that he recognises no right on the part of the Spanish authorities to try and punish the prisoners taken at Contoy, and that he will view their punishment by the authorities of Cuba as an outrage upon the rights of this country. Without enlarging upon the grounds taken in making the demand through the consul, of which you are fully informed, the Presi dent is satisfied, from the reports which he has received of the evidence taken before Judge Marvin at Key West, as well as from other information, which he deems entirely reliable, that the men taken at Contoy had embarked to go to Chagres, and, if any of them had ever designed to invade Cuba, they had repented of that design and abandoned it. Under these circumstances, the President cannot consent that the lives or liberties of citizens of the United States shall be forfeited, or that the question of the truth of the evidence above mentioned shall be referred to any foreign tribunal.

You will say to the Governor that your mission has been occasioned by intelligence that the demand heretofore made by the consul, Mr. Campbell, in regard to these prisoners, was refused on the ground, among others, that the consul had no diplomatic powers. In reply to the demand made by Mr. Campbell, we learn that he was referred to the Spanish minister in Washington, Don A. Calderon de la Barca, and to the Court of Madrid. The views of this government on the whole subject have been fully made known to the Spanish minister residing at Washington, of which he has doubtless fully advised the government at Madrid and the Captain General of Cuba. This government has no reason to suppose that a de. mand so just and reasonable would not now be acceded to by that minister, who is no less distinguished among us for his humanity than his justice, and who, while zealously, on all occasions, maintaining and defending the rights of Spain, has never shown himself insensible to the importance of preserving the amicable relations which have so long existed. between our respective countries. As to the reference made by the Governor and Captain General to the Court of Madrid, you will say to that distinguished functionary that, in the judgment of the President of the United States, were he to abandon these prisoners to the consequences of the confinement which they must undergo in prison in such a climate as that of Havana, at this season of the year, until a demand could be made upon the Court of Madrid, and an answer returned, it would amount to a probable sacrifice of the lives of many of them, and a desertion of the duty of this government to protect its own citizens.

The owners of the barque Georgiana and the brig Susan Loud have exhibited to this department statements to prove the innocence of the captains who chartered those vessels; and you will inform the Governor and Captain General of Cuba that this government expects those vessels to be returned to their owners, with damages for their capture and detention. Those statements confirm the testimony taken before Judge Marvin of the innocence of the prisoners of any intention to invade Cuba-which testimony has, we learn, been fully communicated to the Governor and Captain General.

Should the Captain General refuse to release the prisoners upon your demand, you will then inquire fully into the manner in which they have been treated, their present and past condition, whether any have died or are sick, and what attention has been paid to them, and what is that evidence upon which the Spanish authorities rely to establish their guilt.

For this purpose, you will demand admittance to all the prisoners, in the presence of the American consul; and upon your return, you will make a full report on all these subjects. You will also respectfully request of the Captain General all the testimony which he has obtained, to enable this government to prosecute any person or persons in the United States who have been engaged either in invading Cuba or in getting up an expedition for that purpose; and you will say to him that I am encouraged to make this request by Don A. Calderon de la Barca, who assures me that some such testimony is in possession of the Spanish authorities, and will be cheerfully tendered to this government, to enable it to maintain its treaty stipulations with Spain.

I am, sir, very respectfully, your obedient servant,

Commodore CHARLES MORRIS,

JOHN M. CLAYTON.

Sc., &'c., Sc.

Mr. Barringer to Mr. Clay'on.

[Extract.]

[No. 27.]

LEGATION OF THE UNITED STATES,

Madrid, August 7, 1850.

SIR: I have the honor to acknowledge the receipt of your despatch No. 20, of the 1st ultimo, which reached me on the 4th instant.

Immediately on its receipt I transmitted a note to the Minister of State desiring a verbal conference, which I deemed advisable under all the circumstances, before I proceeded to execute in a more formal manner a part of the instructions it contained.

