"by *+*<$ v»o T £» A V ♦((OVBgA* ^o 6 V *o. ♦*t£T* A . ^. *•-•' ^r o^ *#,i« aO *^ ♦•To .** o, *TT %/ * 4 ,0 lV«» A v & • •< V* 1 "> .-^r V* V ^ V*V .».. V o* 6 .-. Digitized by the Internet Archive in 2011 with funding from The Library of Congress http://www.archive.org/details/caseofblackwarri01unit CASE THE BLACK WARRIOR, AKD OTHER VIOLATIONS OF THE RIGHTS OF AMERICAN CITIZENS SPANISH AUTHORITIES WASHINGTON: BEVERLEY TUCKER, SENATE PRINTER. 1854. d'7£ IN SENATE OF THE UNITED STATES. MONDAY, JUNE 36, 1854. Resolved? That two thousand copies of House Document No. 86, relating to the seizure of the steamer Black Warrior, and other cases of alleged wrongs to American citizens, by the authorities of Cuba, be printed for the use of the Senate. Attest? ASBURY DICKINS, Secretary. J* MESSAGE FROM THE PRESIDENT OF THE UNITED STATES, TRANSMITTING A report in regard to Spanish violations of the rights of American citizens, Sfc. To the House of Representatives of the United States: I transmit herewith to the House of Representatives a report of the Secretary of State, with accompanying documents, in further compli- ance with their resolution of the 10th March, 1854. FRANKLIN PIERCE. Washington, April 5, 1854. Department of State, Washington, April 4, 1854. The Secretary of State, to whom was referred the resolution of the House of Representatives of the 10th ultimo, requesting the President, *' if not inconsistent with the public interest, to communicate to this House any information he may have received relative to the detention of the steamer Black Warrior, the seizure of her cargo, or the imprison- ment of her officers ; also any information in reference to any other violation of our rights by the Spanish authorities," has now the honor, in addition to the papers communicated on the 15th ultimo, relative to the case of the Black Warrior, to lay before the President a copy of the documents specified in the accompanying list, in respect to other complaints against the Spanish authorities, which, with the documents previously communicated to Congress, also referred to in the said list, are believed to embrace all important papers connected with the cases. Papers in reference to other cases of like complaint are in the course of preparation, and will be laid before the President as soon as they are completed. Respectfully submitted : W. L. MARCY. To the President of the United States. CASE OF THE BLACK WARRIOR, ETC LIST OP DOCUMENTS ACCOMPANYING THE REPORT OP THE SECRETARY OP STATE TO THE PRESI- DENT, OP THE 4TH OF APRIL, 1854. Case of the Crescent City. Mr. Morland to Mr. Webster, enclosures, September 23, 1852. Mr. Roberts to the Secretary of State, October 6, 1852. Mr. Moreland to the same, enclosures, October 7, 1852. Mr. Conrad to Mr. Roberts, October 8, 1852. Same to Mr. Sharkey, October 11, 1852. Mr. Sharkey to Mr. Conrad, extract, October 11, 1852. Mr. Morland to Mr. Webster, enclosures, October 18, 1852. Same to the Secretary of State, October 20, 1852. Mr. Roberts to the Acting Secretary of State, enclosure, October 21, 1852. Mr. Law to the same, October 23, 1852. Mr. Conrad to Mr. Law, October 25, 1852. Mr. Law to Mr. Conrad, October 27, 1852. Mr. Morland to same, extract, October 27, 1852. Mr. Conrad to Mr. Barringer, enclosure, October 28, 1852. Mr. Morland to Mr. Conrad, October 29, 1852. Mr. Conrad to Mr. Law, October 30, 1852. Mr. Calderon to Mr. Conrad, enclosure, November 5, 1852. Mr. Sharkey to the Secretary of State, extracts and enclosures, No- vember 8, 1852. Mr. Everett to Mr. Maxwell, November 33, 1852. Same to Mr. Calderon, November 15, 1852. Mr. Kennedy to Mr. Everett, enclosures, November 16, 1852. Mr Sharkey to Mr. Everett, enclosure, November 17, 1852. Mr. Calderon to same, November 17, 1852. Mr. Sharkey to the Secretary of State, November 17, 1852. Mr. Everett to Mr. Sharkey, November 30, 1852. Mr. Sharkey to Mr. Everett, extract, December 1, 1852. Mr. Everett to Mr. Barringer, enclosure, December 4, 1852. Mr. Calderon to Mr. Everett, December 10, 1852. Mr. Barringer to same, enclosures, December 14, 1852. Mr. Roberts to same, enclosure, December 14, 1852. Mr. Everett to Mr. Sharkey, December 30, 1852. Mr. Roberts to Mr. Everett, enclosure, January 4, 1852. Mr. Barringer to the Secretary of State, extract and enclosures, Jan- uary 5, 1853. Mr. Everett to Mr. Barringer, February 4, 1853. ,- Mr. Barringer to Mr. Marcy, April 7, 385/. fc> #>-?-/$". Cases of the steamer Ohio and Schooner Manchester. Mr. Marcy to Mr. Barringer, enclosures, April 19, 1853. Mr. Barringer to Mr. Marcy, extract, June 10, 1853. Same to same, extract and enclosures, July 8, 1853. Same to same, extract and enclosures, July 16, 1853. CASE OF THE BLACK WARRIOR, ETC 5 Same to same, extract and enclosures, August 18, 1853. Mr. Soule to same, extract and enclosures, March 8, 1854. JS-r/Qf Case of John S. Thrasher. Mr. Webster to Mr, Sharkey, extract, January 9, 1852. Mr. Barringer to Mr. Webster, extract and enclosures, January 14, 1852. Same to same, enclosure, January 15, 1852. Mr. Sharkey to same, extract and enclosure, February 9, 1852. Same to same, enclosure, February 13, 1852. Mr. Graham to same, February 21, 1852. Mr. Thrasher to same, March 22, 1852. Mr. Webster to Mr. Sharkey, July 5, 1852. Mr. Everett to Mr. Brooks, January 8, 1853. Mr. Hayes to the Secretary of State, enclosure, March 10, 1853. Mr. Marcy to Mr. Hayes, March L2, 1853. Same to Mr. Lawrence, April 12, 1853. Case of the steamer Falcon. Mr. Owen to Mr. Webster, enclosure, August 17, 1851. Mr. Derrick to Mr. Calderon, September 13, 1851. Mr. Calderon to Mr. Derrick, September 29, 1851. Case of the schooner Lamartine. Mr. Worrell to Mr. Marcy, enclosures, February 25, 1854. Same to same, enclosure, March 4, 1854. Same to same, enclosure, March 9, 1854. Case ofRey, alias Garcia,. Mr. Barringer to Mr. Clayton, extract, January 9, 1850. Case of Pedro Raices. Mr. Robertson to Mr. Marcy, extract, November 7, 1853. Same to same, December 1, 1853. Same to same, enclosures, January 11, 1854. Mr. Marcy to Mr. Robertson, February 9, 1854. Mr. Robertson to Mr. Marcy, extract, February 20, 1854. Same to same, extract, March 5, 1854- Mr. Marcy to Mr. Magallon, March 15, 1854. Mr. Magallon to Mr. Marcy, March 18, 1854. Mr. Robertson