to the Government of the Free Hanseatic City 1 of Hamburgh, requesting the Senate to prononce a decision on the points above stated.

2. Should the Senat undertake this responsibility, Earl Russel will cause a statement of what has passed between the two Governments in this matter, as well as Mr M. White's own statement of his case, to be laid before the Senate on the part of Her Majesty's Government.

Copies of these documents will likewise be communicated to Mr Sang to enable him to lay before the Senate such observations thereupon, or rejoinder thereto, as he may think necessary in the interest of his Government.

3. Mr Sang will cause to be laid before the Senate a statement of the case on behalf of the Peruvian Government, and he will communicate a copy of his document to Her Majesty's Govern

ment.

4. The decision of the Senate of Hamburgh, or of the arbitrator, whoever he may be, who may be accepted by the two Governments in case the Senate of Hamburgh should decline this responsibility, shall be considered by both parties as final, and immediate effect shall be given thereto.

London, July 1863 1.

Le capitaine Melville White évalua sa demande à la somme de 59,740 livres sterling ou 1,493,500 francs. L'exagération de cette évaluation était évidente, car le gouvernement de la Grande-Bretagne, dans une lettre du 26 janvier 1863, n'avait exigé, en faveur du réclamant, qu'une indemnité de 4500 livres sterling ou 112,500 francs. Ce fait explique les considérants qui servent de début à la décision intervenue le 13 avril 1864. Cette décision est particulièrement intéressante par le soin avec lequel elle a été rédigée et les motifs détaillés qu'elle contient, contrairement à la plupart des décisions que nous avons reproduites jusqu'ici.

Décision de la commission, chargée, par le Sénat de la Ville libre hanséatique de Hambourg, de prononcer dans la cause du capitaine Thomas Melville White, datée de Hambourg du 13 avril 1864.

The demand of the British Government for an indemnification of 4500 l. in favour of Thomas Melville White from the Republic of Peru, now under consideration, is based on the following points :

1 House of Commons. Paper 482, 13 July 1864, p. 35.

I. The arrest and the long unjust imprisonment of White, founded on a serious but wholly groundless and unsupported accusation.

2. The suffering and annoyances to which he was subjected during his imprisonment.

3. The neglect of the rules and principles not only of Peruvian but of universal law, which was evinced by delaying the trial, and by the manner in which the preliminary proceedings were conducted.

4. His expulsion from the Peruvian dominions, as the result of these unjust proceedings.

As Captain Thomas Melville White has also communicated a statement drawn up by him as claimant, it is to be observed, in reference to that document, that it can only be taken into consideration as being specially referred to in the representations of the British Government.

It appears to be in general a passionate and partial account, with obvious misrepresentations and exagerations, and wherein candour is wanting; for this reason the British Government could not get a clear idea of its contents. The arbitrator has, therefore, only to keep to the official representations of the Government.

The four above-mentioned complaints will now be examined separately:

1. With regard to the first complaint, the unjustifiable arrest and long imprisonment, it is first of all to be shown that White was arrested on the 23 March 1861, and, as his own account of the matter has not been contradicted, he was released on the 9th January 1862. The arrest took place in consequence of a communication made by Romero to the Harbour-Captain at Arica, that he had reliable information that White was the delinquent who had attempted to murder the President of the Republic of Peru, Don Ramon Castilla. Now there can be no doubt that it became the imperative duty of all the authoritiesin consequence of the universally known fact that the President Castilla had been wounded, on the evening of the 24th of July 1860, by a pistolshot, fired by an unknown hand, and that the investigations to discover the author of this attempt had hitherto led to no definite result-to use all means in their power to prosecute inquiries with respect to such a suspected person, after the information given by an official of the Republic.

The crime in question was one of the most serious nature, and the arrest of the suspected person was the less to be avoided, as he was caught travelling and was well known to be without any fixed residence. It therefore remains to be ascertained whether the arrest of White was accomplished according to the precepts of the Peruvian laws applicable to the case.

