government, undertake expeditions which have for object to invade a foreign territory, robbing, burning, and pouring out in it innocent blood. It is proved that all those who were embarked aboard the vessels Creole, Georgiana, and Susan Loud, formed one sole expedition, and that this was directed on Cuba with such reprobated ends: in consequence, they ought all to be considered as pirates up to the moment when the sentence of the Tribunal of Marine should absolve some among them, as it did with forty-two of the individuals arrested at Contoy, who, as it seems, had been brought away thus far deceived, and who refused to follow further when they knew the culpable object of the expedition.

Pirates, also, the President of the United States undoubtedly considered those who should undertake like expeditions at the publishing of his proclamation of the 11th of August of last year; because, only by considering them pirates could he declare that none of them ought to count upon the intervention of the government of the United States, however great might be the extremity to which they might find themselves reduced in consequence of their criminal undertakings; which, in fewer words, means that the chief of the state put without the law and the national protection whomsoever of the citizens of the United States should form a part of the expedition. So his chiefs and officers must have understood it; so Spain ought to understand it; and never could I have believed that, after a declaration so solemn, it would be sought at any time to protect those who plotted the expedition and formed a part of it-those who took in their vessels from the ports of the Union the arms and the men who disembarked at Cardenas, because only they were not arrested there, but at a desert island, for the sole reason that, after the concert and arrangements which intervened between the invaders, they formed the rear-guard and not the van. guard of the expedition.

Your excellency says that the government of the United States cannot recognise that Spain has the right to capture American vessels anchored on the coast and within the jurisdiction and the territory of a power which is in friendly relations with the United States, or to detain and arrest the men and the crews which were aboard those vessels, and to judge them before Spanish tribunals and according to the rules and judicial forms of Spain. Your excellency will permit me to observe, that this mode of presenting the question, in terms so general and with an absolute abstraction from the facts which determine its nature and character, cannot have application to the present case and to its particular circumstances, and that, if we should adopt it, it would lead us necessarily to mistaken and erroneous inductions.

When the Commandant General of the station of the Havana attacked and captured the vessels and the men which were found at the desert island of Contoy, I could not regard the said vessels as Anglo-American, nor those who manned them as citizens of the United States, because, having undertaken an expedition of piracy, declared such by the law of nations, and by the government of the confederacy itself, and having put themselves, on their own account, in war with Spain, they had lost by that sole act their nationality and the right to be regarded and protected as citizens of the Union.

This is a circumstance very essential and decisive, which cannot absolutely be laid aside, in treating of the appreciation of the facts in question

and the rights of the invaded power; because, if we should waive this, it might be pretended with equal reason that the Spanish vessels of war would not have had a right to capture the Creole and the men whom she carried, either before her arrival at Cardenas or after her departure from that port, because they might just as well allege in their favor, as is now alleged in favor of those of Contoy, the nationality of the United States; but the truth is, that both these and the others had lost their nationality for all the purposes in question, from the time that, on their own account and under their own responsibility, they set out by sea to invade, as pirates, a foreign territory in peace with the United States.

I have been surprised that your excellency applies to this crime the epithet of supposed vulation of the law of nations. The violation could not be more notorious and unquestionable.

Once that there has occurred an armament and war on private account against a friendly nation, excitation to insurrection, robbery, massacre, and burning, and once that it is proved that the men who went on board the Creole, Georgiana, and Susan Loud, were either authors or accomplices of these crimes, the government of the United States, as well as all civilized governments, cannot fail to recognise necessarily a positive violation of the law of nations, in the perpetration of like offences.

Your excellency also says that the question whether the prisoners of Contoy are innocent or guilty of the invasion does not at all affect the principles in which your demand is founded, since, if they are guilty, to the Union belongs their punishment, whose laws are conclusive against this sort of criminals. I am agreed that to the republic pertains the punishment of those who set on foot such expeditions, whilst they prepare them in its territory, and of those who return to it after having undertaken them; and it would have been in truth desirable that the adventurers who last year undertook the expedition of Round Island had suf fered in their country the punishment which they merited, as well as those who recently have carried into effect the invasion prepared publicly and denounced beforehand by the minister of her Majesty at Washington, since a severe example would have shunned the complications which unfortunately have since supervened.