to Mr. Marcy, extract, March 21, 1854. Case of Charles Peter V. Esnard. Mr. Campbell to Mr. Clayton, enclosures, February 1, 1850. Case of John Salinero. Mr. Morland to Mr. Webster, enclosures, April 7, 1851. O CASE OF THE BLACK WARRIOR, ETC Case of Captain Larrabee — Delays in judicial proceedings in Cuba. (Re- port on tribunals annexed.) Mr. Trist to Mr. Forsyth, extracts and enclosures, Sept. 29, 1853. Mr. Robertson to Mr. Marcy, March 9, 1854. Case of the annulling of the Cuban Decree of October 7, 1844. Mr Buchanan to Mr. Irving, enclosures, May 9, 1845. Mr. Irving to Mr. Buchanan, extract, June 25, 1845. Same to same, extract, July 10, 1845. Mr. Barringer to Mr. Marcy, extract, August 11, 1853. Case of Michael D. Haraug. Mr. Gallaher to Mr. Forsyth, extract and enclosure, March 2, 1839. Mr. Forsyth to the Chevalier d'Argaiz, February 28, 1840. The Chevalier d'Argaiz to Mr. Forsyth, March 2, 1840. Mr. Forsyth to Mr. Gallaher, March 4, 1840. Mr. Gallaher to Mr. Forsyth, extract and enclosures, April 11, 1840. The Chevalier d'Argaiz to same, December 24, 1840. Mr. Vail to Mr. Webster, extract and enclosure, May 2, 1841. Same to same, extract, July 24, 1841. Mr. Webster to Mr. Vail, extract, September 1, 1841. Mr. Vail to Mr. Webster, November 2, 1841. Mr. Webster to Mr. Vail, extract, January 31, 1842. Mr. Webster to Mr. Irving, extract, July 30, 1842. Mr. Irving to Mr. Webster, enclosure, October 8, 1842. Same to same, extract and enclosure, November 5, 1842. Mr. Calhoun to Mr. Irving, April 30, 1844. Same to same, extract, May 29, 1844. Mr. Irving to Mr. Calhoun, extract, June 24, 1844. Same to same, extract, July 14, 1844. Same to Mr. Buchanan, extract and enclosures, August 23, 1845. Mr. Buchanan to Mr. Saunders, extract, December 6, 1847. Mr. Saunders to Mr. Buchanan, enclosure, February 8, 1848. Same to Mr. Clayton, extract, July 7, 1849. Same to same, extract and enclosures, September 25, 1849. Mr. Barringer to Mr. Webster, November 8, 1852. Same to the Secretary of State, enclosures, February 23, 1853. Same to same, extract and enclosure, March 8, 1853. Same to same, enclosures, March 26, 1853. Mr. Gallaher to Mr. Forsyth, November 23, 1838. Case of the seamen belonging to the barque Jasper. Mr. Robertson to Mr. Marcy, enclosures, July 6, 1853. Same to same, enclosure, July 11, 1853. Same to same, July 13, 1853. Commander J. F. Gerry, U. S. N., to Mr. Dobbin, July 15, 1853. Mr. Marcy to M T . O'Conor, enclosure, July 19, 1853. CASE OF THE BLACK WARRIOR, ETC. 7 Same to Mr. Robertson, July 20, 1853. Mr. Robertson to Mr. Marcy, enclosure, July 21, 1853, Same to same, enclosures, July 21, 1853. Mr. Cowperthwaite to same, July 21, 1853. Mr. Marcy to Mr. Dobbin, July 22, 1853. Mr. Dobbin to Mr. Marcy, July 25, 1853. Same to same, enclosure, July 28, 1853. Mr. Robertson to same, extract and enclosure, July 28, 1853. Mr. O' Conor to Mr. Marcy, July 29, 1853. Mr. Mann to Mr. O' Conor, August 2, 1853. Mr. Robertson to Mr. Marcy, extract and enclosure, August 3, 1853. Mr. Mann to Mr. Robertson, extract, August 3, 3853. Mr. Robertson to Mr. Marcy, extract, August 29, 1853. Same to same, enclosure, September 24, 1853. Same to same, extract, October 20, 1853. Same to same, enclosure, October 26, 1853. Same to same, extract, October 28, 1853. Mr. Cowperthwaite to same, November -3, 1853. Mr. Graff to same, November 5, 1853. Mr. Robertson to same, November 7, 1853. Mr. Marcy to Mr. Clayton, November 8, 1853. Same to Mr. Cowperthwaite, November 10, 1853. Mr. Robertson to Mr. Marcy, enclosures, November 14, 1853. Mr. Marcy to Mr. O'Conor, November 16, 1853. Mr. Clayton to Mr. Marcy, extract, December 5, 1853. Mr. Robertson to Mr. Marcy, enclosure, December 21, 1853. Mr. Robertson to same, enclosures, January 5, 1854. Same to same, enclosure, January 12, 1854. Mr. Robertson's certificate, January 16, 1854. Mr. Marcy to Mr. Robertson, extract, January 18, 1854. Mr. Robertson to Mr. Marcy, extract, January 21, 1854. Mr. Marcy to Mr. Florence, February 3, 1854. Mr. Robertson to Mr. Marcy, extract, February 7, 1854. ■Same to same, enclosure, February 14, 1854. Same to same, enclosure, February 20, 1854. Mr. Marcy to Mr. Cowperthwaite, February 27, 1854. Mr. Robertson to Mr. Marcy, February 27, 1854. Same to same, enclosures, February 28, 1854. Mr. Wheeler to Mr. Marcy, February 28, 1854. Mr. Robertson to Mr. Marcy, extract and enclosure, March 5, 1854. Mr. Marcy to Mr. Robertson, extract, March 7, 1854.^^^- £i>? Case of the Black Warrior. Mr. Robertson to Mr. Marcy, enclosure, March 14, 1854. Same to same, extract and enclosure, March 21, 1854. Mr. Sutherland to same, enclosures, March 28, 1854- Opening of the mails of the United States by the authorities of Cuba. Mr. Sharkey to Secretary of State, extract, November 8, 1852. 8 CASE OF THE BLACK WARRIOR, ETC Same to Mr. Everett, enclosure, February 21, 1853. Same to Secretary of State, extract and enclosure, March 12, 1853. Mr. Robertson to Mr. Marcy, August 29, 1853. Same to same, enclosure, August 29, 1853. Same to same, extract, September 13, 1853. Same to same, extract, October 14, 1853. a^/*-*?^ Mr. Marcy to Mr. Pierce, February 1, 1854. «^ Case of the Contoy prisoners. Mr. Campbell to Mr. Clayton, extract and enclosures, May 19, 1850. Same to same, extracts and enclosures, May 22, 1850. Same to same, enclosures, May 31, 1850. Same to same, May 31, 1850. Mr. Clayton to Mr. Campbell, May 31, 1850. Same to same, June 1, 1854. Mr. Campbell to Mr. Clayton, June 4, 1850. Same to same, June 8, 1850. Same to same, enclosure, June 19, 1850. Same to same, extracts, June 19, 1850. Same to same, extract, June 27, 1850. Mr. Clayton to Commodore Morris, June 29, 1850. Same to Mr. Campbell, June 29, 1850. Mr. Campbell to Mr. Clayton, extracts, July 3, 1850. Same to same, July 8, 1850. Same to same, enclosure, July 12, 1850. Same to same, July 16, 1850. Same to same, extract, July 19, 1850. Commodore Morris to same, enclosures, July 23, 1850. Note. For previous correspondence relating to the case of John S. Thrasher, see House Ex. Docs. Nos. 10 and 14, 32d Congress, 1st session. For previous correspondence in the case of Rey, alias Garcia, see Senate Ex. Doc. No. 13, 31st Congress, 1st session. For previous correspondence in the case of the Black