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In this your excellency is mistaken. But even if it were so, and the definition of piracy was so enlarged by the legislation of the United States as to embrace-as in fact it has done-many crimes not piratical by the law of nations, surely it cannot be pretended that this would give Spain jurisdiction of the offence, made so by the laws of the Union.

The government of the Union prefers to administer and execute its own laws, through its own judicial tribunals and officers.

Much less can that government recognise the claim of such jurisdiction by a foreign power, when that claim is founded in a violation of neutral territory.

But even if Lopez and his confederates, both Spanish and American, who landed at Cardenas and committed the atrocities which have drawn forth so much eloquent denunciation, and whose highly criminal proceedings are regarded with the strongest condemnation by the government of the United States, are to be considered as pirates and guilty of the rebellion, murder, arson, and robbery described by your excellency, still it does not follow that the prisoners taken at Contoy, many leagues from Cuba, are to be treated as pirates also, and as guilty of the same offences. Did the latter, indeed, originally compose a part of the same expedition, set on foot with the intention to invade the island of Cuba, they could repent of their design, abandon that intention, and refuse to accompany their leaders in the execution of their original purposes, as in fact it already appears that most of them did-they were never near the island of Cuba. But to show how a resolute zeal (which I would rather commend than depreciate) to defend at all hazards the island of Cuba against any attempted invasion might and did mislead the patriotic officers of her Majesty's navy, I will suppose, for the sake of argument only, that all originally engaged in this criminal expedition were pirates by the law of nations; even then the arrest at Contoy, and the claim of jurisdiction founded upon it, are not authorized by international law. If they were, in fact, pirates, they could only be followed and seized in the territory of another power on "fresh pursuit."

Any other construction would soon endanger the peace of nations.

This doctrine is well settled, and has always been acted upon by civilized nations.

Your excellency must be too familiar with Spanish colonial history to have forgotten the period when this same island of Cuba, and its numerous small and many of them desert appendages, was the focus of thousands of real pirates, who swarmed on the coasts, and whose horrid avocation was to depredate on the high seas, and to commit every excess and the most cruel atrocities on their unoffending victims. History has recorded, too, that, with some honorable exceptions, the then local authorities and people of Cuba themselves encouraged and protected these monsters in human shape, and participated in their ill gotten and nefarious gains; and that, after repeatedly remonstrating in vain with the mother country, who pleaded her inability to put an end to the excesses of these human fiends whom success had emboldened to open defiance, the gov ernment of the United States was compelled to fit out and station in the Gulf of Mexico an efficient naval force for the protection of the lives and commerce of their citizens, and the final suppression of this most reckless and organized system of piracy. Yet, notwithstanding the inability of Spain to exterminate these pirates, and the powerful motive thus furnished

to execute their object even to the last extrenity of right, the officers of the American squadron never trespassed on the rights of Spain by violating the territory of her chief islands, or even their "desert" and uninhabited appendages; and never even entered upon their soil except in "fresh pursuit" of the pirates, and that perhaps only in a single instance. Your excellency is pleased also to say that the late President of the United States regarded those who should undertake like expeditions as pirates, because, in his proclamation of the 11th August, 1849, he declared them without the protection of the government; and express your incredulity that, after so solemn a declaration, it would have been sought at any time to protect those who plotted the expedition and formed a part of it, &c., &c.

This interpretation of that proclamation is not warranted by the document itself; and the intimation of your excellency that the government of the United States in making this demand are seeking to "protect" those who plotted this expedition against a friendly power is without foundation, and is most unjust to that government as well as to the memory of the distinguished patriot who issued that proclamation, and also di⚫ rected this demand to be made.

I submit to your excellency, and our respective governments, to consider whether it would not have been more proper to have expressed a due sense of gratitude for the eminent and efficient services rendered by that illustrious Chief Magistrate and the government of the Union in preventing similar enterprises against the island of Cuba, and performing with fidelity every obligation of international duty and friendship towards Spain.

That much praised document does not denounce the men engaged in such an expedition as "pirates," nor does it exclude the idea of intervention on the part of the government in any case of unlawful capture by Spain or any other power. Any such construction of that instrument would have justified Spain in seizing the passengers of the Creole on the soil of the United States with impunity, and without violation of our territory.