This interview took place, according to the appointment of the minister, on the 5th instant at his office. After a few general observations on the lamented death of General Taylor and the installation of his successor, I stated that the first object of my visit was to know of his excellency the state and condition of the American prisoners taken at the island of Contoy, on the coast of Yucatan, within the jurisdiction of Mexico, and supposed now to be undergoing judicial trial by the Spanish authorities in the Havana. I desired to know the nature of the proceedings against them; whether any had been executed or punished in any way; whether the government of her Majesty, at Madrid, was officially informed of the demand made of the Captain General of Cuba by the government of the United States for their release, and if any orders had been issued from the Spanish government here for their discharge. I remarked that, from the official information I had received, I inferred that her Majesty's gov ernment was in full possession of all the facts connected with the demand already made, and the grounds on which it was based; that the Spanish minister at Washington, I knew, had been fully and repeatedly informed by the government at Washington of their views and purposes, and for a time sufficiently past to have enabled him to communicate with his government; that he had promised to transmit such information without delay to the government of her Majesty, and had since assured the American Secretary of State of the execution of this promise. The Min

ister of State then said that he had not as yet received full communication from Sr. Calderon de la Barca on this subject. He had, however, received his reply to a note of Mr. Clayton on the subject of the demand referred to, but had not seen or been otherwise advised of the note to which this reply was an answer. He was, therefore, not fully aware upon what principles the demand for the release of the Contoy prisoners was grounded, or what were the reasons urged by the United States gov

ernment.

He had an idea of their general character from the reply of Sr. Calderon de la Barca, but it was from a Spanish point of view. He had not seen the American side. As to the prisoners themselves, they were, at the latest advices from Cuba, still in confinement, and undergoing the sumaria or investigation of the first instance by the Tribunal of Marine. This was a sort of preliminary inquiry to ascertain who should ultimately be placed on trial for final sentence and punishment or acquit tal, and who should be discharged at the conclusion of this inquiry. This proceeding was ex parte, and, during its continuance, all communication of the prisoners with other persons than the officers of the court, &c., was interdicted. This was the general rule of proceeding in all Spanish tribunals, and applied to their own citizens as well as foreigners. None had as yet been punished, and his own impression was that this investigation would result in the discharge of most if not all those who had been captured at Contoy. He had seen copies of letters taken at the same time with the prisoners, which were mostly written by those who had made the attempt with Lopez, and addressed to their friends in the United States, complaining bitterly of the traitors and cowards who were left at Contoy, and from which it was pretty certain that a large portion of those captured, at least, had really never entered into the conspiracy to invade the island of Cuba under Lopez and his coadjutors, and had honestly believed that they were on their way to Chagres; or, if originally guilty, had repented of their design, and had abandoned the expedition. He said that the necessary intervention of interpreters and translators of documents had created unavoidable delay in the progress of the investigation, but her Majesty's government had given orders to finish with it quickly, and perhaps already most, if not all, the prisoners were discharged. He here produced the copy of a recent letter from the Count of Alcoy to Señor Calderon de la Barca, in which he said that, according to the assurances he (Alcoy) had just received from the judge having the investigations in charge, the prisoners of the expedition would probably all be discharged by the court within some three or four days from that time, and that thus the question would be reduced to the vessels and their crews; but, said the minister, they would be discharged by the decision. of the court, and not in consequence of the demand of the United States government. Even if they had been proved to have been still in the intention of committing the piracy of the Cuban expedition, Spanish law would not find them guilty or punish them in the same degree as those who had actually consummated the attempt. Yet intention to commit a crime was in itself criminal and punishable under the law of all civilized nations. The prima facie case, the presumption of guilt, was against these men. They had gone out of the port of New Orleans in vessels which notoriously accompanied the steamer Creole, whose criminal voyage was beyond all doubt. The object of all these vessels was notorious

and identical-they had landed a portion of their men on this island of Contoy, whilst their companions proceeded on their wicked voyage of invavasion of the territory of Spain. Those that had actually made the attempt had mostly escaped, whilst those who had thus landed had been captured by the Spanish cruisers and taken into Havana, where the degree of their participation in the guilt of Lopez and his followers was being investigated before the competent tribunal. That in this particular case, it would probably result that these prisoners were mostly, if not all, innocent of the intention to invade Cuba. But the right of Spain, under the circumstances, thus to capture them, to take them into her own ports, and to try them before her own tribunals, was undoubted by the law of nations, and Spain insisted on that right.

