No. 386.
Mr. Morgan
to Mr. Frelinghuysen.
Mexico , February 6, 1883. (Received February 19.)
Sir: I transmit herewith a dispatch from Consul Viosca at La Paz, Lower California, addressed to me on the 16th January, 1883, from which it appears * * * that on the 2d January, 1883, Consul Yiosca addressed a communication to the judge of first instance, in which he stated the facts in the Adriana case to him, and further that Captain Caleb had been kept in strict “incommunication” from any one since the period of his arrest; that Captain Caleb having informed him that his presence was necessary on the vessel, he requested permission of the collector of the port to be allowed to go aboard of her, which permission was denied; that he protested against all these acts, and requested the judge to release and discharge the captain from custody, to which note no reply had been made up to the 16th of January; that proceedings are being conducted against both the vessel and the captain, which proceedings may, Consul Yiosca fears, be lengthened out on account of the absence of the judge.
[Page 623]Referring to Consul Viosca’s dispatch, your attention will be arrested by the acts of the Mexican authorities of which he complains, and particularly by the fact that the captain was in custody as late as the 16th January, 1883, and that bail had been offered and refused, although he was ill* * * and in which he thinks some action should-be taken by me before the Mexican Government towards obtaining the release of Captain Caleb and the Adriana.
I have not complied with Mr. Viosca’s suggestions for the following reasons:
- 1.
- As appears from the note addressed to the consul by the collector, the vessel was seized for violating section 1 of article 86 of the revenue laws of the country. If the facts be as stated the seizure was proper. All I could have applied for would have been for an investigation of the case, and this investigation, according to Consul Viosca’s dispatch, was going on when he wrote.
- 2.
- Smuggling is, by the laws of Mexico, a penal offense. Parties charged with a penal offense, which is punishable by imprisonment at hard labor, are not entitled to bail. Captain Caleb was charged with smuggling. Had I requested that he be admitted to bail I would have been referred to that law.
- 3.
- It requires some sixteen days for a communication to reach La Paz from this city. Before an answer, even if favorable, would have the time to arrive at his destination, the case would have been, probably, decided.
To be able to attempt to protect the parties, however, as far as I could, I telegraphed Consul Kelton at Mazatlan to ascertain from Consul Viosca the then condition of the case, and to telegraph his reply. (There is no telegraph from here to La Paz, and the communication between Mazatlan and La Paz is, I am informed, fortnightly.) This would, if my requests are complied with, furnish me with the required information at least two weeks earlier than I could obtain it by mail.
What appears to me a most serious and important matter in this case is:
- 1.
- The act of the Mexican authorities in refusing to allow Captain Caleb to have access to the United States consul when he was arrested.
- 2.
- Their refusal to allow him to consult with counsel before being called upon to plead.
- 3.
- His not being allowed to communicate with any one until after he had given his statement to the customs officers.
- 4.
- His being forced (if it be true) to make statements from fear of bodily harm if he refused.
- 5.
- The refusal of the collector to permit the United States consul to visit the vessel.
I understand it to be the right of an American shipmaster to have access to, and the proper assistance of, the United States consul at the foreign port where his vessel or himself is in trouble. I understand that it is not merely the right, but the duty of such consul to go aboard an American ship when the vessel or her captain or crew are in trouble. The denial of these respective rights by the Mexican authorities to Consul Yiosca and Captain Caleb was, in my opinion, at least, unjustifiable. The refusal of those authorities to permit Captain Caleb to procure counsel, and their isolating him until certain statements had been obtained from him, is, I think, in violation of Mexican law, and I should not have hesitated to bring the matter at once to the notice of Seňor Mariscal, if it had not been that the reason for my remonstrance ceased to exist before Consul Viosca’s dispatch was received. You will have seen that [Page 624] the vessel arrived at the port of La Paz on the evening of the 1st of January, 1883. As the captain’s protest was made on the 4th of January, 1883, it is evident that he had been allowed to communicate with the consul. As on the 16th of January, 1883, the case against both the vessel and her captain was proceeding, it is to be supposed that they had been provided with counsel.
Still, if the authorities have the power to deprive an American shipmaster of the right to employ counsel to defend him and his ships when proceeded against for a day, they may prohibit him from doing so at all; so also with regard to refusing to allow the consul to visit the ship. No better evidence of the wrong such proceedings may produce could be found than in the case under consideration, where, by the process resorted to, statements have been extorted from Captain Caleb which will be relied upon for the condemnation of his vessel and cargo, and for inflicting upon him an ignominious punishment. Whether a judgment of condemnation of the vessel and crew or sentence pronounced against her captain which rests upon testimony thus obtained should be submitted to, may become a question after the judgment shall have been pronounced.
As to the case in hand, however, the evil had been done and I could only have presented the question as one for the future, and this I have not felt myself authorized to do in the absence of instructions.
I am, &c.,