But I do not comprehend how the government of the Union, acting on the principles which your excellency sets up, can employ that measure of repression (so opportune whilst the conspirators continue within the territory of the United States) as soon as they, starting by sea, placed themselves beyond its jurisdiction and in the territory of another power.

From that moment the pursuit and punishment of those who can no longer be considered but as pirates, pertains very especially to the nation against whom they direct themselves; and, in taking and subjecting to her tribunals the prisoners of Contoy, Spain does not infringe, nor have any intention to infringe, in the slightest degree, the rights of the United States, but uses in her own defence those which belong to her conformably to the law of nations.

Your excellency says that many of those who were taken at Contoy are innocent of the offence which occasioned their imprisonment.

Granting that this is so, nevertheless it cannot be denied that they formed part of a criminal expedition which committed at Cardenas the crimes that I have already mentioned; that, consequently, the Spanish

forces, to whom it was not possible to qualify them individually, ought to have seen in them a fellowship of guilt, and under that conception proceeded legitimately to their detention and arrest.

When afterwards it has been seen that many of them were in fact innocent, they have been put at liberty. What more can be exacted of the good faith of Spain, or of the right procedure of her authorities?

The government of her Majesty does not doubt that the individuals who have been put at liberty embarked with the intention of going to Chagres; but it is enough to sustain its right, that the real, effective, and true destination of these vessels was not Chagres, but Cuba; and this, which is proved by the combination and intelligence between the Georgiana and Susan Loud and the Creole, upon the high sea and at Contoy, was also recognised by the government of the United States, in the fact of their having sent vessels-of-war to the coasts of Cuba for the purpose of frustrating the object of the expedition.

The right of Spain being shown to attack, to capture, and to judge the vessels and the men who directed themselves ostensibly to invade her territory, I repeat to your excellency that the government of her Majesty might still be able to waive, up to a certain point, the exercise of this right in the present case, through consideration and deference for that of the United States, if it were a question of an isolated act and without ulterior effect; but it cannot make a concession, which, besides depriving it for the future of the means most efficacious for defending its territory against the invasions of pirates, would come to establish in fact a principle which, as the government of her Majesty understands it, and apprehends that all other governments to whom this question should be submitted would understand it, is contrary to the best recognised provisions of international law.

The government of her Majesty desires nothing so much as to preserve the good relations which unite it with that of the United States; but perceiving that the latter looks upon certain facts and questions from a mistaken point of view, it cannot for this reason fail to sustain with calmness, and with the language of reason and of justice, the rights which pertain to it in a question of so great importance.

The government of her Majesty, in replying to the demand of your excellency, trusts that that of the United States will recognise the force of the reasons which I have stated, and that it will desist from a pretension in which, as I think I have shown, the dictates of reason and justice are not on its side.

I improve this occasion to renew to your excellency the assurances of my most distinguished consideration, &c., &c., &c.

PEDRO J. PIDAL

To the MINISTER PLENIPOTENTIARY

of the United States.

LEGATION OF THE UNITED STATES IN SPAIN,

Madrid, September 19, 1850.

SIR: I had the honor to receive, on the 16th instant, your communication of the preceding date, in answer to the written demand made by me,

on behalf of the government of the United States, for the release of the American prisoners taken at the island of Contoy, and afterwards confined in Havana for trial, by the courts of Spain.

Whilst I am gratified to learn, for the first time in an official manner, that the larger portion of these prisoners have already been discharged from their imprisonment, with a recorded judgment of their innocence of the crimes alleged against them, I most deeply regret that her Majesty's government insist upon the right which they have exercised, to seize and try them under the circumstances of this case; and that they have resolved to retain the others, and to try, and punish them if found guilty, and deemed deserving of the infliction, by the Spanish tribunals.

From the length of time which elapsed from the date of my written. demand till the receipt of your reply. I began to entertain the hope that your excellency would be able to inform me of the final discharge of all the prisoners.

