Antonio Varas, minister of state and foreign relations of Chile, that he is instructed by his government to make the following communication to the government of Chile: The President of the United States having been informed by the undersigned that he contemplated laying the case before the government of Chile, expresses the hope that, upon the said representation of the facts, and particularly of the conduct of the judge in refusing to hear testimony in his defence, the government will either release him without trial, or, if he shall already have been tried and convicted, will pardon him. In case, however, his efforts to procure the discharge of the said Stewart shall have been unavailing, the President instructs the undersigned to lose no time in communicating to the government of Chile that the government of the United States disclaims any intention to interfere with the administration of justice in Chile, but that the conduct of the judge, in refusing to hear testimony on behalf of the accused, is considered by it as indicating a predetermination to condemn him, and as unworthy the magistrate of a civilized and Christian country; that it cannot for a moment believe that the conduct of the judge will be sanctioned by the government of Chile, or that it will allow a man who may be innocent to be sacrificed from the refusal of the judge to discharge his duty. If, however, it should be otherwise, and the government of Chile should permit the accused to be deprived of his life or liberty, in virtue of a sentence rendered without hearing the witnesses offered in his defence, and without a fair trial, according to the laws and usages of Chile, the government of the United States, however anxious it may be to cultivate the most friendly relations with Chile, will consider such conduct a gross outrage to an American citizen, for which it will assuredly hold that of Chile responsible. All the efforts heretofore made by the undersigned to procure the discharge of the said Stewart having been unavailing, in obedience to instructions, he makes this communication to the government of Chile, in the hope that it may be awakened to a sense of justice, and will not permit an American citizen wrongfully and illegally to be deprived of his life or his liberty. In virtue of the foregoing instructions, the undersigned demands from the government of Chile, formally and in the name of the government of the United States, the release of the said W. N. Stewart. The grounds upon which this demand is made have heretofore been so fully stated to his excellency by the undersigned, as to render their repetition unnecessary. He will, however, remark, by way of response to his excellency's last note on the subject, bearing date the 11th of November, that this demand is not based on formal or technical objections-such as the mode of judicial proceedings in Chile, or the division of powers between the various departments of its government-but upon the ground that the guilt or innocence of the accused cannot be fairly adjudicated by the court, according to the laws of Chile, the law of nations, or the laws of any civilized state, because the evidence, material, direct, positive testimony of eyewitnesses to the scene, has been lost, and is now beyond the reach of the court or of the accused, and the prisoner is thus left exposed and defenceless by the wilful violation of law, and a refusal to perform his duty on the part of the judge who presided in the early and most important stage of the case, when all the testimony upon which the issue of guilt or innocence was finally to be decided ought to have been reduced to writing by him. It is because the courts of Chile have not the means of doing justice to the accused; and because, if he be tried, the trial will be ex parte; and if condemned, it will be without a hearing; and if executed, it will be perpetrating murder under the name of law;-these are briefly the grounds upon which former appeals and the present demand upon the government of Chile rest. In reply to the intimation contained in his excellency's said note of the 11th of November, to the effect that neither the Executive of the United States nor of Chile possessed the constitutional power to interfere with the regular proceedings of the courts, by ordering the discharge of a prisoner arraigned for a criminal offence, as in the present case, the undersigned would remark that the President of the United States possesses the undisputed power, which is often exercised, to direct a nolle prosequi to be entered at any stage of a criminal proceeding which may be pending in any of the United States courts, without the concurrence of the judge or the least encroachment on his judicial prerogatives. And, from the analogy existing between the frames of the two governments, to which his excellency has referred, the undersigned had supposed that the want of power would have been the last ground upon which his excellency would have rested his argument, more especially under existing circumstances, when it is remembered that the Congress of Chile, doubtless for wise and salutary purposes, have invested the President with extraordinary powers, by virtue of which he may, without the form of trial or the necessity of an accusation, cause any citizen of Chile to be arrested and imprisoned, or banished from his home to a distant part of the republic; and it is supposed that even his honor the Judge. of Letters, who presides in Stewart's case, could not claim an exemption. from this law. The undersigned states most distinctly, that it is far from his intention to call in question the policy or justice of the law of Congress above referred to, much less to intimate that it would be possible for his excellency the President of Chile to abuse the trust confided to his hands; but he refers to the fact as being entitled to some weight when the legitimate powers of the President is the subject under consideration. But the question of the division of powers in this State is one with which foreign nations have nothing to do; their relations are with the executive government of Chile, and to that government alone they are to look for the redress of wrongs, regardless of the particular department by which they may have been afflicted, [inflicted] and if the supreme government possessed no power to prevent the perpetration of the offence complained of, it would be its misfortune; but, in the case of admitted wrong, such want of power would not serve as a justification. His excellency intimates, in his note above mentioned, that if the accused shall be condemned on his trial, and sentenced by the court, then the President will be ready to listen to any mitigating circumstances with a view to a commutaion of his punishment. His excellency will not fail to perceive that this view of the case is altogether inadmissible; that it is not the degree of punishment to which the United States object, but to any punishment being inflicted upon one of its citizens who has had no hearing. W. N. Stewart has now been a close prisoner for nearly