No. 395.
Mr. Morgan
to Mr. Frelinghuysen.
Legation of
the United States,
Mexico, May 8, 1883.
(Received May 25.)
No. 612.]
Sir: I now inclose a copy of a dispatch from Consul
Viosca (No. 7, 17th April, 1883), and a copy and translation of the document
therein referred to, which appears to be a copy of the judgment pronounced
in
[Page 647]
the criminal proceedings
instituted against Captain George Caleb and the crew of the Adriana charged
with smuggling.
Captain Caleb has been sentenced to five years imprisonment, and the Crew
have been declared not responsible. Their release has been ordered; but
only, as you will observe, upon their furnishing bond to await the decision
of the superior court to which the case goes, by law on appeal.
The document sent is not a transcript of the record, and therefore it is
quite impossible, if it would be proper, for me to express any opinion as to
the legality of the proceedings. Their harshness, however, appears to me too
patent to require comment, and that the penalty inflicted upon Captain
Caleb, admitting that the judgment was right (upon which point I express no
opinion) is, I think it must be admitted, outrageously rigorous not to say
inhuman. For, after all, what was the man convicted of according to the
judgment? Of having transferred from his vessel to another vessel three
parcels without its being ever stated in the judgment that he had
transferred them with the view of their being smuggled into the country.
Besides, the contents of the packages are not stated. The articles they
contained may not have been dutiable. Be this as it may, they could have
been but of small value, as they were conveyed, if conveyed at all, upon the
deck, or in the cabin of the vessel, for, as you will see by the judgment in
the case against the ship (inclosure 1 in my No. 611), when she arrived at
La Paz her hatches and bulkheads were intact.
In point of fact a sentence to five years’ imprisonment is, in the condition
of health in which Captain Caleb finds himself (according to the statement
of Consul Viosca), to condemn him to death by torture.
I have therefore again requested Consul Viosca to furnish a complete
transcript of the record, as well to the Department of State as to this
legation.
As the matter is of great importance, not only to Captain Caleb but to all
American shipmasters, and as the case is an appeal, I take the liberty of
suggesting whether it would not be possible and well to have the question of
the legality of these proceedings brought up for decision by the federal
supreme court. This could, I think, be done by applying for an “amparo” from
that tribunal.
I do not doubt that when you read the judgment inclosed herein your attention
will be challenged by the fact that while the American citizen has been
severely punished, no attention whatever has, as is admitted by the judge,
been paid to the captain and crew of the Inteligente or to the members of
the house of Pablo Hidalgo & Co., the latter of whom sent the
Inteligente to meet the Adriana for the purpose of doing the smuggling, and
the former having been the parties who were smuggling (if there were any
smuggling in the case). As an excuse for this, the judge says that their
capture had not been effected. As regards Hidalgo & Co., as they reside
at La Paz, it is to be supposed that they could easily have been arrested.
As regards the captain and crew of the Inteligente they were on that vessel
when she was seized.
I am, &c.,
[Inclosure 1 in No. 612.]
Consul Viosca to
Mr. Morgan.
United
States Consulate,
La
Paz, April 17,
1883.
Sir: As stated in my dispatch of April 12,
1883, the district judge has rendered sentence on the trial against
Captain Caleb, mate, and crew of the Adriana, the 16th of the present
month. Captain Caleb, being declared guilty, has been condemned by the
[Page 648]
court to five years’
imprisonment. The mate and crew, not found guilty, have been acquitted
and released from prison.
I have the honor to inclose copy of the sentence pronounced by the judge,
containing the abstract of proceedings and his preliminary
considerations wherein he exhibits the motives for his decision. The
said decision has been appealed to the circuit court by the counselor
for Captain Caleb, and I will wait the result of the said Appeal to
inform the legation of the same. In the mean time Captain Caleb is so
exceedingly ill that I have doubts of his surviving the above sentence
for any great length of time.
Please notice also the contradiction set in by the district judge,
between the two written sentences, the civil and criminal. In the first
named, the crew’s testimony is not lawfully accepted, because they are
considered parties to the case; and on the criminal sentence the said
crew are declared innocent by the said judge from the first to last of
the charges brought against them; therefore their testimony was good and
lawful, according to the last decision, from the beginning of the
proceedings.
I am, &c.,
[Inclosure 2 in No.
612.—Translation.]
Criminal proceedings against Captain Caleb and
crew.
In the criminal proceedings instituted against George Caleb and the crew
of the schooner Adriana, the following sentence has been pronounced:
Considering the proceedings instituted against George Caleb, a
citizen of the United States, captain of the schooner Adriana, and
against the crew of said vessel, viz, William Richner, Fritz
Brunckhorst, Matthew Sullivan, and Benjamin Mollin, the first of
whom (Caleb) is charged with smuggling, and the others as his
‘accomplices therein; considering, first, that the summary
proceedings resulted in establishing the offense, and the seizure of
the Inteligente with the goods found on board of her; that by the
confession of Caleb made before the administrator of the
custom-house and the witnesses who subscribed to it, as well as by
the testimony of Franco and Nelson, which established Caleb’s guilt;
third, that although Captain Caleb does not stand by the statement
made in his first deposition, the circumstance that no other vessel
was in the bay of Los Frailes, the place of capture; an examination
of the marks on the goods seized, together with an examination of
the goods of the house to which Caleb said he was consigned; the
declarations of employe’s of that house, Valdorinos and Gilbierto
Padilla, Fourth, considering also that the bay of Los Frailes is not
a point open to commerce and still less to foreign commerce. Fifth,
considering that although it is certain that the crew referred to
must have assisted in the reshipment of the contraband goods, they
cannot be held responsible as accomplices in view of the rigor of
naval discipline which converts them into the passive, innocent, and
involuntary instruments in the execution of his orders. Sixth,
considering in respect of the house of Pablo Hidalgo & Company,
who were charged as participators in the crime which is now being
passed upon, and the crew of the Inteligente, none of whom have been
captured.
In conformity with articles 86, sec. 1, and 87, sec. 6, of the tariff
laws of the 8th November, 1880, it is decreed: First, George Caleb
is sentenced to five years’ imprisonment, and his name is to be
published in the papers; second, the five years to begin to run from
the date of the final judgment of imprisonment; third, William
Richner, Fritz Brunckhorst, M. Sullivan, and Benjamin Mellin are
acquitted, and are released on bail to await the result of the
decision of the case on appeal; fourth, that proceedings be taken
against the house of Pablo Hidalgo & Co. and the crew of the
Inteligente; fifth, this judgment is sent to the superior court for
its revision.
Thus done in the territory of Lower California, &c.
- M. GARFIAS.
- L. G. CAVALLERO,