It is a source of great, if not equal regret, that there should be a difference of opinion as to the grounds of the defence of that right claimed by her Majesty's government; and that there should be either a misconcep tion of the facts in this case, or mistaken inferences from them, on the part either of your excellency or myself. Having heretofore, both in verbal conference and written correspondence, endeavored to explain, as fully as possible, the reasons and principles of the demand made by order of my government, I might, under ordinary circumstances, be content with the simple submission of the answer of her Majesty's government to that of the United States, for their further consideration and action.

But in justice to my government and myself, I cannot forego the duty of replying briefly to some of the principal observations contained in the communication of your excellency.

Before I proceed, however, to this duty, I must be allowed to say that your excellency is wholly mistaken in supposing that this demand was ever intended to be withdrawn on my part, upon the release of the larger portion of the prisoners, in the ordinary course of judicial trial in the court at Havana.

On the contrary, both in the conference of the 5th ultimo and in my communication of the 27th of the same month, the demand was for the discharge of all the prisoners taken at Contoy. There was no discrimination between the officers and crews of the vessels and the other prisoners. There could be none. I was not instructed to make any. In the conference, I did understand your excellency to say that from the latest information in possession of her Majesty's government from Havana, it was probable that most, if not all of the prisoners taken at Contoy, would be released in a very short time. And I then expressed the hope and belief, that if they were so discharged, however much my government might object to the mode of their liberation, in my opinion it would not contend about forms; and that all difficulty arising out of this question could be easily adjusted by the two governments, as nothing would be left for discussion, in that event, but an abstraction about the right of Spain to seize and try these men.

But I did not say then, or at any other time, that the demand would not be insisted on whilst any portion of them remained in custody.

There could, indeed, be no merely abstract principle, but a most practi

cal right left for discussion, whilst there was one American thus taken and kept in confinement, and subject to foreign jurisdiction.

The length of time from that conference till the demand in writing was caused by considerations, supposed to be known to your excellency, wholly different from a supposition that this demand would be abandoned, and entirely consistent with its prosecution.

At that time I did not know that any portion of the prisoners had been released; but was simply informed by your excellency that, in your opinion, they would be in a few days. I did not know indeed, except from sources on which I could not act, that the forty two prisoners, to whom your excellency refers, had been discharged, until officially informed by your excellency's note of the 15th instant.

But if I had known this fact before my communication of the 27th ult., it could not have changed my course so long as any American citizen, captured under the circumstances therein detailed, remained in prison and liable to foreign trial and punishment.

The argument of your excellency, in defence of the resolution of her Majesty's government, is founded on two cardinals errors repeatedly asserted or insisted on in your communication: 1st. That the Contoy pris oners are "pirates" according to the law of nations; 2d. That the island of Contoy is "desert," and not subject to any local jurisdiction, so far as the purposes of this question are concerned.

It is only as pirates, under the law of nations, that Spain does or can pretend to the right to capture and try these men in her courts.

Your excellency is too able a jurist and too experienced a diplomatist not to value the importance of correct definitions, and not to know the well founded distinctions between different crimes, and the necessity of observing such distinctions in documents of so grave a character as those that refer to the principles of international right. Indifference to these just and proper distinctions cannot advance the interests of friendly discussion on matters of such high concern.

To confound the proper and legal distinctions between crimes even of the same moral guilt, and to allow foreign jurisdiction to be exercised for one offence under pretence that it was another, would be to destroy all international law and security. Hence the effort of your excellency to demonstrate that the prisoners, whose release is demanded, have been guilty of the crime of piracy, becomes of a true and great importance.

Piracy, under the law of nations, has a fixed and determinate meaning, and is, in the language of the law, defined with "reasonable certainty. Many acts may even partake to some extent, in moral guilt, of a piratical character, which are nevertheless no piracy.

To plan, fit out, and send forth from the United States a military expe dition against a colony of Spain-although a most penal and flagitious crime under the laws of the United States, subjecting the offenders to severe punishment if arrested within their jurisdiction, (which extends to the vessels of all their citizens,) and to all the consequences of the violation of Spanish law if taken within the dominions or jurisdiction of her Majesty surely is not piracy under the law of nations.

It is not a "robbery on the high seas." If, indeed, the moral criminality of such an offence were the same, it would not be piracy.

But your excellency is pleased to observe that the offence of Lopez and his confederates is piracy by the laws of the United States.