Warrior, see House Ex. Doc. No. 76, 33d Congress, 1st session. For previous correspondence in the case of the Contoy prisoners, see Senate Ex. Doc. No. 41, 31st Congress, 2d session. For correspondence in reference to the seizure and imprisonment of Captain Thaddeus Beecher, and his officers and crew, of the schooner North Carolina, see House Ex. Doc. No. 29, 33d Congress, 1st ses- sion- For correspondence relating to the imprisonment of James H. Weston, see Senate Ex. Doc. No. 46, 33d Congress, 1st. session. CASE OF THE BLACK WARRIOR, ETC 9 CASE OF THE CRESCENT CITY. Mr. Morland to Mr. Webster. [No. 13.] Consulate of the United States, Havana, September 23, 1852. Sir : Since my last communication, (No. 12,) under date of the 25th ultimo, the only circumstance that has occurred which renders it proper to communicate to you, is the steps threatened to be taken by the Cap- tain General towards the mail steamships that come to this port, an- nounced to me only on the 21st instant, although he had issued his or- ders on the 4th, and the " Crescent City" had come in and departed in the interim. I enclose herewith a copy of the Captain General's communication, (containing the Political Secretary's letter to the consignees of that ship,) and my answer thereto, by which you will see that he is deter- mined to refuse entry to any ship with any person on board who may have written " calumnious" charges against his government. Such a proceeding may cause very serious injuries to the commerce of the United States connected with this place, and interrupt the course of the mail. 1 take this opportunity of stating that in the only two cases wherein I have deemed it my duty to appeal to the Captain General in behalf of American citizens who have been arrested and imprisoned for vio- lating the regulations of the port, &c, he has evinced a disposition to be just and conciliatory ; and finally both were released, and one fine was remitted. I have the honor to remain, with great respect, your obedient serv't, JNO. MORLAND, Acting Consul. Hon. Danl. Webster, Secretary of State. [l. s.] Political Secretary's Office, Section 1. Havana, September 21, 1852. The Secretary of this Superior Civil Government has, on the 4th instant, communicated, by my order, to the firm of Drake & Co., mer- chants of this city, what follows : " A person named William Smith, who seems to be an employe on the steamer 'Crescent City,' has published, on the arrival of said steamer, her last voyage, at New York, the grossest calumnies against the government of this island, taking advantage, to give a greater ap- pearance of truth to his impostures, of the frank hospitality extended to foreigners in Cuba. " This act, which the whole world will know how to judge and qualS- ify with its true colors, has very seriously called the attention of his excellency the Governor and Captain General, which superior authority, although he despises the ridiculous assertions made against his admin- istration, to occupy himself even for a single moment in refuting them, deems it a duty to let the author understand that her Majesty's gov- 10 CASE OF THE BLACK WARRIOR, ETC ernment will not permit that acts of that nature shall be reproduced with impunity. " In virtue whereof, proper orders have been issued, that immediately that the steamer ' Crescent City' arrive at this city, a police officer shall go on board for the express purpose of preventing said Smith from coming on shore. And by order of his excellency I state it to you ; adding, that if in future said individual should return in any of the steamers of the company, or any other person employed on them should take the liberty to abuse in a similar manner the privileges that the Spanish authorities offer him in the ports of the island, this sole act will be sufficient not to allow entry to the vessel conveying him, what- soever the losses may be that such a measure may accrue to the com- pany ; for although the company have it not in their power to prevent their subordinates from committing such excesses, their honor and inte- rest must oblige them to immediately withdraw their trust from any one that should attempt to compromit them foolishly." Which I transmit to your lordship for your information and proper effects, in case that it should be attempted to oppose the orders of this superior government, which I am firmly resolved to carry into effect. God preserve your lordship many years. VALENTIN CAREDO. To the Consul of the United States in this city. Consulate of the United States, Havana, September 22, 1852. Most Excellent Sir : I had the honor to receive your excellency's official communication of yesterday, containing a copy of a communi- cation from the secretary of the superior Civil Government addressed to the mercantile house of Drake & Co., by your excellency's order, on the 4th instant, on the subject of some gross calumnies on your excel- lency's conduct published in the United States by William Smith, an officer or employe on board the United States mail steamer " Crescent City." The secretary says, " that although your excellency despises such ridiculous falsehoods, you still deem it a duty to make it known to their author that her Majesty's government will not permit things of this nature to be reproduced with impunity," and that your excellency " has issued orders that immediately the said steamer ' Crescent City' shall arrive in this city, a police officer will be sent on board with an express order to prevent the landing of the said Smith ;" and that " in future, if this individual shall return, or any other person employed in the steamers belonging to the company shall take the liberty to abuse in a similar manner the privileges extended to them by the Spanish authorities in the ports of Cuba, this sole fact will be sufficient for the vessel conveying such person to be refused an entry, whatsoever may be the losses that may accrue to the company ; as, although it is not in their power to prevent their subordinates from committing such ex- cesses, their honor and interest ought to oblige them to withdraw im- mediately their trust from any one who may attempt to compromit them foolishly." And your excellency advises me that " you are firmly CASE OP THE BLACK WARRIOR, ETC 