Now, Art. 18, Tit. IV., of the "Constitution Politica de Peru Reformada en 1860" enacts that no person shall be arrested without a written order of the competent judge, or of the authorities whose duty it is to maintain public order, "excepto in fragrante delito," and that in every case the arrested person shall be placed at the disposal of the proper tribunal within 24 hours. In the present case White was arrested at Callao on the 23d of March 1861, and on the same day, on the application of the Préfect Freyre, there came the order from the Minister Morales that he should be kept in custody, sent to Lima, and there. placed at the disposal of the criminal judge.

By this the above legal requirement was the more undoubtedly satisfied, as at least a preliminary detention of the person caught on his journey must appear to be demanded at once; and if the Préfect Freyre, who apparently had the power of issuing the written order for the arrest, did not do so himself, but left the decision to the highest authority, it can only be looked upon as a proof of his caution and care in the performance of his duty.

The second part of the first point of complaint advanced on the part of the British Government contains the assertion that the imprisonment of White had taken place in an unjust manner, on a serious but unfounded and in no way supported accusation. As a further proof of this assertion, it is said, at page 4 of the statement drawn up in the name of the British Government, that White was, according to the judgment in First Instance, accused of being the instigator only of the crime of murder, and that no other accusation whatever was brought against him. This single accusation was, however, in the course of the proceedings, not only proved to be quite groundless, but that there was no evidence at all, nor a single fact, to give any apparent ground for it. But herein the British Government, irrespective of the correctness of the facts contained in its statement of the matter, proceeds on the erroneous supposition that the rules of criminal procedure in England are to be held good and applied in the criminal proceedings in Peru; but, little doubt as there can be that the rules of procedure to be observed by the courts in any country are to be judged solely and alone according to the legislation in force there, it is quite as certain that in the proceedings in White's case no fault can be found with the Peruvian courts of justice, or with the Peruvian Government, since they were fully justified according to the Peruvian procedure.

The difference between the English and the Peruvian mode of proceeding, which latter obtains also in other countries, consists in the diversity

of the principle observed in the accusation and investigation. In Peru, when there are grounds for suspecting any person, an investigation takes place, during which all means are employed which may lead to the establishment of any crime whatever, without such investigation being limited to the particular crime of which the accused was originally suspected. It is only after the completion of the investigation, which embraces everything that can be elicited during the proceedings, that the Attorney General can proceed to the framing of the formal act of accusation, in which all the facts brought to light in the investigation are to be considered. Then only is the accused put upon his trial, and counsel appointed to defend him; up to this point he has only been the subject of inquisition: the whole of the proceedings, before the time of accusation, are withheld from the public. It is obvious, therefore, that the principles of proceeding on simple accusation, observed in England, cannot, in any way, find application in Peru, and therefore it is not consistent with justice, on the part of the British Government, to reject, as inadmissible, the statements of the Attorney General relating to the first accusation of Romero against White. This view is founded on the erroneous supposition that Romero is the accusing party, and therefore bound by his statements.

It is further, also, to be pointed out, that the assertion that Romero only accuses White of being the instigator of the attempt to murder is in nowise in accordance with the documents; for it was not the first preliminary information given to a subordinate authority, the harbourcaptain at Arica (the only object of which was the arrest of White), but his depositions on oath before the judge, that would then have to be considered as the complaint. But herein also is found the accusation that White was associated with open enemies of the country, and implicated in a plot against the Government of Peru, and it was distinctly stated that he was an obstinate conspirator. Although the sworn statements of Romero and Douglas, which fully agreed with each other, were, in regard to White having himself attempted to murder the President Castilla, certainly only suppositions, yet such positive facts were elicited as proved beyond doubt the hostile feeling of White towards the Government, and led to the fear that he might commit acts which would endanger the peace of the country. It was thus the strict duty of the judge to continue the investigation, with all care and exactitude, as long as other disclosures might be expected therefrom; and so all persons who might be supposed to have relations with the person under inquisition, or to be acquainted with him and his doings,

were examined, except that unfriendly relations with the Republic of Bolivia rendered the examination of persons residing there impossible.

