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sion the fullest evidence that I was innocent of the offence, and that no such offence had been committed by any one. The proofs also show in the fullest manner the entire transaction with Cortez, by which I received a transfer of his property on my ship, and that the Haytiens had full information of all the particulars thereof.
It seems absurd, as it is fruitless, to discuss the regularity and legality of judicial proceedings on a trial for an offence known to be fictitious. It is belittling the Department of State to a commission to supervise the proceedings of a moot court. The bald fact stands prominent that a criminal charge was fabricated, a pretended trial enacted, and a sentence pronounced and executed, whereby I was despoiled of my property and subjected to a horrible imprisonment.
No word of denial can be interposed to this proposition. Why, then, should I not have immediate reparation? Why should not my property be restored to me, and satisfaction rendered for the sufferings and injuries I have been personally subjected to ? Why should I be compelled to await the result of inquiries into the regularity or legality of judicial proceedings which are already known to have been baseless ] Why should the Department of State permit itself to be trifled with, in discussing legal technicalities about a state of facts known never to have existed ?
But to comply with the direction quoted in the beginning of this paper, I proceed to state the exceptions taken by my counsel on the trial, which are believed to be valid :
1. Violation of the 24th article of the code of criminal instruction, and of the sacred right of defence, in which this article enacts that a copy of the verbal proceedings should state the offence, and that the written declarations of the witnesses should be delivered gratuitously to the accused, or to his counsel. Now, in spite of the reiterated demands of the appellants verbally, as also by request to the chief judge of the criminal court, and by motion at the bar, the said copies were arbitrarily refused, the chief judge confining himself to an offer of said papers during the session of the court.
2. Violation of article 200, same code, and of the sacred right of defence, in which Thomas Collar and John H. Brown, having been provided with counsel, who could not assist them, Mr. Laveaux, in the interest of the law, remarked to the court that the accused were partners in the crime, and on his motion Messrs. Clavier and Guigeron took up the case; but on the next session of the court the accused declared that they had chosen for their counsel Messrs. Lin. stant, Radine, and Laveaux, in place and stead of the counsel which had been assigned them by the court. This choice of new counsel was equivalent to the revocation of Messrs. Clavier and Guigeron, as this new choice had been made in their presence. Messrs. Laveaux and Radine remained the only counsel for the accused. Subsequently, these last-named counsel were forced to abandon the case, and the accused, not having been provided with new counsel, the result was that they were condemned without defence.
3. Violation of article 199 and 202, of the same code, and violation of the sacred right of defence, in which the chief judge, or his substitute, in examining the aforesaid Thomas Collar, who is ignorant of the French language, and in bringing to his notice and making the admonitiou prescribed by the law, article 201 and 203, was not assisted by an interpreter; consequently the aforesaid Thomas Collar must be considered as not having received the admonition prescribed in article 203.
4. Violation of the rule of competency, and violation of the power vested in the private counsel of judges, who are only a court to examine if the indications were sufficient to send them before the criminal court, and not to declare if the facts imputed to the accused were true, which they assumed to do.
5. The government attorney having required, and the chief judge of the criminal court having caused to be read several depositions of witnesses not present in court, these depositions should have been translated by the interpreter. Furthermore, the chief judge having declared the pleading closed, the summing up was made likewise, without furnishing a translatiou to the accused, Thomas Collar.
6. Martial law having been declared by the President of Hayti, on the 10th July of that year, the national guard were by this fact inobilized; said martial law existing even until now in full force, it is prohibited by article 216 that a jury should be composed of military men. This jury was consequently null and void, as the citizens composing it were soldiers, non-commissioned officers
, and officers of the mobilized national guard, and the mobilization of the national guard caused the citizens who composed the jury to cease to be citizens, and they in fact were military men.
7. Violation of article 265 of the code of criminal instruction, in which the necessary interpreter to assist the accused Thomas Collar, who does not understand the French language, did not take the necessary oath required to make his acts valid according to said article, the fact of being a public interpreter not dispensing with the necessity of taking a new oath in present case.
8. Violation of article 304 of the code of criminal instruction, in which it is prohibited to mention the answers of the accnsed, and the contents of the depositions of witnesses not present, notwithstanding which the proceedings of the criminal court show that not only the answers of the accused, but likewise the depositions of absent witnesses, were admitted.
9. False interpretation and false application of articles 5 and 6 of the code of criminal instruction, which are irrelevant to the matter. Pelletier and his associates were not accused of counterfeiting national money having circulation, nor of national bonds, nor of crime against the security of the state.