The construction of your excellency would be equivalent to a declaration on the part of the United States that Spain might seize and try them anywhere and under all circumstances, however violative of our rights, without the possibility of interference. The action of my government throughout has been entirely in conformity with the principles of that proclamation.

It is not sufficient to answer that self-defence requires the invasion sometimes of the territory and jurisdiction of another nation to seize and punish the enemies of our national peace.

Self-defence does not justify such a violation in this case. And even if, under such extraordinary circumstances, such an invasion and seizure might be authorized, it does not follow that prisoners thus taken can be tried and punished by another jurisdiction, after and against the demand for their surrender to the authorities of their own government.

This argument of self-defence, if it be judged of alone by any one nation in her own favor, might be too comprehensive in its claims and prove too much; it might perhaps justify Spain to pass the Balize below New Or leans in pursuit of those she might choose to denominate pirates under the law of nations, or it might have authorized the officers of the Pizzaro

to have pursued the Creole into Key West; which, however, they wisely declined to do, even in "fresh pursuit" of Lopez and his retreating forces. Self defence must act consistently with the law of nations-it must not violate the rights of others; and if, under all circumstances, the right of self defence as I admit-pertains to every independent nation, others have also the right to judge whether in the exercise of this right their own interests and prerogatives have not been violated.

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The argument of your excellency, that at the time of the capture of the vessels Georgiana" and "Susan Loud," and the men found at the island of Contoy, they were denationalized, by having undertaken and being engaged in an expedition of piracy, fails, of course, if your excellency is mistaken-as I have endeavored to show-in your definition of that offence according to the law of nations. The vessels, wherever found, belonging to the citizens of the United States, were subject, as well as their citizens on board, to the jurisdiction of their own government, and liable to be captured at sea by its order, and would not have been secured against such capture, as argued by your excellency, by the principles of this demand.

Your excellency says that Mexico, to whom belongs the island of Contoy, has made no demand from Spain. This may be the good fortune of Spain, as between herself and Mexico, but it surely does not affect the questions of seizure and jurisdiction as between Spain and the United States. Supposing, for the sake of argument, that the right of seizure existed, it was incumbent on the authorities of Spain, before the exercise of jurisdiction on their part, at least to ascertain whether Mexico had or had not disclaimed jurisdiction: and then, whether they could exercise such a right as against the United States upon the citizens of the latter. But it is answered to all this, that there was no necessity for such a course, because Contoy is a "desert" island, where Mexico-to whom under other circumstances your excellency admits belongs the duty of breaking up the strongholds of the "pirates" and repelling them from her dominions-could not have and maintain a force to repulse and expel them. And this brings me to what I regard as the second leading error in the propositions of your excellency, both of which must be relied upon to sustain and establish your deductions.

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If your excellency means by "desert" (which term is repeatedly and always used in this connexion by your excellency,) that the island of Contoy is uninhabited, or uncultivated, or that there is no actual and present jurisdiction on its soil, I cannot, for want of information, either admit or deny. But if it is meant that this island, which is immediately on the coast of Yucatan, a State of Mexico, is abandoned, or open to the first occupant, or, in the language of the law, that it is "no man's land,' which is the only construction that can give force and effect to the argument of your excellency, then the statement, and all the inferences from it, are denied. We do know that this island, and its shores, is the domain of Mexico; it is a natural appendage of her adjacent territory on the main land, to which it is so contiguous. It is iminaterial whether she makes actual use of it or not; it may be her interest to preserve it, and no one has a right to violate it as against her consent, or require her to account for the manner in which she uses her property. It is immaterial whether it be large and firm enough to be inhabited or fortified, or whether it is actually the one and the other.

It is part of her domain and sovereignty, and of course within her sole jurisdiction-territory always implies jurisdiction. Her proprietary right and territorial jurisdiction are, therefore, necessarily absolute, and exclude those of every other nation. By any act there committed, or entry on the soil, a foreign nation cannot acquire jurisdiction over her citizens except by the previous consent of Mexico; much less over those of a third power, which cannot, in any case, be transferred to another, even by such act and consent.