It may here be observed that probably the testimony of Caro, who for this reason could not be examined, and to whom Douglas referred several times in his depositions, would have been of particular value; it was therefore impossible to avoid waiting, at least a reasonable time, for an answer to a request to the authorities of Bolivia, dated 12th July, concerning the examination of Caro.

A glance at the depositions of the accused himself, and of the witnesses examined, will suffice to prove that the charge of Romero was by no means unsupported.

The accused deposes that he is on friendly terms with General Echenique, and admits that he is without occupation, as he believes he will be able to obtain it at Guayaquil by the interest of his friend. He admits that he is totally without means, as he received pecuniary assistance from the British Chargé d'Affaires, which is confirmed by the latter himself.

The witness Douglas deposes to having heard the accused speak ill of the President Castilla, and wish for his fall; further, that the accused. had been present at an assembly at Corocoro, in which a toast had been drunk to the fall of Castilla and the elevation of Echenique, and that it had been stated it would be sufficient for this end to get Castilla out of the way. Caro, a friend of the accused, had told him (the witness), "This man (White) will create a great sensation in Lima”. Deponent has seen bills of exchange from Echenique in the hands of the accused, and knows that he has much intercourse with him.

Andrew Wilson deposes that the accused was thought to be a spy. Romero knows that he frequently travelled to visit Echenique, and that he was in connection with him and Linarez, whilst it could never be understood whence he derived the money for his journeys, as he was without occupation.

Calista Peralta suspects him of being connected with a political association hostile to the Government, from his mysterious manners and the frequency with which he tries to alter his appearance. Brain, Isabel, Dorra. Dauling, Worm, Williams, and others testify unanimously that the accused makes frequent journeys to the Republic of Bolivia and to Lima, without having any known business, and that he is in debt.

At the conclusion of the investigation, the accusation of the Attorney General now declares that White is proved to be an individual without means or occupation, in debt, and without any fixed residence, and at the same time a friend

of notorious enemies of the country; that he was strongly suspected of having attempted the murder of President Castilla, and of participating in plots against the Government; but, as such proofs as the law requires for the purpose of conviction were wanting, the Attorney General proposes that the accused be released from the Instance, but that he be banished from the Republic as a foreigner without occupation and means, and of proved bad conduct.

The sentence of the First Instance is fully in accordance with this proposition; the sentence passed in Second Instance by the Corte Superior, on the appeal in the name of the accused, annulled the previous sentence, and declared the accused quite free; finally, the sentence in Third Instance of the Corte Suprema-which, strange to say, has not been mentioned at all in the statement of the British Government-declares the sentence in Second Instance null and void, and certifies further that White has not only been accused for an attempt to murder, but also of participating in enterprises against the peace of the Republic, and frees him in this latter respect only from the Instance, with the orders that he be placed under the surveillance of the police.

Therefore, not only is the above-mentioned assertion, that the exclusive accusation against White was an attempt to murder, based upon error, but it is evident that the further assertion, namely, that it was proved in the course of the proceedings that this sole accusation was quite groundless, is in manifest contradiction to the documents, which can only be explained by the essential void in the statement of the British Government, occasioned by the omission of the sentence in Third Instance. But it is precisely on this final sentence that a proper understanding of the case depends, whilst all the conclusions drawn by the British Government, being based on the judgment in Second Instance, are valueless, as this sentence itself has been declared void. Moreover, the sentence in Third Instance, in so far as it frees White only from the Instance, is the more justified, as, besides that the accused had by no means fully cleared himself from the grounds of suspicion, the examination of all the witnesses could not take place, on account of the external obstacles which interposed, and it might well be expected that a future examination of the witnesses Caro, Jerr, Maldonado, Pearson, and Ruperto would throw further light on the suspicions against the accused that were not cleared up.

Therefore the first point of complaint is to be pronounced of no force; and now there is to be investigated how far, second, the sufferings and injuries to which the accused was subjected

during his imprisonment give just occasion for a complaint.

