has not been, my wish that, if guilty, he should not suffer the penalty of his crime. The witnesses whom I heard, but whom your did not, and whose evidence is now destroyed, induced in my mind the belief of his innocence.

I beg you, therefore, to believe, if I persist in these efforts, that it is not with the purpose of disrespect to yourself, or of unnecessarily occupying your time, but of discharging a duty to my own government and country.

In the supposition that the examinations may now be completed, I renew the request that I may be furnished with copies of them. If not yet completed, then I request that I may be so furnished when they shall be so completed. I desire to be informed whether the accused will be allowed the benefit of counsel, or of an advocate to plead in his defence.

I desire to know whether the witnesses against him may be confronted with him; whether they may be cross-examined-that is, examined in his behalf by him or his counsel, and whether they may be examined in public. As to witnesses in his favor, I believe there are none now in Chile.

It is my wish, also, to be informed whether there will be any other or further trial than that which is now in progress. To explain this inquiry, it may be proper to state that in the United States of America witnesses are first heard, to determine whether or not there are sufficient grounds to frame an accusation; and if that question be