10. Excess of power, false interpretation, and false application of article 3 of the law of 8th April, 1815, and of article 210, 20, 44, 324, 326, of the peual code, and violation of the rule of competence, as in effect it appears by the observations of Daunies, by which the law of 1st November, 1814, was abrogated; that the Senate of 1815 had only in view to define local piracy of the country; that is, piracy committed by Haytiens, so that any foreigner accused of piracy is, after the instruction of his process, remitted into the hands of the representatives of the country to which he belongs, to be there judged. There is no exception to this rule, only in case that piracy was accompanied by murder. It was so decided by the court of appeals, by its decree of 23d May, 1821. Piracy is a compound crime, composed of different facts and elements. The pretended theft with force of arms, menaces, and violence committed in open sea on board the William, constitute in the present case the fact of piracy ; consequently one would not be able to detach this pretended theft with force of arms, with its circumstances, and apply to it article 326 of the penal code, and to make piracy a simple offence, punishable by article 3, of title 2, of the law of 1815.
11. Further violation of the rule of competency, abuse of power, and violation of article 5 of the law of 1815, and article 4 of the law of 19th November, 1829, in which piracy and slave traffic are governed by special laws, which prohibit postively the trial of foreigners accused of slave traffic and piracy, unaccompanied by murder; therefore in this present case it was not necessary to know or question if Pelletier and associates were to be sent before another court, he not being amenable to any Haytien court, having not committed murder. Neither was it lawful to inquire what punishinent was applicable to his case. The incompetence of the Haytien court is therefore radical and absolute, and as such it should have been presented, and it was the duty of the tribunal to officially declare incompetency.
12. Abuse of power in the fact that the theft, with violence and threats, attributed to Pelletier, a foreigner, by Cortez, another foreigner, if true, would have been committed in the public domain of the open sea. Therefore this fact escapes the Haytien jurisdiction, and in taking cognizance of this case she has usurped a foreign jurisdiction, and committed an abuse of power susceptible of placing in danger the security of the state. It results from the instruction of the process that the pretended attempts of piracy and slave traffic, of which Pelletier and his associates are accused, were committed at Fort Liberty ; that is to say, after the departure of the William from Port-au-Prince, therefore more than five months after the pretended theft with force of arms. Thus it follows that there was not the least connection between the case that Cortez accomplished and achieved in Grand Caymans, a dependency of Great Britain, and the pretended attempts at piracy and slave traffic at Fort Liberty.
13. Excess of power, and violation of the sacred right of defence, when the judge of instruction, in causing himself to be assisted in the examination of Thomas Collar by an interpreter, did not cause the said interpreter to take the usual oath. The omission of taking the oath is equivalent to the total absence of the interpreter, and Thomas Collar appears to have been tried and condemned without having had a hearing.
Objections to the judgment officially presented by Andre Germain, government attorney, attached to the court of appeals :
1. Violation of article 257 of the code of criminal instruction, in which the verbal process of the council of judges does not show that the jury had been notified of the character of the informer.
2. Violation of articles 269 and 270 of the code of criminal instruction, in which piracy being a complex crime, the chief judge should have put the questions which constitute the crime of piracy.
3. Violation of article 2 of the penal code, in which the attempt of the crime of piracy is composed of two elements, the two questions relative to these two elements should have been put to the jury.
4. And last, abuse of power of the chief judge of the criminal court, resulting from article 251 of the code of criminal instruction, where a witness, summoned and present, was permitted to testify without taking the oath.
The following Haytien statutes are referred to by Mr. Lewis, United States commercial agent, in his protest of 17th August, 1861, filed in the Department of State, and are believed to be conclusive as to the incompetency of the Haytien courts to try Pelletier and his associates for the crimes with which they were charged. (Laws of Hayti, law of 24 August, 1808, vit. 1, article 5. of Hayti, law of sth April, 1815, vit. 2, article 5.)
These statutes provide that foreigners accused of piracy and slave traffic, in the manner in which Pelletier and associates were accused, shall be remitted to their own government for trial.
In the same protest of Mr. Lewis is set forth a violation of Haytien laws, (article 211 of the criminal code,) which required the papers abstracted from me, and which were necessary to my defence, or copies thereof, to be delivered to me.
An illegal proceeding of the court of cassation, and which is claimed to invalidate their decree, is the alteration of the verdict of the jury by striking out the words " by force of arms and threats of assassination."
The statutes of Hayti require that in case of an appeal from a criminal sentence, when the appellant is deprived of his liberty, every business shall be put aside, and such appeal shall be decided within thirty days, yet in my case nearly two months elapsed before the decision of the first appeal, and ten months before the decision of the second.
It is claimed by my counsel, Bandeauf, in his exceptions to the sentence passed upon me at Cape Haytien, that the court of cassation exceeded its power (which extends only to reviewing and affirming or reversing a judgment of an inferior court) in ordering what judgment should be given against me, and this by a different court from the one which tried me, and without submitting the
H. Ex. Doc. 260—7
case again 10 a jury, or allowing any defence before the new court to which I was sent. This objection is believed to be fatal.
The pretended conviction, irrespective of proof existing in the hands of the Haytiens that the principal charge against me was baseless, was against law and evidence, or rather without evidence, or even the pretence of evidence of guilt in any respect.