2. Here it is to be observed, first of all, that in general, when the question concerns complaints made by a person kept long in prison of such injuries as he has endured during his imprisonment, his own assertions are always to be examined with the greatest caution; and unconditional credence is the less to be given to them, as such complaints very frequently arise in cases where the imprisonment was well deserved, and in nowise too severe. Now, it appears incontrovertibly, from the documents, that White, being at the time of the arrest a foreigner, without occupation, income, or any fixed domicile, was by no means a personage who could lay claim to particular credibility for his statements, and especially not when the matter in question was a claim from which he, according to his own. view, was to receive a good round sum of money. Numerous contradictions and demonstrable falsehoods which he put forward will be noticed hereafter in their proper places. To prove that the British Government, so far as it has sifted the matter, has always given by far too much weight to the assertions of White, it may suffice here to refer to that part of his statement (vide p. 22 ff.) which is described as an extract from the Investigation and Process Documents. It contains, in almost every line, the most evident and grossest misrepresentations of the truth, as, on the one side, everything implicating White is throughout passed over in the extract, whilst what is quoted is often either entirely falsified, or at least so disconnected that the result appears quite contradictory to the documents. For example may be quoted that, according to the statement of White, the sentence in First Instance reads, in its decisive part, word for word as follows:

"Upon which grounds I ought to acquit, and do acquit, Thomas Melville White, as regards complicity in the crime of which he is accused, and generally from co-operating to upset public order; but he must be expelled," &c.

Whereas in the attested English translation, from the documents which he had before him, the sentence corresponding with the Spanish original is as follows:-"Upon which grounds I ought to acquit, and do acquit, from this Instance, Thomas Melville White, as regards," &c.

It is further said, page 30: "Page 139 (of the English translation) contains the sentence passed by the Supreme Court in claimant's case, the substance of which is as follows:

"We confirm the sentence of the Superior Court, acquitting Melville White of the horrible charge of which he has been accused. He must remain under the vigilance of the police."

But it is stated, word for word, on page 139 of that attested English translation:

"They declared null the sentence pronounced by the Most Illustrious Superior Court, in as far as regards that, in absolute manner, it absolves Thomas Melville White, and reforming it, absolved him from the Instance (Instantia) as to the rest of the charges that have weighed against him, and have been cited, and he ought to remain subject to the vigilance of the police."

And in the face of such wilful misrepresentations of the truth, Thomas Melville White maintains by declaration, in place of oath, before Major Rosi, on the 25th of September 1863, "that all the statements contained in the subjoined case, written and drawn up by me, are strictly in conformity with truth."

No weight whatever ought, therefore, to be attached to the assertions of a man so wanting in veracity.

On entering upon the second point of complaint, it is, in the first place, scarcely necessary to remark, that the arrest of White, as carried out, was fully justified, and was effected without any resort to force; for the harbour-captain, Benjamin Mariategni, reports that White submitted without resistance to the order for his arrest, and there is nothing that could support a contrary supposition.

The above-mentioned complaint may be thus specified in detail: that White was kept in custody for a long time incommunicado; that he had been kept, up to the 27th of August, confined in a dirty loathsome cell, without sufficient food, and, lastly, that he had been subjected to torture and ill-treatment. Now, with regard to the first point, it has not been asserted at all that, according to Peruvian law, the Examining Judge has no power to order the imprisonment of a person under examination debarring communication. It would be unjust to deny the judge such power on the general principles of law; it ought rather to be taken for granted that, when a person has been arrested on suspicion of a serious crime, the judge can often only secure the necessary disclosures by preventing all communication with the prisoner, and thus avoid the danger of collusion, by which the investigation might be prejudiced. Besides, according to the Report of Judge Ponce, White was only in custody incommunicado for two days (namely, on the 26th and 27th of March); and Judge Ponce, to prove that the isolation was by по means strict, justly states that even during this time the prisoner found means to elude the order, as, according to his own statement, he received a newspaper from a fellow-prisoner, and found means to have his written complaint printed in the Journal Comercio of the 26th of March.

