Los Angeles herald., 1891-10-24

| Federal Constitution giving defendants
opportunity to meet witnesses produced
| against them face to face, overrides con-
| flicting treaties, unless in cases where
such treaties embody exceptions to this
right recognized as such when the con-
stitution was framed. One of these ex-
ceptions relates TO the case of diplomatic
representatives, 'as the law OF evidence
stood when the constitution went in
effect" says Mr.. Marcy, ambassadors
and ministers could not be served with
compulsory process to appear as wit
nesses, and the clause in the constitu-
ton referred to did not give the defend
ant the right in criminal prosecutions to
compel their attendance in court" This
privilege, however. Mr.. Marcy main
tanned, did not extend to consuls, and
consuls, therefore, could only procure
the privilege when given to them by
treaty which, in criminal cases, was sub
iect to the limitations of the constitu-
ton of the United States. Mr.. Marcy,
however, finding that the French gov
ernment continued to regard the attach
ment with the subpoena duces tecum as
an attack on its honor, offered, in
letter to Mr.. Mason, dated Jan
uary, IS, 1866, to compromise
the matter by a salute to
the French flag upon French
manofwar. stopping at San Francisco.
Count de Santiges, the French minister
at Washington, asked in addition that
when the consular flag at San Francisco
was rehoisted, it should receive a salute.
This was declined by Mr.. Marcy. In
August, 1866, after long and protracted
controversy, the French government
agreed to accept as sufficient satisfac-
tion, an expression of regret by the gov
ernment of the United States, coupled
with the provision that "when French
national ship or squadron shall appear
in the harbor Of San Francisco the
United States authorities there, military
or naval, will salute the national flag
borne by such ship or squadron with a
naval salute, at an hour to be specified
commanding officer present, and the
French ship or squadron whose flag is
thus saluted will return the salute gun
for gum" (Wharton's Inter. Digestp.
666.)
1t will, therefore, be seen that while
the court held in Dillon's case that the
provision of the constitution securing to
accused in criminal prosecutions the
right to have compulsory process for OBJ
tanning witnesses in their favor, does
not authorize the issuing of such process
to such consuls who, by express treaty,
are not amenable to the process of the
courts, the state department of the
government contended that that provis-
ion over-rides conflicting treaties, not
embodying exceptions to the right guar
anteed, recognized as such when the
constitution was framed, within which
exceptions consuls did not come. In
the present case, however, the provis-
ion of the constitution referred to
in Dillon's case is not involved for Mr..
Cation has not been subp9naed as a
witness for the defendants, but on be-
half of the prosecution. And if he is
entitled, as in effect it is declared he is,
by Article XIV of the convention of
1882 and by the eXequatur issued to
him by the president, to the same privi-
leges and immunities as are granted to
the consuls of France, it would seem to
follow that he is exempt from compul-
sorry process to attend the court as
witness.
But for another reason l do not think
he should be compelled to attend as a
witness in this cause. The offenses
with which the defendants stand charged
are violations of the neutrality laws of
the United States, and consist in the
giving of aid to those who now consti-
tute the established and recognized gov
ernment of Chile. Having succeeded,
and become recognized, the acts of that
government from the commencement of
its existence will be upheld as those OF
an independent nation. Civilians vs.
Bruffy, 90 U. S. 1863 To require the
representative of that government to
appear and give testimony against those
alleged to have aided its establishment,
would not only be contrary to the prin-
ciple upon which neutrality laws are
based, but would strongly tend to give
grave offense to the government now
recognized by the United States and
with which this government happily is
at peace.
The motion on behalf of the vice
consul is allowed.
The taking OF testimony by the prose-
cution then began, and continued
throughout the day. The first witness
was Special Deputy Collector of Gus
toms A. E. Higgins, of San Diego, who
related the story of his examination Of
the Itata, without eliciting any new
points, except that he testified that he
did not find any arms or cannon on
board the steamer, although he made
careful examination, nor did he see any
soldiers.
Edward f. Jones, a laborer, and one
OF the men who helped to load the Itata
with coal at San Diego, testified to be-
ing on board the steamer, and that on
going to the hold, he stumbled over
steel cannon, and saw canvas under
which he thought there were other can
non. He heard the voices of men in the
bunkers while passing through to go to
his dinner, and saw soup and eatables
being passed down somewhere near the
middle of the steamer.
Eduardo Telling, Chilean youth who
was on the ftata as ''brassman" and
afterwards as "coal-passer," was the
next witness, and proved quite
bonanza to the government, because he
fatty contradicted material points in
the stories told by Captain Mannzen,
Commandante Tejeda and the other
officers of the vessel. He is one of the
three sailors who deserted from the
steamer at San Diego, were afterwards
captured and have been lying in the
county jail since May last, detained to
be witnesses for the government at this
trial. After going at length over the
movements of the Itata before she
started tor San Diego, without any new
information, he took up the story of the
journey north, and was proceeding with
it when the noon recess came.