11 resolved to carry into effect, in case any opposition should be attempt- ed, the order of the superior government." As the secretary's communication to Drake & Co., was made under date of the 4th instant, seventeen days since, they state that they have advised the owners of the steamers of the import thereof for their gov- ernment. And as your excellency now states to me your firm inten- tion to carry into effect the determination your excellency has come to in this matter, it remains for me merely to communicate the same to my government. I cannot, however, refrain from expressing my deep regret that anything should have occurred to induce your excellency to take such a step, particularly as it will involve other persons entirely innocent of such offences in much loss and difficulty. And besides, as the steamships "Crescent City" and "Empire City" are the bearers of the United States mail, any interruption, caused by your excel- lency's government, in the progress of their duties, will result in much harm, and be anything but conciliatory with the federal government of the United States. I have the honor to be, respectfully, your excellency's, &c, JOHN MORELAND, Acting Consul. His Excellency Sefior D. Valentin CaNedo, Governor and Captain General, 8fc. Mr. Roberts to the Secretary of State. Office of the U. S. Mail Steamship Company, New York, October 6, 1852. Sir : I have the honor to state to you, that we learn by telegraph from New Orleans, this afternoon, that the U. S. mail steamship " Crescent City," Captain Porter, United States navy, on her arrival at Havana from this port, whence she sailed on the 27th ultimo, with mails, passengers, and freight, was not permitted to enter that port, or was ordered out of the harbor forthwith. She was, accordingly, com- pelled to proceed, with her mails, passengers, and freight, to New Orleans. This is not the first instance in which the ships of this company, and the American flag, have been subjected to injury and insult by the Cuban authorities. The "Ohio," commanded by an officer of the United States navy, and conveying the government mails, was ordered, without cause or provocation, and against the protest of her com- mander, to an unsafe and hazardous anchorage, under the guns of the Moro Castle, or forthwith to leave the harbor, without being al- lowed to deliver her mails or freight, or to obtain her usual supply of coals. The " Falcon," also, commanded by an American naval officer, was fired upon and boarded on the high seas, by a Spanish vessel of war. The " Philadelphia," also bearing the United States mails, en- tered the port of Havana, (her usual place of coaling and obtaining supplies,) in distress, destitute of coal and provisions, and with many of her passengers sick. After being ordered to quarantine and having proceeded thither, she was ordered several miles outside, and then per- 12 CASE OP THE BLACK WARRIOR, ETC emptorily driven from her anchorage, without being allowed to receive on board her coals and provisions, then alongside, for the want of which her passengers and crew were suffering, and was compelled to go to sea, to the imminent danger of the safety of the steamer and mails, and with fatal consequences to many of the persons on board. And this systematic course of insult and outrage has been followed up, by driv- ing the "Crescent City," in the service of the government of the United States, and commanded by an American naval officer, from the harbor of Havana, without being allowed to deliver her mails, to land her pas- sengers or freight, destined for that port, or to obtain her supply of coals. The conduct of the Cuban authorities in these repeated and wanton acts of hostility, not only causes a serious interruption to the due de- livery of the mails, but is a great detriment and loss to this company, in disturbing its business and its contract arrangements with the gov- ernment ; a serious annoyance and injury to American citizens, passen- gers, and shippers, and to the trade and commerce between the two countries ; and is calculated, if not designed, to disturb the amicable relations heretofore existing between the two governments. More than this, we cannot but regard it as a gross insult to the American flag, derogatory to our national character, and in violation of our national rights. The pretext on which this last outrage has been perpetrated, is the allegation that the purser of the "Crescent City" made a publication in an American newspaper, of some of the statements of which the Cuban authorities complain. The allegation is unfounded ; but, if it were true, we know of no right on the part of a foreign government to dictate to an American citizen, in his own country, what he shall utter or ab- stain from uttering, through the journals of his own country. It has ever been the aim of this company to avoid the semblance of anything that could give offence to the Spanish authorities of the island of Cuba. Its commanders, and all persons in its employment, have been uniformly instructed to abstain from all interference in the affairs of that government, and I have no reason to think that these instruc- tions have not been fully complied with. We have forborne to call the attention of our government to the in- sults by the Cuban officials to which the ships of this company and the American flag have been heretofore subjected, from a desire to avoid everything that might lead to irritation between the two governments, and from a belief, that a knowledge of the unfounded nature of the alle- gations on which they pretended to act would prevent their repetition. But we feel it due, not less to the public interests confided to our charge, than to our own interests and the interests of American citizens engaged in a peaceful and lawful commerce, to bring these facts to the consid- eration of the American government ; and to ask, as American citizens in the service of the government, and required by it to deliver its mails, protection and redress ; or to be allowed to redress the grievance and repel the insult to our national flag, with such means and in such man- ner as we can, and shall deem equal and due to self-protection. I have the honor to be, with high respect, your obedient