four months, confined in the same room with, and surrounded by, every grade of offender in the jail of Valparaiso; and when the undersigned supposed the case was finally settled by his acquittal, he is informed by his excellency that all the proceedings heretofore had in the case are merely preparatory to a trial. The undersigned repeats that it is not the forms, but the substance, of all these proceedings upon which he rests the demand for the release of the accused. In conclusion, the undersigned expresses the sincere hope that the government of Chile may review its former decision, comply with the just and reasonable demand of the United States, and thereby meet them in a course of reciprocal kindness and justice, such as may confirm those sentiments of good will and feelings of friendship which have ever animated that government towards Chile. The undersigned, in addressing the present official communication, by order of his government, to his excellency Señor Varas, minister of state and foreign relations of Chile, has the honor to renew to him. the assurance of his distinguished consideration. BALIE PEYTON. His Excellency SEÑOR DON ANTONIO VARAS, [No. 50.] * Mr. Peyton to Mr. Everett. [Extract.] LEGATION OF THE UNITED STATES, * * * * * * SIR: I am informed by William Duer, esq., U. S. consul at Valparaiso, that W. N. Stewart was discharged from confinement by the court on or about the 18th instant; but Mr. Varas has not replied to my note of the 8th instant, demanding Mr. Stewart's release, nor have I received any communication from him on the subject since that time. * * * Hon. EDWARD EVERETT, * * * BALIE PEYTON. Secretary of State of the United States, Washington. Mr. Peyton to Mr. Marcy. [Extracts.] [No. 58.] LEGATION OF THE UNITED STATES, Santiago, Chile, May 26, 1853. SIR I have the honor to enclose herewith translations of two notes from Mr. Varas, the Chilean minister of foreign relations, one relative to the case of William N. Stewart. * * * * * * As for Mr. Stewart, he was discharged nominally by the court for want of testimony, but really in obedience to a demand I made for his release, in pursuance of instructions received to that effect from the acting Secretary of State; and to this cause I attribute the unusual display of temper manifested in the minister's note. But as I do not consider the national honor involved, and have no motive for entering into a personal controversy with him, I shall take no notice of the unjustifiable intimations he makes in his note relative to the case of Stewart. It will appear that so far from withholding any information, I promptly laid before my government all the facts and every communication, whether the same were derived or received from the American consul, the Judge of Letters, or the minister himself; all of which will appear by a reference to my previous despatches on the subject. If he were the minister of a powerful European nation, I should deem it incumbent on me to take notice of his remarks. I remain, very respectfully, your obedient servant, Hon. WILLIAM L. MARCY, BALIE PEYTON. Secretary of State of the United States, Washington. [Translation.] The minister of foreign relations has the honor to salute the minister plenipotentiary of the United States of America, and to say to him that a few days previous to the departure of the government for the southern provinces, the two accompanying notes were being copied; but that operation not having been concluded before the departure of the minister from the capital, they were afterwards sent to him at the south, when various circumstances, which he believes himself excused from specifying, prevented him from despatching them to Santiago, as was his desire. It has, therefore, been indispensable to defer the transmission of the said notes to the hands of Mr. Peyton until to-day, who will be good enough to excuse the delay which has occurred. DEPARTMENT OF FOREIGN RELATIONS, April 28, 1853. [Translation.] SANTIAGO, January 29, 1853. The undersigned, minister of foreign relations, has had the honor to receive the note of Mr. Peyton of the 8th of December last, in which, in obedience to instructions from his government, he insists on his previous demand that the government shall discharge and put at liberty W. Stewart, a North American, who was subjected to trial at Valparaiso, on a charge of assassination, notwithstanding what had been set forth by the undersigned in his previous communications, intended to make known to Mr. Peyton that Stewart being legally subject to the judicial authority, this was the only one which had jurisdiction over him, without any power on the part of the government to withdraw him from it, much less to discharge and put him at liberty, without failing in its duty, and openly infringing the constitution of the State. The undersigned would have limited himself to acknowledging the receipt of the note of Mr. Peyton, and of announcing to him that Stewart had been discharged and set at liberty in pursuance of the judgment of the tribunals, had he not believed it his duty, to correct the meaning which Mr. Peyton has given to some of the observations of the note of the undersigned of the 11th of November last, to again call the attention of Mr. Peyton to principles of international law which he has not borne in mind, or to which he has not given his attention, and to submit to him some reflections upon the manner in which he has thought proper to call the government of the undersigned to principles of justice, ("i someterle algunas observationes sobre la manera en que ha creido oportuno llamar al Gobierno del infrascrito á los principios de justicia.") The undersigned can now proceed with a knowledge of the judicial proceedings which, since the decision of the court, he has been able to have before him, which previously was not possible, following the order which our laws establish. The facts, as they appear from the record, are as follows: In the night of the 22d of August, 1852, a scuffle took place on the mole, in which North Americans and Chilenos were engaged, and in which Fermin Castillo was seriously wounded. The police proceeded to the riot, apprehended several persons, and among them Stewart, who was generally pointed out as the author of the wound of Castillo, the designation being corroborated by the circumstance that the knife with which Castillo was wounded, and which he took from the aggressor, belonged to Stewart. The police on the following day made report of the case to the Judge of Letters, and this functionary had to proceed to the organization of the summary information which the laws prescribe, and which is necessary in order that the individual apprehended for having a crime imputed to him may be accused by the public prosecutor. Before the public prosecutor accuses, or, in other words, before the judge, in view of the summary information, declares whether there are sufficient grounds to place the indicated person on trial, there is no judicial charge against him, no accusation against which he can defend himself, nor which he |