Your excellency is pleased to express surprise at my application of the terms "supposed violation of international law" to transactions so notorious and criminal as those connected with the late expedition of Lopez against Cuba. By recurring to the terms of the demand, which was limited to the release and embraced the case of the Contoy prisoners only, and not those taken at Cardenas, your excellency will perceive that this language was applied only to the allegations made against the former. Besides, I have considered, according to my ideas of civil liberty and jurisprudence, that the presumption of innocence always exists till guilt is proved, and that when even the highest criminals are on trial, it is unjust to the fair administration of law, as well as to them, to pronounce the sentence of guilt before its truth is established. The very decision of the tribunal at Havana, itself in favor of the innocence of a majority of these prisoners, has shown the justice and propriety of characterizing their case as a "supposed violation" of law.

As to the expression of a desire on the part of your excellency that those engaged in a former attempt against the island of Cuba, as well as those concerned in the more recent expedition, should have received their merited punishment at the hands of the government of the United States, I cannot do less than say that my government, relying on its own rectitude as the best security for the approbation of others, has heretofore pursued, and will continue to pursue, that course which is dictated by a wise appreciation of what all the circumstances by which they are surrounded may require, and of which they are to be the sole judges. And I cannot omit to add, that whatever they have done or may do in the premises has been, and will be, with the most scrupulous regard to every duty required by good faith to Spain, and exacted by considerations of justice to others as well as respect to themselves.

I reciprocate most fully and sincerely the wishes expressed by your excellency for the preservation of the good relations which unite our respective governments, and ardently hope that nothing connected with this or any other question may ever disturb this amity and friendship.

My government will appreciate most fully and gratefully the disposition expressed on the part of her Majesty's government to waive any supposed right to a limited extent from sentiments of a comity and respect for the United States.

It would be a source of unfeigned regret, if I could suppose for a moment that this disposition would, in the smallest degree, be defeated by a declaration of the principles on which this demand is founded. Nothing could be further from my wish or purpose. Having been expressly desired by your excellency to make this demand in writing, in order that its terms and principles might be fixed and made known with certainty, and that your excellency night answer in the same manner, I could not do less than set forth the reasons which have influenced my government in taking this step-reasons which are believed to be founded in a just in

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terpretation of the law of nations, the strictest regard for the rights of others, and which will be sanctioned by the calm judgment of mankind. It will afford me the most unalloyed satisfaction to learn that there is anything in the answer of her Majesty's government to the demand of that of the United States, which shall enable them to effect a speedy and amicable adjustment of this question.

I take this opportunity, &c., &c., &c.

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I have the honor to acknowledge the receipt of your despatch No. 25, of the 5th ultimo, containing, among other enclosures, copies of a correspondence between yourself and Senor Don A. Calderon de la Barca, the Spanish Minister Plenipotentiary at Washington, on the subject of supposed new schemes of aggression against the island of Cuba.

I will avail myself of the earliest opportunity to repeat to the government of Spain the friendly assurances of the government of the United States, and the fixed determination of the executive to cause a rigid enforcement of the existing laws.

By reference to my previous correspondence with the department of State, and with the Spanish government, especially to my despatches Nos. 19 and 27, and my communications to the Spanish Minister of State of the 27th August and 19th September ultimo, you will perceive that I have omitted no proper occasion to inform her Majesty's government of the firm resolution of that of the United States to do its whole duty to Spain, under every obligation of neutrality, friendship, or existing laws and treaties, claiming, at the same time, a similar manifestation of friendly spirit and action from the government of her Majesty towards that of the United States.

Notwithstanding these repeated and emphatic declarations of friendship on the part of the United States, and their efforts to calm the natural anxiety of Spain on this subject, it may well be doubted (whatever may be the professed convictions of the government itself) whether there exists in the public mind here that degree of confidence in our conduct to which it is so justly entitled.

I enclose you the copy of an additional note from her Majesty's Minister of State, on the subject of the demand for the release of the Contoy prisoners.

I have the honor to be, with the highest respect, sir, your obedient servant,

DANIEL WEBSTER, Esq.,
Secretary of State.

D. M. BARRINGER.

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