servant, M. O. ROBERTS, By order of the United States Mail Steamship Company. CASE OF THE BLACK WARRIOR, ETC. 13 Mr. Morland to the Secretary of State. Consulate of the United States, Havana, October 7, 1852. Sir : Since my last dispatch, No. 13, under date 23d ultimo, and on the 3d instant, at a little past three o'clock p. m., the United States mail steamer " Crescent City," commanded by Lieutenant Porter, of the United States navy, arrived here with the mails on board, and sixty-five passengers, to be landed in this city, and, agreeably to what was threatened by the Captain General, in his official communication of the 21st ultimo, to me, copy of which was transmitted to you, he was peremptorily ordered to leave the port, without being permitted to land either mails or passengers. Captain Porter was permitted to send me his protest, under cover, against the authorities here, which, owing to the shortness of the time he stayed, I was not enabled to send to the Captain General, with a communication from myself, before his departure ; neither was I able to communicate with Captain Porter, but I sent the document to the Captain General early next morning, since which I have not heard from his excellency. I accompany herewith a copy of Captain Porter's protest, and of my note to the Captain General when the same was sent to him. I have the honor to be, sir, with great respect, your obedient servant, JOHN MORLAND, Acting Consul. Consulate of the United States, Havana, October 4, 1852. Most Excellent Sir : The accompanying document I received last evening, to be sent to your excellency, from Captain Porter, of the United States mail steamer "Crescent City," who was ordered out of port immediately, before I could have time to comply with his request. Captain Porter has been obliged to take with him the mails intended for this port, and upwards of sixty passengers destined for this city. I have the honor to be your excellency's obedient servant, JOHN MORLAND, Commercial agent, in charge of the Consulate of the United States. October 2, 1852. Whereas the Spanish authorities in Cuba have issued an order to prevent the entrance of the United States mail steamship Crescent City into the port at Havana, to which the said steamship is bound in the pursuit of her legitimate business, no offence having been com- mitted, on the coast pf Cuba, against the laws of Spain, by the officers or crew of said vessel, and the said order being in direct contravention of the treaty stipulations between the two countries, I do therefore strongly protest, in the name of the United States Mail Steamship Company, whose interest I represent, and also in the name of the gov- ernment of the United States, whose officer I am, against a proceeding so arbitrary. 14 CASE OP THE BLACK WARRIOR, ETC The Spanish authorities in Cuba, for the extraordinary course taken by them, profess to hold the United States Mail Steamship Company responsible for newspaper articles published in the United States, and which are alleged to have been written by the purser of the Cres- cent City. It has been distinctly declared by me, (though no such declaration was called for on my part,) that Mr. Smith, the purser, had no agency in composing or publishing any such articles. I protest against the United States Mail Steamship Company being held responsible for the publication of any articles in the newspapers of the United States, as such matters are wholly beyond the control of said company, as well as of the officers of the ships connected therewith. The press of the United States acknowledges no direct censorship from any quarter whatsoever, and is amenable only to the laws of the government. I protest against an American citizen, and an officer of the ship, being held responsible for such publications, and being treated with personal disrespect; such conduct is unworthy a nation that pro- fesses to have attained the highest degree of civilization. I protest against the non-admission of this ship into the harbor of Havana, as it is a deep injury to the United States Mail Steamship Company, who are thereby disabled from complying with their con- tract to the government of the United States, and which company have already received most serious injuries from the hands of the Spanish government by having their ships driven out of the harbor of Havana. Respectfully submitted : DAVID D. PORTER, Lieut. U. S. N., and commanding U. S. mail steamship Crescent City. To the Authorities of Cuba. Mr. Conrad to Mr. Roberts. Department of State, Washington, October 8, 1852. Sir : Having occasion for a personal interview with you, I will thank you to come to this city for that purpose as soon as may be practicable. I am, sir, &c, C. M. CONRAD, Acting Secretary. M. O. Roberts, Esq., President of the U. S. Mail Steamship Company, New York. Mr. Conrad to Mr. SharJcey. Department of State, Washington, October 11, 1852. Sir : I have to acknowledge the receipt of the dispatch from the consulate, No. 13, accompanied by its correspondence with the Cap- tain General of Cuba, occasioned by an alleged publication in the news- CASE OF THE BLACK WARRIOR, ETC. 15 papers of New York of intelligence relative to that island, by William Smith, the purser of the United States mail steamer Crescent city. Since your dispatch reached the department, a letter has been received from the president of the Steamship Company, stating that the " Cres- cent city had been forbidden to land her passengers and mails at Havana, and had been ordered out of that harbor. The letter also states that the Cuban authorities had previously committed similar acts of inhospitality towards other steamers of the same company. The public journals have also recently represented that United States vessels generally, at Havana, have been subjected by the authorities to various annoyances ; that they have been searched ; that police officers have been placed and kept on board of them ; and that their letter bags have been opened and letters taken therefrom, &c. The department has no means of judging of the truth of this statement, especially as your dispatches are silent on the subject. You will therefore lose no time in collecting and transmitting accurate information on the subject. I am, sir, &c, C. M. CONRAD, Acting