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from the fact of his being a Chilian, or having an appointment as confidential agent. The government must show that he acted in the wrong charged. If he acted and intended, he would be criminal, whether a Chilian or a Spaniard. If he did not act or intend, the fact of his being a Chilian or holding an appointment would not tend to convict him. His intention was to be derived from what he said and did.
The Court did not see that the rule cited could have any application to the inquiry put to the witness. He might state whether the answer would implicate him in his own trial, and if so, the Court would interfere to say he should not be obliged to endanger himself. The Court did not determine that; but the witness must say, on his own oath and conscience, whether it would tend to criminate him. The Court did not see that the question had any tendency to criminate him, and directed an answer.
Mr. Evarts. Your Honor deciding that the question does not tend to criminate him, I object, on the ground that it is irrelevant to the inquiry; for the condemnation of the vessel follows only as a consequence of a personal crime in fitting her out; and if this question is immaterial on the question of proof of the personal guilt of this witness, then it is immaterial on the question of the guilt or innocence of this ship.
Objection overruled. Counsel for claimant excepts.
WITNESS. Before I answer that question I will ask your Honor the privilege of explaining what my appointment is, — the character of my appointment as “ confidential agent,” — because I have been following with great interest the discussion, and I believe that the gentlemen are under a false impression of what my title is. I would explain how I received that title.
MR. COURTNEY. Q. I propose to have my question answered, and then the witness can give an explanation.
WITNESS. I hold the title of "confidential agent” of the Government of Chile here at present.
Q. And have you held it since you left Chile up to the present time ? A. I have.
Q. Have you that appointment with you. A. Yes, I have.
Counsel for the government calls for the production of the paper.
MR. STOUGHTON. I think the witness may decline to produce it unless he is ordered to do so by the Court.
The Court. Does he allege that there is any matter of governmental secrecy ?
MR. STOUGHTON. State whether you have any objection to produce it?
WITNESS. For myself I have no objection to produce it, unless my counsel objects.
MR. STOUGHON. You must make the objection, if it is to be made. In my judgment you ought not to produce it.
Witness. I prefer to disobey your injunction, and will produce it to explain my first answer.
MR. STOUGHTON. Does the Court oblige the witness to produce it?
The Court. If he does not decline to produce it himself, he may produce it. The privilege is personal altogether.
Mr. Stoughton explains that the witness is under a misapprehension, and having been directed to answer the question, whether he is a confidential agent of the government of Chile, he now considers that he is directed to produce his appointment in explanation of his answer. As the counsel for the witness, I advise him to decline producing this, unless directed by the Court.
WITNESS. I feel very much obliged to Mr. Stoughton for his anxiety about my own case, but as I have stated that I am “confidential agent” of the government of Chile, I think I can have no difficulty in stating why I am, and how I am.
MR. Stoughton. I advise you that if you voluntarily waive your privilege, and produce this paper, you waive the privilege which you have claimed against answering the previous questions. You ought to know this before
decide. WITNESS. If the Court declares that I thereby waive my privilege which I claimed, I do not produce it.
THE COURT. I leave the witness to exercise his own judgment and conscience in the matter. If he understands himself fully he must determine the matter in his own mind and judgment.
WITNESS. Your Honor knows I have declined to answer any question at all, but you have given me positive orders to answer such a question as has been presented to me, and as I think that paper forms a part of my first answer, I have no objection to present it, obeying your order; but if you do not oblige me to present that
paper, and if presenting it would involve me in difficulties, I decline.
The Court. I cannot tell about that; you must decide.
The Court. You have a right at any time to claim the privilege of not answering.
WITNESS. Then, with due respect to my counsel, I will present the paper. That is, understanding that I am always under the order of the Court, and that I do not waive any privilege to answer, I produce it as a part of my first answer.
MR. STOUGHTon. Do you understand the Court orders you to do it?
WITNESS. I do. I understand that the Court obliges me to answer the first question, and I am obliged to complete the answer by the production of this paper; but always under the order of the Court.
The Court. You do not withdraw your first claim of privilege ? WITNESS. No, sir.
The Court. I intend to instruct you that whenever a question is put to you which you cannot answer without crimipating yourself, you are privileged not to answer it.