It is, moreover, fully proved by the depositions of Bauda, Carillo, Milan, and Harzu, who were examined upon oath at the beginning of April, that White, at the beginning of the imprisonment, was not incommunicado, but received frequent visits from his countrymen, and had, moreover, the opportunity of repeating his complaints and threats before fellow-prisoners.

By the same witnesses it has been proved-and this also has been acknowledged by the British Government, but denied by White-that the sum allowed to political prisoners to procure comforts during their imprisonment (namely, one dollar per day) had been repeatedly offered to White, but was refused by him in an insolent manner. His statement, therefore, that he had for days together received no other food than damaged rice is the less credible, as Judge Ponce declares, in his report of the 29th of April 1861, that the food given to prisoners is, according to the legal regulations, tested by the judges every day, and that strict care is taken that it be good and wholesome. With regard to the locality in which the prisoner was, Judge Ponce declares that, so long as the isolation of the prisoner lasted, a place was assigned to him in the courtyard of the prison, which had formerly been the residence of the keeper (castellan), and was airy and by far better than the locality assigned to political prisoners. Ponce further reports, on the 23rd of October 1861, that during the whole of his imprisonment, up to that time, an abode had been assigned to him which freed him from contact with other prisoners, without preventing him from receiving the visits of his friends: in fact, he received frequent visits, amongst others from Colonel O'Gorman. The credibility of these official reports of Ponce does not appear to be at all shaken, for there is nothing whatever against them except the assertions of White, which have been partly refuted by the fullest proof, and which do not appear to be sustained by the slightest probability. The British Government has mentioned nothing that would do so, nor has it referred to the documents contained in his statement, which therefore do not require consideration. But it may be openly stated that the pretended declarations of Henry Cornell, produced in an unattested copy, cannot be attended to at all, since there is no warrant whatever for their genuineness; further, that the voluntary depositions of O'Gorman, on the 28th September 1863, cannot be allowed to have any force as proof, considering that, at that time, two years and a half had elapsed since White's arrest, that nothing was positively known either of the deponent himself or of his relations with White; but these depositions themselves are only calculated to lead to

the conjecture that he was too intimately connected with the interests of White to be willing to give altogether the unbiassed truth. Now and then he is guilty of notoriously false statements; for instance, when he asserts:

"That from the first moment of his incarceration, it was notorious in Lima (where the real perpetrator of the crime was well known), that Captain Thomas Melville White was entirely innocent; and the Government, in a few weeks after his arrest, had positive information, from their own official authorities, that he was, at the time of the attack made in Lima on General Castilla, a thousand miles from that city."

It can only be thought natural that the British Government has not even once appealed to such testimony as this.

He

An evident refutation of White's statements in regard to the condition of his prison must be found in this that Mr Barton personally visited the prisoner, on the 23rd of August 1861, as representative of Mr Jerningham, and on the following day wrote the letter before us in reference thereto to the Minister Melgar. says not a word about having found the prison unfit, but merely requests to be informed whether it was likely that the investigation would soon terminate, as the prisoner complained that he was suffering from an affection of the liver in consequence of his long detention. When therefore, on the following day, a better prison was assigned to White, it only shows how anxious the Government and authorities of Peru were to anticipate the wishes on behalf of the prisoner.

The description of White's sufferings which precedes the above-mentioned letter of Mr Barton, who is supposed to have witnessed them, is in evident contradiction with the contents of this document, and appears to be only based on the false statements of White.

The occasion of that visit of Mr Barton was the complaints made by White of the tortures that he had suffered in the "barra", in which he had been shut up for a long time. But it is proved by the documents that White, on his examination on the 20th of August, demanded the reading of various documents, which, as is admitted at page 23 of the statement of the British Government, were drawn up in an unbecoming tone, and contained abuse of the Government and of judicial persons.

But it is again a misrepresentation when it is said that the judge on this occasion was not satisfied whit refusing to receive these documents, but ordered White to be put in irons; for he received this punishment for having answered Judge Ponce by personal threats, w hen cautioned with regard to these documents.