my former note, on asking you if it were possible to transmit to me a copy of the declarations taken by the consul, in order that they might operate on the mind of the government. When I spoke thus, I had in view the power of pardoning or of commuting the punishment, which appertains to the government; and I believed that if, from those declarations, the criminal should appear innocent of the imputation of assassination, or there should be sufficient evidence to produce the moral suspicion of his innocence, and the irregular proceeding of the judge being proved also, these considerations would have much weight on the mind of the government and of the council of state to reduce or commute the punishment which might be imposed upon him by the tribunals, in view of the result of the process to which they, according to our laws, ought to adhere. Your excellency sees that this case could only happen after the cause had been definitely determined. When it does take place, the underigned has no hesitation in repeating to his excellency that every attention will be given to these considerations, and that the government will be pleased in taking this constitutional, although extraordinary course, in order to do justice, and to repair the evil of the proceeding which is attributed to the judge. The undersigned understands that his excellency, on insisting in showing and proving that the criminal judge of Valparaiso observed a reprehensible conduct in not receiving the declarations at the proper time, considers that this circumstance gives force to the equitable considerations which favor Stewart. If the view of his excellency were different, he will please make it known to me. Passing now to the second part of the note of your excellency, I ought to make known to you, that the course the cause has followed since your former communication is that which our laws prescribe, and the observations which your excellency makes argue nothing against the conduct of the judge, who has done no more than to conform to the law. Our laws, with accidental differences, recognise the same divisions of the criminal proceedings "de officio" (i. e. ex officio) which all enlightened legislation sanctions-divisions known amongst us as the trial for information, or the summary, ("juicio informativo o sumario,'') and that of full proof or final trial, (" comprobacion o plenario.") The first includes the collection of the facts which prove the violation of the law and the discovery of the person of the delinquent, in order to proceed afterwards to his apprehension and confession. This part of the process, from its nature, is secret; it corresponds to that which is denominated a trial for information ("juicio de instruccion') in those countries which admit trial by jury, and which necessarily precedes the action of the first jury, which, determining the character of the offence, declares whether or not there is sufficient ground to authorize a prosecution. Thus far, as well in the proceeding by jury as in ours, the criminal is not permitted to show his innocence, and all that humanity requires is the proper treatment of him of whom it is not known whether he be innocent or guilty, and the notification of the cause of his arrest. The summary trial being concluded, the judge proceeds to deter mine the judicial merit of the evidence collected; and if he does not find in it sufficient grounds to proceed to the final trial, ("al juicio plenario,") or to declare whether there are or are not sufficient grounds to authorize a prosecution, the suspension of the cause, or the complete discharge of the person proceeded against, according as the case may be, is declared. But this decree of the inferior court is not executed until the supreme tribunal reviews the process; and the latter may confirm the decree of the inferior judge, revoke it, or order the hastening of the summary examination, or that the final trial be immediately entered upon, the state of the case which corresponds to the action of the second jury, or the jury which determines the case. At this stage of the proceeding, and not before, the criminal enters upon the exercise of his right of defence, for which our legislation affords ample means, and which is favored by the law. Your excellency objects that Stewart had neither counsel nor witnesses, and that notwithstanding sufficient proof was not found to condemn him, the case was merely suspended, and he was not acquitted and put at liberty. The exposition which I have just made to your excellency, of the criminal proceeding established by our laws, will convince your excellency that all those acts were legal, and that the judge did no more than to comply with his duty, and that the execution of the laws of the country and the legal course of the action of justice cannot afford grounds for protests. The criminal has not had counsel because the cause has only been in a preliminary state, and has not yet reached the stage at which the proceedings are public. The evidence which he would have been able to present has not been received, because, whilst the case is in the preliminary state, nothing more is intended than to procure sufficient information to enable the judge to determine whether or not there are sufficient grounds to authorize a prosecution; and if the judge has ordered a suspension of the case, and has not acquitted the accused, it is because he has the power to proceed thus; and if, notwithstanding, Stewart has continued. a prisoner, it is because the decree of the inferior judge by itself alone, in causes of this nature, can produce no effect until confirmed or approved by the supreme tribunal. Mr. Peyton knows very well that by the law of nations every foreigner is subject to the tribunals of the country in which he happens to be, as other inhabitants or citizens are, and that the offences of which he may appear to be guilty, or which he may commit, ought to be judged according to the laws of the same country; and as, in the course which the case of Stewart has taken since the former communication of your excellency, the proceeding which these laws prescribe has been observed, and he has been treated as any other inhabitant or citizen, I do not see any cause of complaint. The facts which, as it appears to me, by a mistaken view of the laws which regulate the criminal proceeding in the republic, your excellency supposed to be faults, are not such, as I have just shown. Your excellency knows that in this matter each country is free to establish such rules as it may judge proper, to which every one who administers justice ought to adhere. I do not doubt that the penetration of your excellency will recognise the force of these observations, and that you will be convinced that there is no cause for protests of any kind, as the execution of the internal laws of a country as respects foreigners who reside within its territory would not admit it. These principles, which are, in every respect, conformable to international law, are also theonly ones consistent with the independence of each State, and the good harmony and perfect equality of the relations of one country to another. Your excellency not only protests, in the name of your government, against the further detention and trial of Stewart, but also appeals to the government of Chile for his discharge, without any unreasonable delay. Your excellency will permit me to observe that, even in the supposition that the course