MR. STOUGHTON. And I instruct the witness that he cannot answer it without tending to criminate himself.
WITNESS. I am ready to produce the paper in the light of a complementary part of my previous answer, and then, obeying the order of the Court, to answer the question.
THE DISTRICT ATTORNEY. Q. Will you produce that paper? A. I will produce it in the way I have told you; not else.
Q. Please produce that paper now? A. I produce it if the Court order me to produce it; but it is understood that I produce it under the order of the Court as given me to answer the first question ; the first question has been presented to me, and this goes to show what my position was.
The Court. Q. Does the paper explain your position ? A. Yes, I do it in that light.
The District ATTORNEY. I repeat the question again, and ask the witness, without any bargain, to produce that paper.
WITNESS. With due respect to you, as you say that you repeat the question, I say that I repeat my answer.
THE DISTRICT ATTORNEY. I understand the witness declines to produce the paper ?
The Court. I shall let him change his mind, if he does change his mind, in that.
WITNESS. I do not change my mind; I only explain my mind.
The Court. You must determine whether you can produce the paper.
Witness. I will do it with pleasure, under your Honor's order; I do not produce it, if not ordered by your Honor to do so.
The DISTRICT ATTORNEY. I ask the Court to compel the witness to produce the paper.
The Court. Then I refer it to his own mind and conscience to say whether he can produce it without affecting himself.
MR. STOUGHTON. I advise him he cannot.
WITNESs. My duty is to follow my counsel's advice, as I do not know the laws of the country; it is generally understood that papers are very bad things in Court, and if my lawyer considers it so, I leave him to decide.
Mr. Stoughton. You must decide yourself.
WITNESS. I have no fear of my conscience, but I have about the law, because generally law is not justice.
MR. STOUGHton. Do you decline to produce it on the ground that it may tend to criminate you?
WITNESS. I do.
The Court. You feel that you cannot produce it without tending to criminate you?
WITNESS. I cannot.
The District ATTORNEY. I move now that he be compelled to produce it.
The Court. I think he has a right to refuse.
Q. Had you any other documents besides the one you have mentioned appointing you? A. I have my title as a confidential agent;" that is the paper spoken of.
Q. Have you received any other document or paper empowering you in this country to act for Chile ? A. No, sir, except this one ; I had an appointment as Secretary to the Legation of Chile in Washington, but that I thought did not empower me to act for Chile, but for the Minister; that title was not accepted by the Secretary of State or the United States.
Q. Who is the Chilian Minister resident at Washington ? A. Francis Solano Asta Buruaga.
TESTIMONY OF LOUIS J. KIRK.
Louis J. Kirk sworn.
Q. Were you so in the months of December and January last ? A. Yes, sir.
Q. Do you know, or have you seen, the steamship Meteor ? A. I have seen her.
Q. You saw her in those months ? A. Yes, sir.
Q. Did you have occasion to examine her those months ? A. Yes, sir.
Q. When did you make an examination of her? A. I cannot fix the date ; I think it was the 22d or the 23d of January ; it was the day previous to her being seized,
Q. Upon that examination state, if you please, what was on board of her, as near as you can recollect ? A. The vessel was up for clearance, and some question was raised in regard to her, and the surveyor authorized me to go to Brooklyn and see what I could ascertain in regard to the vessel.
Q. What did you see there ? A. I saw large quantities of stores on board; in fact, there could not be much examination made, for she was then about loaded ; I examined her cargo book and had a conversation with the mate.
Q. What kind of stores ? A. Stores ordinarily used for ship purposes.
Q. Did you see any coal on board ? A. I saw some coal.
Q. Do you know how much? A. I should take it there was a large quantity of coal; you could stand and see it in the hatch.
Q. Had she steam up when you was there ? A. No, sir, I think not.
Q. Did you see or observe any freight on board of her? A. There was some rigging there ; whether it was freight or not I cannot say; there were some coils of rope that could be used for rigging ; I do not know whether it was freight.
Q. With the exception of these coils of rope, did you see any freight ? A. No, sir, I did not see any freight on board.
Q. Any merchandise ? A. No, sir; I saw them taking articles on board, and asked them what it was, and they said it was storės;