Relying, therefore, first and mainly upon the full proofs furnished of my innocence, and of the same being known to the Haytien government, confidence is also reposed in the above-named legal objections to the judicial proceedings.
2. I am directed to present in the second place, “ irrespectively of jurisdiction, legality or illegality, the grounds on which I claim that the course of justice was defeated or perverted by the interference or the undue influence of the executive government of Hayti or its agents."
The following are stated as instances of the defeat or perversion of the course of justice by the direct action of the executive government of Hayti, or its agents :
The irregular and unlawful visits by armed forces to the bark William in the night time, without judicial warrant, under the direction of the minister of police.
The wanton and insulting outrage upon the American flag, by trampling over it with a party of soldiers, headed by General Carrié, on the same occasion.
The bribery by the same minister of police of the five sailors who were iu jail for stealing, and the efforts to bribe others to make false affidavits against me in support of the declaration of Binar.
The torture of the boy Peter, to force him to testify against me, or punish him for refusing so to do.
The placing my clerk, Castay, in the stocks, for refusing to sign a false inventory.
The threats to John H. Brown and others, and putting them in double irons, to force them to testify as Miranda had.
The ironing and dragging away to a cell of Picault, for calling attention to a forgery in his examination, and denying its truth.
This course of proceeding toward all the witnesses.
The refusal to deliver me and my vessel and property to the United States commercial agent, when ordered by the commission instituted to examine and decide whether I was amenable to Haytien law for any offence charged against me, and which decided that I was not so amenable.
The abstraction and retention of my papers by the minister of justice and the public prosecutor, they being well apprised that said papers contained proof of my innocence.
The boarding of my ship by General Carrié, against the protest of Mr. Lewis, of 17th August, 1861, before the trial, and carrying off my money, bullion and plate, and other property.
Sending to Santa Martha to procure Caño and Cortez to sustain a fabricated charge, making them, so many months after the transaction to which it related, enter a false protest before the British consul at Santa Martha, while all the time they had the evidence of the falsity of these charges in their own hands.
The enforced withdrawal of Mr. Delandos from my defence.
The seizure and imprisonment of witnesses without any charge, so that I could not procure their attendance.
The imprisonment of my steward for swearing that I had not been guilty of any wrong towards Cortez.
The imprisoument of Mr. Laveaux, one of my counsel, for alluding to the extraordinary means resorted to produce a conviction, and to the abstruction of my papers, so that they could not be used in the defence.
The threats to Linstant, my other counsel, for attempting to show the incompetency of Miranda, which drove him from the court and the case.
The going out of Lilavois, the public prosecutor, with the jury.
The private message from the president of the republic to the president of the court of cassation, just as the court, under the advice of the government counsel, Andre Germain, seemed about to decide in my favor.
3. In the third place, I am directed to present a statement, "irrespective of the legality of the judicial proceedings, of what excess of severity, confiscation or cruelty, not warranted by the laws of Hayti, or the laws of nations," I was made to suffer.
The following is a brief statement, in compliance with this direction, of the cruelties inflicted upon me:
Double irons and a dungeon at Fort Liberty immediately on my seizure.
Insult and violence from the populace and soldiers, pelting with stones and dirt.
Conveyed from Fort Liberty to Cape Haytien, crowded in the hold of a small schooner with six other persons, in double irons.
Marched through town in irons, stoued by the mob, lodged in close dark cell, with four other persons.
Conveyed to Port-au-Prince, a voyage of 11 days, in hold of small schooner, crowded in the same way, in double irons.
Marched three miles through town, by different streets, in irons, assailed and pelted, and cut by infuriated mob.
Louis Legallin, one of the boys, murdered, by being dragged through the streets by the heels, his brains beaten out on the stones.
Insulted and robbed by General Carrié. Attempted assassination by poison. Confined in dungeon without light or air, in irons, fastened by shackles to an iron bar.
Taken out by General Carrié's order, and tied to a tree to be shot, and sol. diers with muskets paraded before me and taking aim at me, while an appeal was pending, which, by law, stayed proceedings on the sentence, for the purpose of inflicting unnecessary and unwarranted pain and suffering.
Deprived of air, of light, of food, of communication, sick and denied remedies and medical aid.
Put in under-ground dungeon, beneath a privy, for two months, for making complaint to the minister of justice of the robberies committed by General Carrié, against the protest of Mr. Lewis.
This treatment continued with little variation as to dungeons, irons and starvation at Fort Liberty, Cape Haytien and Port-au-Prince, for more than a year and a half, about four months of which time was before any pretended conviction or trial.
Marched, while weak and sick, from Port-au-Prince, across the country about 250 miles, and over mountains, to Cape Haytien, beaten and mangled, a journey of more than 23 days. This removal made to prevent the French minister from executing the orders of his government to take some measures in my favor.
The confiscation of my money and property to the amount of $50,000, exclusive of ship and provisions, which is not subject to confiscation for piracy, even when such crime is committed, either by the laws of Hayti or the laws of nations. Respectfully submitted.