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ground that they cannot ask a witness what he understood from a conversation.
The Court admits the question as proper on cross-examination. Counsel for government takes exception. A. I did not understand him that way; I did not know what ammunition was there at that time. Q. You did not gather anything on that subject ? A. No, sir.
Q. How came he to speak of the Parrott guns? A. I don't know how he came to speak about them.
Q. What did he say about them ? A. He said he had ordered them ashore, and the ammunition.
Q. Did he tell you where he had ordered them to ? A. I understood him to Pierrepont's stores.
Q. And that he wanted to send the ammunition to the same place ? A. He wanted to send it on shore ; that is all he asked me the privilege to do.
Q. He did not ask for the privilege of sending them to Pierrepont's stores ? A. No, sir.
Q. Does this memorandum of yours give all the conversation you had ? A. No; it was only to refresh my memory; it was put down so that I could understand what was said on that day.
Q. Only the points that you jotted down?
A. I said I only put it down as a memorandum, - not fully of what was said.
Q. State again what you said it was ? A. I said I only noted it down, so I would understand what was said on that day, to keep it in my mind.
Q. You did not intend to note down the whole conversation ? A. No, sir; I never do of anything.
Q. What reply did the captain make to you when you refused to let the ammunition go ashore, if any? A. He said : “ Never mind; don't say anything about it.”
Cross-examined again. Q. Was that before or after he had asked you to make a memorandum of it in your book? A. It must have been after.
Q. After he asked you to make a memorandum in your book, he asked you to say nothing about it? A. That is what he
Q. What did you understand he wanted you to make a memorandum in your book for? A. I could not tell that.
Q. Was not what occurred that you said to the captain, you should not say anything about it? A. I do not think so.
Q. Did you not say, “ Never mind; I won't say anything about it ?” A. No; he did not know I did make the memorandum.
Q. After he had asked you to make the memorandum, did you not say, “Never mind; I won't say anything about it?” A. I don't think I did.
Q. Are you sure that you did not? A. No, I am not sure of that.
Mr. Webster proposes to read in evidence Exhibit A, being letter of R. B. Forbes, dated September 13, 1865.
Mr. Evarts objects, as immaterial.
Boston, September 13, 1865. Frederick C. Schmidt, Esq., New York:
DEAR SIR, - Owing to absence from my desk yesterday, I could not reply to your favor of the 11th. The Meteor is for sale, but I have not offered her, because she needs cleaning up and painting after her late experiences carrying troops and cargoes. She can be bought for much less than cost, and much less than she can be built for to-day. I cannot name a price until I consult the other owners. I am open to an offer. Am I to understand that you are acting as a broker, and if so, whether you expect to earn a commission out of us, and how much, if you should buy her? She was designed to carry one heavy pivot amidships on gun-deck, or two 10-inch or other guns at the same point, namely, just before the mainmast ; forward of this are two ports (two on each side) where 8 or 9 inch Dahlgrens would have been mounted, had she been taken by the United States Navy Department, and abreast of the engine hatch, aft, there are two ports on each side where she could have mounted short 32s, or 24-pound howitzers, and on upper deck there are beds for two 32-pound Parrotts, making one pivot, 11-inch, or two 10-inch; four broadside, 8 or 9 inch; four 32 or 24-pound howitzers, on gun deck; two light chase guns on upper deck. She has two 624 by 36 inch cylinders ; four tubular boilers; propeller of brass, 133 feet chain and 23 feet pitch. The motive power, boilers, &c., were imported from Scotland at a very large cost, and are first quality.
The ship was built by myself and a few friends, to cruise after British pirates, and she would have been taken by the United States, had not Fort Fisher fallen just as it did. She was first under steam at sea last December, and was tried under the auspices of the Navy Department, at the measured mile, below New York, on the 5th January, when, according to the report, she attained a rate of speed said to be superior to that of any propeller tried over that ground by the United States. Since April 1, she has been three trips south with troops, and one to New Orleans with cargo.
H. B. Cromwell & Co. loaded her out, and wrote that she was the most capable ship they had loaded, being full of heavy cargo on 16 feet 4 by 14 feet draught.
I am, very faithfully,
R. B. FORBES.
Counsel for the government offers in evidence a certificate from the Secretary of State, in respect to a state of war between Spain and Chile.
Mr. Evarts objects, that a certificate of the Secretary of State is not evidence respecting the existence of a foreign war; and there is no statute which permits his certificate to be evidence of this fact. Whether the Court may take judicial notice of it, is another question.
The Court receives the evidence provisionally, to which counsel for claimants except.