Secretary. To Wm. L. Sharkey, Esq., &fc, #"c, Sfc. Mr. Sharkey to Mr. Conrad. [Extract.] Vicksbtjrg, October 11, 1852. Sir :** * * * * * * * A new cause of difficulty has now occurred in consequence of the course pursued by the authorities of Havana towards the steamer Crescent city. This affair will doubtless command the attention of the govern- ment, and, it is hoped, be adjusted without difficulty. Allow me to say that a new treaty with Spain might possibly be the best means of producing a permanent good understanding between the two gov- ernments. I hope to be in Havana by the first of November at furthest, and will be happy to observe any instruction the department may think proper to give. With great regard, I have the honor to be your obedient servant, W. L. SHARKEY. Hon. C. M. Conrad, Acting Secretary of State of the United States. Mr. Morland to Mr. Webster. [No. 15.] Consulate of the United States, Havana, October 18, 1852. Sir : The arrival of the " Crescent city" here on the 14th instant caused very considerable sensation. This vessel was suffered to lie, 16 CASE OF THE BLACK WARRIOR, ETC. but not permitted to land her mail or passengers, or to have any com- munication with the shore ; but the government boats went alongside and communicated with Captain Porter, who desired a communication to be delivered to me, but was refused. Believing there was something that might require action on my part, I went personally to the Captain General to get his permission to go and receive it. On arriving at the country seat of his excellency, I found there one of the consignees of the vessel, (who had been, as I understood, alongside with the authorities,) who represented to the Captain General that there was a package for me on board, and that he understood Captain Porter to say that it was a communication from the American government, which induced his excellency to give his permission for me to communicate with Captain Porter, and to receive the dispatch, which was done ; but on opening it, I merely found another protest, (copy of which is herewith enclosed,) and which I transmitted to the Captain General, informing him likewise that Captain Porter had stated that he had come by express orders of the Postmaster General. Having in my previous communication of the 4th instant stated the fact of the " Crescent city" being the bearer of the United States mails, and officered by officers of the navy of the United States, no notice was taken until the 16ih, when, at 10 o'clock p. m., I received a communi- cation, (copy of which is herewith enclosed,) under date of 15th instant, wherein you will notice he rebukes me for acting in affairs foreign to my functions. Considering the " Crescent city" very different from a common mer- chant vessel, as a vessel chartered by the United States to carry the mails, and officered by officers from the Americen navy by permission of government, I had no hesitation in sending Captain Porter's protest, in both cases, and shall make such explanation to the Captain General. I have the honor to be, very respectfully, your obedient servant, JOHN MORLAND, Acting Consul. Hon. Daniel Webster, Secretary of State, Washington city. Consulate of the United States, Havana, October 14, 1852. Most Excellent Sir : Having, by your excellency's permission, gone alongside of the American mail steamer " Crescent city," to re- ceive from Captain Porter a package said, as I understood Mr. Morales to say to your excellency, to contain dispatches from the government of the United States, I received from Captain Porter a package contain- ing only an extension of his protest, (w T hich I herewith send your excel- lency,) made on the former occasion of his being refused entry here ; but I have to state to your excellency that Captain Porter could not have received dispatches at New Orleans from the United States govern- ment, there not being sufficient time, but that the agent of the mails at New Orleans did receive a telegraphic communication ordering the " Crescent city" with the mails to come to this port, and deliver them, CASE OP THE BLACK WARRIOR, ETC 17 if permitted ; if not, to proceed on to New York. This I believe is what the captain communicated to Mr. Morales, as those orders were from the Postmaster General of the United Statee, who is a member of the Cabinet. These vessels bearing the United States mail are hired for that purpose, and officered entirely by officers of the navy of the United States. I have the honor to be, with great respect, your excellency's obedient servant. JNO. MORLAND, Com. Agt. in charge of the Consulate of the United States. His Excellency Sefior D. Valentin CaNedo, Governor and Captain General of Cuba, fyc, &fc., fyc. Protest. October 14, 1852. Whereas the first article of the treaty of amity between Spain and the United States declares there shall be a firm and inviolable peace and sincere friendship between his Catholic Majesty, his successors and subjects, and the United States, and the citizens, without exception of persons or places. Article 6th of the same treaty promises mutual assistance and kindly acts towards the ships of either power when in the ports of the other, which engages to defend and protect them to the extent of jurisdiction by land or sea ; and article 9th secures to the citizens or subjects of each free access to the courts of justice of the other in all cases, and provides that all cases be prosecuted by order and authority of law only, and that the parties shall have liberty of counsel and defence. How far the Spanish authorities in Cuba have conformed to this treaty is apparent from the fact that they have arbitrarily, and without any form or process of law, caused a United States Steamship engaged in the pursuit of a legitimate and peaceful business to be turned from their port on one occasion, and refused communication on another, for an imputed offence committed in the territory of the United States, and which offence, if actually committed within their own territory, the Spanish authorities had no right to punish an American citizen for.. On two occasions the undersigned has, in plain terms, denied that Purser Wm. Smith wrote anything against the Spanish government in the newspapers of Vac United