plain of the maladministration of the law in Peru, and therefore British subjects are not the only foreigners who suffer in conseI have, &c., quence. The Earl of Derby. EXCELLENCY, EDWARD MARCH. (Inclosure.)—Mr. March to Señor Aguero. Lima, December 30, 1874. In the expectation of hearing from the Peruvian Government in regard to the trial of the two British subjects, Bell and Sterling, which I believe is now concluded, I have not addressed myself earlier to your Excellency upon the subject. So firmly persuaded am I that, through untoward circumstances, there has been an unfortunate miscarriage of justice in the matter, that I feel constrained to once more call the serious attention of the Government to the facts of the case. In my despatch of the 19th of October I had the honour of acquainting your Excellency with some particulars relating to the measures taken against those persons and the occurrence, which gave rise to the proceedings. I need not, therefore, recapitulate them on this occasion, but only point out to your Excellency the grounds upon which I base my opinion that in this matter the sentence of 9 years' imprisonment recently passed by the Supreme Court upon Bell and Sterling is not warranted. These are— (1.) That Bell and Sterling had both been liberated after a detention of about 6 months in prison, during which time nothing was proved against them. (2.) That Downie, who would appear to have been one of the persons most implicated, bad, by some means, been allowed to regain his freedom, as also the Peruvian citizen Borjia. (3.) That it was only after Bell and Sterling had lodged a claim for damages for false imprisonment that they were re-arrested and active proceedings taken against them. (4.) That the Judge who acted in the matter was himself at the time under the ban of the tribunals of his country, and therefore quite unfit to exercise judicial functions. (5.) That the deposition of Bell had been criminally tampered with by an erasure, without which he could not have been convicted. (6.) That, being under 18 years of age, Bell should have had a curator ad litem appointed to him, in accordance with Article 159, paragraph 3, of the Código de Enjuiciamiento Penal; and that by this omission the proceedings against him are, by the express enactment of the law, null and void. (7.) That both Bell and Sterling should have had the assistance of interpreters, according to Article 32 of the same Code. (8.) And, finally, that the Judge is asserted to have refused the evidence of some of the witnesses produced for the defence, and, by unduly protracting the case, to have caused the loss of the testimony of others who had left the country. I think your Excellency will see from what I have advanced that there is enough to vitiate the legality of the various judgments pronounced in the case. Other examples might be cited, tending to show that considerations favourable to the accused were left unnoticed by the judicial authorities; as, for instance, the fact of Bell not having been produced in Court, in order that, from his personal appearance, some opinion might be formed of his youth; that in the matter of the erasure, when first discovered, Bell's counsel applied that a preparation should be used to develop what had been written previous to the tampering with the declaration, but of which no notice was taken; also the fact that most, if not all, the witnesses who deposed against the prisoners apparently shared in the disturb ance which led to these proceedings, and whose testimony, therefore, partook of an ex parte character. I cannot conceal from your Excellency the grave concern with which I regard this matter, since, from the attention I have given it by careful personal inquiries, my conviction is, that in the course of the very protracted proceedings against Bell and Sterling serious irregularities, if not actual departure from the letter and spirit of the law, have taken place, and I have little doubt that Her Majesty's Government will concur in this view of the case. Under these circumstances I beg leave to suggest to your Excellency the expediency of this grave matter receiving the consideration it merits at the hands of the Executive, in order to determine the steps that may be taken, either by appeal to Congress or otherwise, to remove from these British subjects the grievance which they now suffer, and to which I do myself the honour of calling the attention of the Peruvian Government. I have, &c., Señor Aguero. EDWARD MARCH. No. 52. Mr. March to the Earl of Derby.-(Received March 1.) (Extract.) Lima, January 25, 1875. I BEG leave to inclose, for your Lordship's information, a copy of a despatch I have received from Her Majesty's Minister at Bogotá. The Earl of Derby. (Extract.) EDWARD MARCH. (Inclosure.)-Mr. Bunch to Mr. March. Bogotá, December 15, 1874. I HAD the honour to receive, yesterday, your despatch of the 31st of October, by which you are so obliging as to put me in pos session of certain facts connected with the piratical behaviour, on the coast of Peru, of the steamer Talisman, sailing under British colours. I was already aware, from information received through Her Majesty's Acting Consul at Panamá, of the proceedings of this vessel, and had spoken to the President of Colombia respecting her. By the "South Pacific Times" of November 14, received yesterday, I see that the Talisman had been captured by the Peruvian corvette Huascar in the Bay of Pacocha. There would, therefore, seem to be no probability of her now visiting any Colombian port. I beg leave to thank you for your despatch. E. B. March, Esq. R. BUNCH. No. 53. Mr. March to the Earl of Derby.- (Received March 1.) MY LORD, Lima, January 27, 1875. I HAVE the honour to transmit to your Lordship a translation of the reply of the Peruvian Government to the demand which I was instructed, in your Lordship's despatch of the 8th of October last, to make upon them in the case of Mr. Higginson, who was taken out of the British steamer Santiago, in the Bay of Callao, under an order from the Captain of the Port, and thrown into prison, where he was detained for a period of 6 days. : I have also the honour to inclose the following documents:1. A translation of the order under which Mr. Higginson was removed from the Santiago, and imprisoned. 2. The Acting Consul's demand for the immediate release of Mr. Higginson. 3. A translation of the Captain of the Port's reply. 4. The depositions taken by the Acting Consul on the arrest of Mr. Higginson. 