Paper marked Ex. D, and read :
UNITED STATES OF AMERICA,
DEPARTMENT OF STATE. To all to whom these presents shall come. Greeting :
I certify, that it appears, from authentic official information on file in this Department, that a state of war has existed between Spain and the Republic of Chile, from the 25th of September, 1865, up to the present time; that the United States are, and have been, during the same period, at peace with both the aforesaid nations, and that Stephen Rogers was recognized as consul ad interim of the Republic of Chile for the port of New York and its dependencies, from the 13th of October, 1864, to February 12, 1866, when his exequutur was revoked.
In testimony whereof, I, William H. Seward, Secretary of State of the United States, have hereunto subscribed my name and caused the seal of the Department of State to be affixed.
Done at the City of Washington, this twenty-ninth day of March, A. D. 1866, and of the independence of the United States the ninetieth.
WILLIAM H. SEWARD.
Adjourned to 11 o'clock on Monday, April 2.
THIRD DAY, MONDAY, April 2d.
The hearing of the case was resumed at 11 o'clock on Monday morning Judge Betts announced that, in relation to the admission of the certificate from the Secretary of State, as to war between Spain and Chile, which was received provisionally on Friday, he had, during recess, consulted authorities, and found there was abundant ground for the admission of the paper as legal evidence. Among others, 1 Greenl. on Ev. $$ 479, 491; Bingham v. Cabot, 3 Dal. 19, p. 41; The United States v. Liddle, 2 Wash. C. C. R. 205, p. 206; United States v. Benner, 1 Baldw. 234 ; Radcliffe v. Unit. Ins. Co. 7 Jolins. 38, pp. 43,50.
Counsel for claimants took exception to the ruling.
The District Attorney said that, although having no doubt of the admissibility of the evidence, he had, for greater caution, on Saturday, applied to the Secretary of State for any documents which he might have on file, and this morning received a declaration from the Spanish government to our government, of the fact of war existing between Spain and Chile.
Counsel for the government offered in evidence a certified copy of the promulgation of war between Spain and the Republic of Chile, dated at Madrid, September 25, 1865, - certificate dated at Washington, March 31, 1866, — which was read, and marked Exhibit E.
Counsel for claimants excepted.
TESTIMONY OF BENJAMIN VICUNA MACKENNA.
Benjamin Vicuna Mackenna sworn. Examined by Mr. Courtney. Q. Are you a resident of Chile ?
WITNESS. I decline to answer any question in this case, as I am indicted for assisting in fitting out this vessel, and I would not wish to give any information that would criminate me in my trial ; and, although I am very anxious to have that trial come on, I will not answer any questions until that time.
The Court decided not to anticipate until some question was put which appeared to have a tendency to criminate him. This question was admissible.
A. Yes, sir.
Q. And when did you leave Chile to come to this country? The 1st of October, 1865.
Q. And when did you arrive here ? A. I arrived here on the 19th of November, 1865.
Q. Are you now, or have you been, a member of what is called the House of Deputies, in Chile ? A. Yes, I am a member, and Secretary of the House.
Q. You are now, and were then? A. Yes, sir.
Q. Since you arrived in this country, state whether or not you have been appointed a special agent for the government of Chile ?
Mr. Stoughton (who appeared as counsel for Mr. Mackenna) objected, that this was a question which the witness had an undoubted privilege not to answer. The rule is, that the witness is not bound to answer any question which will furnish any link, however remote, connected with the results in the chain of evidence which the government may use, tending to criminate him; and the witness is to judge, after the Court has seen it has some bearing upon the question, whether it may tend to criminate him or not.
The Court. My opinion is, that the extent of privilege is to exempt the witness from answering any inquiry that would tend to criminate him; but we cannot exclude the answer because there might be a possibility of the answer implicating the witness.
The Court directs the question to be answered.
Mr. Evarts objects to the question as irrelevant to the question at issue. Admitted as introductory evidence.
A. I was appointed as special agent for the government of Chile before I started from Chile.
Q. Do you hold that same appointment now of confidential agent of Chile ?
The witness, under advice of counsel, declines to answer, on the ground that the question may tend to assist the prosecution against himself.
The Court. I do not discern any legal connection between this question and the charge against him.
Mr. Stoughton urged the witness's privilege, and cited 1 Greenl. on Ev. § 451. This employment would be used by the government to show a motive on the part of Mackenna, and go to the question of intent, on his trial.
Mr. Dickinson said it would be a new construction of criminal law to charge the party with intent, under such circumstances. The government would have to establish that within the jurisdiction of the United States he aided in fitting out and arming the vessel, and the intent must be proved, and could not be inferred