which the cause has taken were illegal, the appeal of your excellency to my government for the discharge of the criminal could not produce the effect desired. The judicial power is independent, and the Executive cannot withdraw from it an individual who has been legally subjected to its jurisdiction. My government, in discharging Stewart, would be guilty of a grave offence, would commit a violation of the constitution, as I understand the government of the United States would commit, proceeding in a like manner. However much this government may desire to strengthen its relations of friendship with the North American Union, by the extreme importance which it gives to indications of interest and benevolence towards the subjects of that republic, it would not be possible in any manner to adopt the line of conduct which Mr. Peyton proposes. Above every other consideration, it would be an imperative duty to respect the constitution, and to have the laws fulfilled-a duty which, if at first sight it appears to be solely for the benefit of the natives of the country, is also for the benefit of foreigners, who, as inhabitants of the country, are interested in having the guarantees secured by the law respected by the government, as also by the other authorities of the State. On submitting to the enlightened judgment of Mr. Peyton the observations which the undersigned has just had the honor to set forth, he cherishes the confidence that his excellency will be convinced that the proceeding in this case is conformable to the laws of the republic; and that if it were not so, the government of the undersigned would have hastened to dictate the necessary measures for the due protection of the rights of a North American citizen, conforming itself not only to its duty, but also to its sincere desire of maintaining the friendly relations which bind it to the United States. The undersigned will conclude this note by informing his excellency that a few days after the receipt of the communication to which he is replying, the case of Stewart came in review before the supreme court of justice, and that this tribunal, not confirming the decree of the inferior court, has remanded the case, in order that the summary may be hastened and definitely determined. The undersigned, when it came to his knowledge that the case was in Santiago, believed that in the space of a few days he would be permitted to reply to Mr. Peyton in view of the process; but in consideration of the course which the cause has taken, by reason of the decrees of the criminal judge and of the supreme court, and appreciating the observations of Mr. Peyton, has thought proper to make the present reply without further delay, and avails himself of this opportunity to reiterate to Mr. Peyton the assurances of his high and distinguished consideration. ANTONIO VARAS. The ENVOY EXTRAORDINARY AND MINISTER PLENIPOTENTIARY of the United States of America. VALPARAISO, November 16, 1852. SIR: I have had the honor to receive your letter of the 13th instant, making inquiry as to the contents of certain depositions taken by me in the case of William N. Stewart. The circumstances under which those depositions were taken and destroyed, together with the neglect of the person then acting as criminal judge to take the testimony of the witnesses in Stewart's favor, have formed the subject of a communication from me to his excellency Balie Peyton, United States minister at Santiago, and have caused a demand to be made by the latter gentleman upon the government at Santiago for the immediate discharge and release of the prisoner. It is the opinion of Mr. Peyton that I ought not to take any course that may be construed as waiving the objections heretofore taken to the proceedings in this case, or that may weaken in any degree the demand which he has made upon the Chilean government. It is obvious that my recollection cannot supply the place of the depositions which have been destroyed; and, even if they existed, they could not be a substitute for those which the judge himself ought to have taken. I do not feel at liberty to decline answering the interrogatories put to me, but I must do so upon the express condition that my so answering must not be considered as a waiver or abandonment of any objections, protests, or demands heretofore made by me, or by the American minister at Santiago, and that I must not be considered as consenting to the substitution of any testimony either for the depositions which are destroyed, or for those which ought to have been, but were not, taken. With this explanation, I reply that three witnesses were examined by me, being previously sworn in due form of law. The details of their testimony I cannot state; but it showed, in substance, that Stewart, while standing peacefully on the mole, in company with several others, and having taken no part in the affray, was violently assaulted by a number of persons armed with brick-bats, and one, at least, with a knife, who knocked him down, beat him, and fell upon him in confusion, and that, until the time he was knocked down, he neither drew a knife nor struck a blow, and that afterwards he was so pressed and covered with persons that it did not seem possible for him to do so. In addition to this, the testimony of one of the witnesses showed that another person was, by his own confession, guilty of the act. All this is consistent with Stewart's own declaration that he was knocked down senseless at the first assault, and supports the hypothesis that some other person used Stewart's knife to avenge him: The testimony of the witnesses examined by me established these two positions: First, that it was not probably Stewart, but another, who struck the fatal blow; secondly, that if otherwise, his own life was in danger, and that the act was justifiable as one of self-defence. I am, very respectfully, your obedient servant, Hon. J. SANTO. MELO, Judge of Letters, Valparaiso. WILLIAM DUER, United States Consul. I herewith enclose the copy of a note which I addressed to Mr. Varas, the minister of state and foreign relations of Chile, relative to the case of W. N. Stewart, an American citizen, who has for several months been confined in prison at Valparaiso on a charge of murder, to which I have, as yet, received no reply. Commodore Dulany is expected to arrive in the port of Valparaiso at an early day, where the orders which were issued to Commodore McCauley, instructing him to sustain the demand which I was directed to make on this government for the release of Mr. Stewart, are awaiting him. I have now every reason to hope for the release of this man. In fact, the prompt and decided action of the government at home is calculated to exercise a most salutary influence on this coast, where the rights of American citizens are habitually violated and the flag of the United States is treated with but little respect. Indeed these South American States presume much more on their weakness than do the most powerful nations of the Old World on their strength. I remain, very respectfully, your obedient servant, BALIE PEYTON. LEGATION OF THE UNITED STATES, The undersigned, envoy extraordinary and minister plenipotentiary of the United States of America near the government of Chile, having submitted to his government the facts relative to the arrest and imprisonment of W. N. Stewart, a citizen of the United States, on a charge of murder, has the honor to inform his excellency Señor Don |
