Los Angeles herald., 1891-10-22
The Lawyers Still Trying
to Crack 1t.
A. Question Of Consular Privi-
Iege Brought Forward.
Chilean Representative Walter B.
Cation Objects to Testifying.
An Interesting Question BefOr . Judge
Ross - Can a Consul Be Forced to
Give Evidence?-The Pro-
ceedings.

Quite an interesting question was
sprung at the outset yesterday morning
IN the Itata case, before Judge Ross, in
the United States district court. The
matter, as is well known, is criminal
prosecution of Ricardo Trumbull, George
A. Burt and James O'Farrell, under in
dictment for illegally arming the Chill
can steamer near San Clemente island
When the case was called yesterday
morning at 80 O'Clock the court room
was crowded, and the array of defend
ants, counsel and witnesses was form
5dable one. There had been some
rumors flying around about dismissal
of the charges, and when counsel on
both sides went out for a consultation
there was considerable conjecture as to
the matter. 1t was learned that the
subject was broached, but neither side
could agree as to stipulations, and when
the gentlemen returned to the court
room it was evidently with the purpose
of going on with the case.
A tall, smOoth-faced gentleman, who
was recognized as VIM. Craig, prom
inent San Francisco lawyer, arose, and
addressing the court, stated that he
wished before The trial began to say a
few words in behalf of Walter B. Cation,
the Chilean consul at San Francisco,
who was present. He then proceeded
to make quite long argument upon an
application by the consul to be excused
from testifying on the trial. He stated
than Consul Cation had been subpenaed
TO attend the trial as witness, and had
come to Los Angeles out of respect to
the court on his advice. But with all
due respect to the court, he did not be-
lieve he should be held as witness. As
consul he was entitled to the exemp-
tions and protection accorded the con-
suls of most favored nations, and itwould
work great hardship upon Mr.. Cat
ton TO make him testify in criminal case
against friend of the government he
represents. The archives of the consul
ate are by treaty to be held inviolate.
He considered that the matter was
within the discretion of the court, and
that it might even be considered an ad-
ministrative question rather than ju
dicial one. He cited case which oc-
CURED at San Francisco years ago where
a French consul declined to tes-
tify, and was sent to jail
by the court. He was afterwards
released and the matter became the sub
lect OF serious controversy between
France and the United States. 1t re-
suited, he said, in an apology by this
government and salute to the French
flag by man-of-war, while a regiment
was marched in front of the flag
and presented arms. Mr.. Craig
then read from a translation of
the consul's instructions, to the effect
that be will be subject to dismissal and
to fine and imprisonment if he reveals
any of the matters of his consulate,
without permission OF the foreign minis
ter. He considered that it would be
anhicting grievous injury on the con-
sui to compel him to do that which
would bring punishment upon him from
his own government. Mr.. Craig pre-
sented the credentials of Consul Cation,
signed by President Cleveland in 1883,
and under them claimed that as they
have not been revoked the court is
bound to afford him the protection be
desires.
Judge A. w. Hutton, of counsel for
the government, replied to Mr.. Craig,
and objected to the witness being ex-
cused. He threw quite a bombshell
into his opponents camp by stating
that there is no treaty between the
United States and Chile, it having been
abrogated in 1850 after the one years
notice having been given in 1S49 by the
Chilean government itself.
Judge Hutton also made another
point that Consul Cation was ap-
pointed under the Balmaceda regime,
and that as that government is defunct,
de is no longer consul, and cannot
proclaim the protection required. He
also denied that the United Estates gov
ernment had made any such abjectapo
ogy as stated by Mr.. Craig. That it was
under Secretary Marcy's administration,
and the United States insisted on its
point all the way through. There was
a final compromise by which the United
States was to salute the first French
war vessel that entered the harbor of
San Francisco but that salute was to
be returned by the French ship, gun for
gun; and there was no such thing as
regiment saluting the French flag as
stated by counsel.
Alex. Campbell, associate counsel for
the government, also took a whack at
Mr.. Craig. He said that he felt Mr..
Craig had spoken improperly before the
Jury in advance of the trial about the
defendants, Mr.. Craig having alluded in
eutogistic terms of Mr.. Trumbull and the
other defendants. He thought it came
to the verge of contempt of court, and
thought the court should at least CEN
ssure counsel for his utterances.
Mr. Craig jumped to his feet and dis
CANNED any such intention, never hav-
ing given the jury thought.
Judge Ross said he was convinced that
Mr. Craig had no intention of trying to
influence the jury.
Mr.. Campbell then went on in about
che same line marked out by the former
counsel for the government, insisting
that Consul Cation should not be ex-
cused.
The discussion took up the morning
hour, and was carried over into the
afternoon, when Mr.. Craig made a con-
GLIDING argument. He claimed, and
quoted authorities in support of his po-
sition, that the congressional govern
ment is the present government, and
that by its success it has validated all acts
since its inception. That, in fact. it has
always been the government, and there
has only been an interregnum of presi-
dents. He asked, if the president of the
United States should die, whether that
would throw out of office all our amhas-
gadors and consular force, contending
shat they would remain in Office until
4I,eif successors were appointed.