Los Angeles herald., 1891-10-24
THE ITATA CASE.
Judge Ross Excuses Chilean
Consul Cation.
His Office Exempts Him From
Giving Evidence.
An Important Legal Question In
v0lved in the Decision.
The Proceedings Yesterday in the CeIe-
brated Case-Judge Ross's Opinion.
The Evidence Taken.

opinion Dy Judge hOSS upon Cn6 QueS-
tion sas to the granting or denial of
Vice-Consul Cations request to be eX-
cused as a witness. The points raised
by Consul Cations attorney, Mr.. Craig,
are such as do not often come up, and
Judge Ross's decision will be of unu-
sual interest. Immediately after the
convening OF court yesterday morning
the court read quite long opinion, de-
Gliding to grant the vice-consul's request.
The first few pages of the decision give
brief review of the present case, and
refer to the request of Mr.. Cation to be
relieved from testifying. The court re-
fers to the ground upon which the re-
quest is made. his privileges as vice.
consul, and that the circumstances of
the present case are such as render it
improper to require him to attend as a
witness on the part OF the prosecution.
The court mentions the contention of
tie government that Mr.. Cation ceased
to be vice-consul upon the overthrow of
the government by which he was
accredited-the Balmaceda government.
The court says he is unable to take the
view OF the government counsel. He
refers to his presentation Of his creden-
tials in court issued by President Cleve-
land in January, 1888, and then goes on
as follows
But accepting Mr.. Cation as the duly
authorized and acting vice-consul OF the
Chilean government, does his position
as such Of itself entitle him to exemp-
ton from compulsory process to attend
as witness in the courts of the United
States? 1t is very clear that by the law
of nations consuls and vice-consuls
stand upon very different footing from
ambassadors and ministers. The latter
are not amenable to either The civil or
criminal jurisdiction of the country to
which they are deputed; not so, how
ever, the former. (Wharton's Digest
Int. Law. vol. l, pgs. 767, 775, 776;
Woolsey's Int. Law, p. 1852; Kent's
Com. As, 49,
But it is contended that such immu-
nifty attaches to the vice-consul of Chile
by reason of the treaty concluded be-
tween the United States and that coun-
try on the 10Th of April, 1882. The first
subdivision of Article XXXI of that
treaty provided that it should "remain
in full force and virtue for the term of
twelve years, to be reckoned from the
day of exchange of the ratification and
further, until the end of one year after
either of the contracting parties
shall have given notice to the
other of its intention to terminate
the same, each of the contracting par
= ties resefving to itself the right OF Civ
ing such notice to the other, at the end
of said term of twelve years and it is
hereby agreed between them that, on
the expiration of one year after such
notice shall have been received by
either from the other party, this treaty
in all parts relating to commerce and
navigation, shall altogether cease and
determine; and in all those parts which
relate to peace and friendship it shall
be permanently and perpetually bind
ing on both parties"
Pursuant to notice by the Chilean
government under the foregoing article,
the treaty, together with the explana
tory convention which followed it in
1888, were terminated January 30, 1850.
(Treat. and Conven., p. l18.) AS will
be observed, the portions of the treaty
so terminated were those relating to
commerce and navigation, leaving pei
manently and perpetually binding on
both powers those parts relating to
peace and friendship, embracing, as is
contended, article XIV of the treaty,
which is as follows: "Both the con-
tracing parties, being desirous of avoid
ing all inequality in relation to their
public communications and official in
tercourse, have agreed, and do agree, to
grant in their envoys, ministers and
other public agents, the same favors,
immunities and exemptions which those
of the most favored nations do, or shall
enjoy it being understood that what
60
the United States of America or the re-
public of Chile may find it proper to
give to the ministers and public agents
of any other power, shall, by the same
act, be extended to those of each of the
contracting parties"
1t being stipulated by the convention
between the United States and France,
ratified April L, 1858, that their consuls
shall never be compelled to appear in
court as witnesses, it is urged that the
same privilege attaches to the consuls
of Chile by virtue of article XIV of the
treaty of 1882 above cited. In the case
of Dillon, consul of France, Sawyer,
561, which arose in 1854, it was held by
the court that because of the stipulation
in the treaty between the United States
and France to the effect that their con-
suls shall never be compelled to appear
in court as witnesses, such consuls are
not amenable to the compulsory
processes of the court requiring their at
tendance, notwithstanding the provision
of the Constitution of the United States
securing to the accused in criminal pros
ecutions the right to have compulsory
process for obtaining witnesses in his
favor. The subpoena served upon Mr..
Dillon also required him to produce
certain document, said to be in his
possession. Having failed to appear an
attachment was issued and he was
brought into court, from which, after
a hearing OF the matter, he was dis
charged. When the attachment was
served, he hauled down his consular
flag; and the case was taken up by the
French minister at Washington, as in
volving gross disrespect to France. A
long and animated controversy between
Mr.. Marcy, then secretary of state, and
the French government ensued. The
TACT that an attachment had issued
under which Mr.. Dillon was brought into
court was regarded by the French gov
eminent as not merely contravention
OF the treaty, but an offense by inter-
national law; and it was argued that the
dlsrespect was not purged by the sub
sequent discharge of Mr.. Dillon from
arrest 1t was urged, also, that the fact
that the subpoena contained the clause
duces tecum involved violation of the