States, but the word of an officer (who has heretofore enjoyed the confidence of his government and the com- pany he serves) has been as entirely disregarded by the Cuban authori- ties as if they were ignorant of the polity which governs civilized nations. On the contrary, they have pursued a vindictive course, which must, if persevered in, inflict great and serious injury on the commerce ot the United States, and against which course, as applied to this vessel or any of the company's vessels, he, the undersigned, once more most strongly protests. The undersigned begs leave to dvnw the attention of the Spanish 18 CASE OF THE BLACK WARRIOR, ETC. government in Cuba to the fact that the Crescent City sailed from New York with a large number of American and Cuban passengers on board, every one of whom had with him a passport from the Spanish con- sul at New York, granting permission to sail in the Crescent City, for the port of Havana, with a guarantee of sale landing on the shores of Cuba; moreover, that the Spanish consul at that place did not inform the pas- sengers, or give any notice to the United States Mail Steamship Com- pany that there was a likelihood of the Crescent City being prevented from entering the port of Havana. It is true that a " manifesto" was issued to the undersigned; but the company were in no wise bound by such a "manifesto," having per- fect right to consider it as the hasty and ill-advised act of a subordi- nate officer, Martin Galiano, b\ r whom it was signed, which act, if per- severed in, would interrupt the friendly intercourse of the two countries, and which they would likely not repeat after the disavowal of the im- puted offence, of the undersigned. The Spanish authorities in Cuba have, in the most arbitrary course pursued by them, violated the treat\ T of amity existing between the two countries — have inflicted serious injuries on private individuals, and on this company. Interests of large amount are likely to suffer by the non-deliverance of the mail intrusted to the government officer of a friendly nation, and the wheels of commerce, as far as regards this ship, are entirely at a stand. Mr. Smith, the officer in question, has been a long time employed in the eompairy's service by the full knowledge and previous countenance of the Spanish authorities, who have driven him from their harbor; and it is a well known fact that the undersigned, and those under his command, have always abstained from any acts of interference with the affairs of the island, either bv speech or act, though it might naturally be supposed that they could not help but sympathize with the misfor- tunes of captives. In conclusion, the undersigned takes this opportunity to protest again, in the strongest terms, against the indefensible disregard of the treaty of amit}" and law of nations by which American citizens are, without notice and legal accusation of offence, or opportunity offered to defend themselves, subjected to proscription and severe mercantile loss — the flag of the United States treated with scorn and contempt, and the government treated with disrespect, in the person of its officer, who, though commanding a ship owned by a eompairy, is placed in his po- sition by a written order of the United States government, and by a law of Congress of the United States. • The undersigned also protests against not being allowed to make known to the American consul the situation in which he is placed, having been refused, most positively, permission to communicate with the representative of* the United States in the island of Cuba. An ap- peal to the consul of a country is even respected among the Barbary Powers, of whom a knowledge of the law of nations is not so much to be expected. Respectfully submitted : D. D. PORTER, Lieut. U. S. N. . To the Spanish Authorities of Cuba. • CASE OF THE BLACK WARRIOR, ETC 19 [Translation.] [ L . s.] Political Department, Section First, Havana, October 15, 1852. Sir : With your communication of the 4th instant I have received the document which is addressed to me by one Porter, captain of the merchant steamer "Crescent City," comprising the protest which he thought proper to make on his arrival at this port the day before. Neither on account of the character of the contents of this document, nor in consideration of the unusual form in whi^h it has been drawn, can I permit myself to enter into any reply in regard to it, and there- fore I confine myself to state that I have acquainted my government with the matter to which it refers, and 1 hope, in future, that you will abstain from addressing yourself to my authority concerning matters which, like the present, are foreign to your functions. God preserve you a thousand years. VALENTIN CANEDO. To the Commercial Agent of the United States at this ylace. Consulate of the United States, Havana, October 18, 1852. Most Excellent Sir: Your excellency's communication of the 15th reached me on the 16th late at night; and as your excellency is pleased to rebuke me for sending to your excellency Lieutenant Porter's pro- test, and consider the " Crescent City " as a mere merchant-vessel, I beg leave to state that the " Crescent City" and "Empire City" are both vessels freighted by the government of the United States, and are com- . mianded by officers of the navy of the United States, placed there by permission and with the approval of the government. Hence it was that I considered it my duty to forward to your excellency Lieutenant Porter's protest, without any wish or intention to enter into any ques- tions that might be considered foreign to my functions ; and I now merely give your excellenc}^ this statement, believing that your excel- lency may not have been aware of the true character of the "Crescent City ;" and I was in hopes the positive, denial of Lieutenant Porter that William Smith, the purser of that vessel, had ever given anything to the press in the United States, of any nature whatever, would have had some influence in producing a more favorable view of the sup- posed act. I take this opportunity of acknowledging the receipt of your excel- lency's communication relative to Samuel Harme, (dated 18th instant,) for which your excellency will pLase receive my thanks. •I have the honor