I replied, that without going at this time into all the details of facts connected with the expedition, his excellency was in error as to some particulars just stated; that the expedition was not notorious; that the departure of the vessels was so secret as to escape the vigilance both of the Spanish consul, as well as the caution of the authorities of the United States government; that the Georgiana and Susan Loud were carrying passengers who believed bona fide that they were going to Chagres; that the vessels did not accompany each other, nor was there any proof that they ever had the same original destination; that even if the prisoners taken at Contoy were primarily engaged in the enterprise of Lopez and his comrades, they had abandoned that intention and were about to return to the United States; that the government of the United States were in possession of evidence tending to establish this conclusion; that the principle that an intent to commit a crime is not the crime itself, was too palpable to need comment. There must be some overt act, even when such criminal intention existed. There was always a locus penitentia; and, in this particular case, if the prisoners were guilty of any offence on the ground of intention, it was certainly not against the laws of Spain, but of the United States, and cognizable alone in their tribunals, which claimed the sole jurisdiction to decide on the competency of the evidence which might be offered to affect their guilt or innocence. But apart from all these considerations, the government of the United States believed that the American occupants of the island of Contoy, near the coast of Yucatan, belonging and subject to the jurisdiction and sovereignty of Mexico, a power on terms of friendship and amity with the United States, and beyond the territory and jurisdiction of Spain, and who were there made prisoners by her direction and command, were not guilty of any offence, under the law of nations, against Spain; and that their seizure on the territory of a third and friendly power was illegal and in derogation of the rights of the United States: much less did Spain have any right to detain and prosecute American citizens thus captured in her own tribunals, according to her own course of judicial procedure in criminal cases. The United States could not recognise such a right or pretension, and protested in the most firm and solemn manner against all proceedings and consequences which had or might follow from such unlawful capture, and the investigations had by virtue of it in the Spanish courts. I was instructed by the Prcsident to demand of her Majesty's government, at Madrid, the immediate release of the American citizens thus taken and now in confinement under Spanish authority; and that, as I had every reason to believe that her

Majesty's government had been fully apprized of the nature and character of this demand, I was also instructed to insist on a prompt reply.

The minister, assuming a tone and manner more solemn and earnest, said this was a very serious and grave question, involving the highest and most important consequences; that he could not admit the principle for which I contended in this demand on behalf of my government; that Contoy was a desert island, uninhabited and abandoned; there were no authorities, no jurisdiction there, so that Spain could call upon Mexico to say why she had not disarmed those men, or why she had harbored the armed enemies of Spain. It was, to all intents and purposes connected with this subject, the same as the open sea, ("alta mar,") and all nations had the right to seize their enemies on the high seas. He argued at some length, and with much animation, to show the justice and right of Spain, in such a case as this, to capture the enemies of her peace and the invaders of her soil; said that the pretension of the United States in this demand was to deprive Spain of her right to combat invaders of her terri tory, except upon that territory itself, yielding only the right of combatting pirates or armed enemies when they had already arrived upon her soil; it denied to her the right to pursue their ships, to beat up their rendezvous, to capture or destroy them in their stronghold whence they proceeded, and where they guarded their reinforcements or reserve. The United States said, in fact, that if, instead of three, fifty vessels (as you say this expedition might [have] been, but for the action of your government) should go out of your ports to morrow filled with armed enemies of Spain, and rendezvous at the desert spot of Contoy, and twenty of the fifty should actually make a descent upon the coast of Cuba, Spain might combat the twenty after they had arrived, but she could not send her cruisers to molest the thirty, not yet quite ready to follow-to combat, to capture, if possible, and conduct them into her ports for trial before her own tribunals. Such a pretension could not be admitted by Spain for a moment. The principle insisted on would make such an island as Contoy a rendezvous, a point d'appui, for the enemies of Spain, without the power on her part to dislodge them. Spain could not make reclamation or claim indemnity from Mexico for the violation of her supposed territory, which was nothing but a desert, and a capture on it was equivalent to a capture on the high seas.

The right to seize, imprison, judge, and punish those found guilty in such cases was indispensable for the defence and safety of nations. To surrender this right would be to disarm Spain of the necessary means to insure the protection of her colonial possessions. She could never surrender this right, or yield to such a demand. It was impossible for her to do so. It was a most grave and momentous question, affecting in the highest degree the peaceful relations of the two countries, demanding the most solemn consideration, and the most imposing and formal manner of presentation. No Spanish minister could receive such a demand lightly; but when it should be formally presented in writing, the government of her Majesty would answer most solemnly.

I rejoined that I was fully aware of the grave consequences of such a demand if resisted; that it had been well considered by my government, which had made the reclamation in Cuba, and now instructed me to renew it here; that it should be made, as desired by him, in the most formal manner, in writing; which I trusted, however, would not lead to unneces