5. A certified translation of the judicial proceedings followed against the prisoner, including the order for his release. These papers and those already furnished to your Lordship complete the material portion of the case of Mr. Laurence Higginson. In view of the stage to which this question has arrived, and the concluding paragraph of your Lordship's despatch, I have abstained from making any observations to Señor de la Riva Aguero upon his statements, confining myself to simply acknowledging the receipt of his note, and stating that I would communicate it to your Lordship. The Minister attributes the long delay in answering my despatch of the 18th of November to the heavy work thrown upon him by the disturbed state of the country, which has necessitated his attending to the Ministry of War as well as that of Foreign Affairs; but I should observe that dilatoriness is a standing feature in all the transactions between this Legation and Señor de la Riva Aguero's Department, and that it is not unusual to receive an acknowledgment of a despatch with an intimation that it has been referred to some other Government office, and hear nothing more upon the subject. Señor de la Riva Aguero then proceeds to state that, on having been made acquainted with the facts of the case now in question, his Government hastened to order the Prefect and the Captain of the Port of Callao "to liberate Mr. Higginson, unless there existed any reason to the contrary on the part of the judicial authorities." * But there is a material difference between this record of the fact and the fact itself, for the Minister, in replying to the request for Mr. Higginson's release, said :-"As soon as I received your note of yesterday, relative to the imprisonment of the butcher, Higginson, of the steamer Santiago, the necessary directions were issued.. to place him at liberty, since there intervened no judicial order [for his imprisonment], and it was not quite certain by whom it [the imprisonment] had been authorized" (M. de la Riva Aguero to Mr. Nugent, July 21, 1874, inclosed in the despatch of July 27, 1874); thus recognizing the illegality of the proceeding, and asserting the inviolability of Article XVII of the Constitution of Peru, which is to the following effect: :-"No one can be arrested without a written order from a competent Judge or from the authority charged with the preservation of public order, except in cases of in fraganti delito, it being necessary in any case that the arrested person be placed within 24 hours at the disposal of the corresponding Judge, the executors of the said order being bound to give a copy thereof whenever requested to do so." Again, Article LXXII of the Penal Code, quoted, but not in full, by Señor de la Riva Aguero, towards the end of his communication, lays down :-"When the accused or the denounced is a transeunte [not a resident], and without known property in the place, is of bad repute or a fugitive criminal, he will be immediately captured..." Mr. Higginson was not a person of this description, but, on the contrary, a workman in the employ of a large and responsible Company, with goods and chattels, and in the receipt of wages. Also, in Article XVI of the Treaty existing between Peru and the United States,† it is agreed (I translate from the Spanish version) that "no citizen of either Republic shall be imprisoned without there being first a warrant of imprisonment and of an order signed by a legal authority (except in cases of in fraganti delito), and in every case he will be brought before a Judge or other judicial authority, to give his declaration, within 24 hours from the time of his arrest, and if, within that period, his declarations have not been taken, he will immediately be set at liberty." In the Treaty between France and Peru it is agreed as follows:-"Ils ne pourront être arrêtés ni *August 29, 1867. Vol. LVIII. Page 509. + September 6, 1870. Vol. LXI. Page 1289. expulsés du pays, ni même transportés d'un point à autre du territoire sans motifs graves, sans que les formes légales soient observées à leur égard, et avant que les causes qui motiveront une pareille mesure aient été, en temps opportun, communiquées aux Agents Diplomatiques ou Consulaires de leur nation respective" (Traité d'Amitié, de Commerce, et de Navigation, conclu le 9 Mars, 1861, entre la France et la République du Pérou*)—advantages which other Treaty countries may claim by the clause which extends to their subjects the privileges accorded by Peru to the most favoured nation. From the foregoing it is evident-even supposing, as Señor de la Riva Aguero asserts, that the Peruvian authorities were justified in acting upon the charge preferred against Mr. Higginson-that the laws of Peru were not. complied with, and that, instead of the order for the arrest and imprisonment being made by the judicial authority, and legal proceedings instituted within 24 hours, the order (dated July 18) emanated from a civil functionary, and the declaration of the accused was not commenced until the 21st of July, or 72 hours after the arrest and imprisonment; whilst the proceedings were not brought to a close before the 24th of the same month, notwithstanding that these were confined to a short examination of the accuser and the accused-a formality which, but for the state of the law in this country requiring the whole of the proceedings to be conducted in writing, might have been terminated in less than halfan-hour. This is evident in Inclosure 5. By a perusal of the same inclosure it also appears that the Minister's allusion to "witnesses whom it was necessary to examine in order to establish the question of jurisdiction" has been made under a misapprehension, since there is no record of any one besides the prisoner and his accuser having been examined by the Judge-a notable fact considering the gravity of the charge and the numerous witnesses on board the Santiago who could have thrown light upon the occurrence. The statement that the accuser of Higginson presented himself before the authorities in a bleeding condition is surprising, and had not been made by the Peruvian Minister for Foreign Affairs in his despatch of the 21st of July, when, it is reasonable to suppose, he was fully acquainted with the circumstances of the case upon which he was adopting a definite course of action. I have no doubt that the Minister has been misinformed, but I am unable, through the absence of the captain and the purser of the Santiago, to report to your Lordship positively upon this point. having, however, been established beyond question, and to the satisfaction of the local judicial authorities, that the wound had been inflicted in Panamá, in the middle of June, it does not seem * Vol. LII. Page 122. |