to be > our excellency's obedient servant, JNO. MORLAND, Commercial Agent in charge of the Consulate of the U. S. His Excellency Senor Don Valentin CaKedo, Governor and Caytain General of Cuba, 8fc. 20 CASE OF THE BLACK WARRIOR, ETC Mr. Mori and to the Secretary of State. m [Extract.] [No. 16.1 Consulate of the United States, Havana, October 20, 1852. Sir : My dispatch No. 15, under date 18th instant, sent per mail schooner via Charleston, contained sundiy documents touching the affair of the " Crescent City." I now have the honor to enclose here- with duplicates of my said dispatch, and of the papers accompanying it. I likewise transmfc a copy of my answer to the Captain General's communication of the ]5th instant, which I had no time to prepare for transmission by that vessel, as she stopped here but a few minutes after it was written. I have the honor to be, sir, with great respect, your obedient servant, JNO. MORLAND, Acting Co?isid. Mr. Roberts to the Acting Secretary of State. Office of the U. S. Mail Steamship Company, New York, October 21, 1852. Sir : I have the honor to enclose, herewith, an affidavit made and subscribed by Mr. William Smith, purser of the United States mail steamship "Crescent City," by which it will be seen how utterly un- founded have been all the charges in relation to calumnious publica- tions alleged to have been made by him against the government of the island of Cuba, or of any interference in its affairs, and how causeless has been the high-handed course of its authorities in this respect. I have the honor to be. with high respect, your obedient servant, M. O. ROBERTS, Agent of the U. S. Mail Steamship Company* % United States of America, ) Southern District of New York, y I, William Smith, purser of the United States mail steamship "Crescent City," being duly sworn, depose and say, that the allega- tion contained in a certain order or manifesto, signed " M. Galliano," an officer of the government of the island of Cuba, dated at Havana the 4th day of September, 1852, and repeated in the official paper at Havana, that I had " published the most gross calumnies against the government of said island," and the further allegations, which I under- stand have been made unofficially to the government of the United States, that I had held communication with disaffected persons in the port of Havana or the island of Cuba, and had been the bearer of letters or messages to and from such persons, are all utterly without foundation. I have never written or published anything against the government of the said island of Cuba, nor have I ever carried letters CASE OF THE BLACK WARRIOR, ETC 21 or messages to and from disaffected persons in said island, or held any communication with such persons, or in any manner interfered with the affairs of the said island, or the proceedings of its authorities. I have confined myself strictly to the discharge of the duties of purser of the ship, and have demeaned myself accordingly. Furthermore, it has been the express command of Captain Porter, and of the Mail Steam- ship Company, that no officer or person employed on the ship should be allowed to carry letters outside of the mail, other than those be- longing to the ship's business ; and, when letters have been sent on the steamer after the mails have been closed arid Reived on board, they have been placed in charge of the purser, and in all cases delivered to the postmaster at Havana. I also further depose and say, that I have never been in any manner connected with any association or expedition for hostile purposes in re- lation to the island of Cuba, or for annoying, resisting, or interfering with its authorities. WILLIAM SMITH. Sworn to this 21st day of October, 1852, before me, JOSEPH BRIDGHAM, U. S. Com. Southern District of New York. Mr. Law to the Acting Secretary of State. Office of the U. S. Mail Steamship Company, New York, October 23, 1852. Sir : Mr. Roberts had the honor to address you on the 6th instant, in relation to the course of the authorities of the island of Cuba towards the steamships of this company, and especially in relation to the " Crescent City." I await your reply to his communication, to determine the course of the company. The 27th instant being the sailing day of the next steamer for" New Orleans, via Havana, we are daily inquired of whether mails and passengers can be allowed to land at Havana, and whether the Cuban authorities are to be permitted to continue the course towards the ships of this company, of which the government of the United States have been heretofore apprized. I have the honor to be, very respectfully, your obedient' servant, GEORGE LAW, President. Mr. Conrad to Mr. Law. Department of State, Washington, October 25, 1852. Sir : Your letter of the 23d instant has been received. No intelli- gence has reached this department from Cuba, since that which was received by your steamer. It has no means of knowing the intentions of the authorities of the island other than what, you possess, and can- 22 CASE OF THE BLACK WARRIOR, ETC not, therefore, inform you whether mails or passengers will be per- mitted to land there or not. It mny, however, be inferred, froni the last proceedings of the authorities, that the mail and passengers con- veyed in the steamer Crescent City will not be permitted to land them, in case the individual named, William Smith, should remain on board of her. I am, sir, very respectfully, your obedient servant, C. M. CONRAD, Acting Secretary. George Law, Esq., New York. Mr. Law to Mr. Conrad. Office of the U. S. Mail Steamship Company, New York, October 27, 1852. Sir : I had this day the honor to receive your letter of the 25th instant. On the 6th instant we addressed the Department of State a letter, detailing at some length the grievances of which this company feels it has a right to complain in relation to the course on various occasions of the authorities of the island of Cuba towards the ships of this com- pany ; and we respectfully requested to be advised as to our own rights, and whether the government of Cuba were justified in pursuing the course above alluded to. Our motives in writing that letter were to bring to the notice of our government, which we felt bound to do, certain acts of a foreign gov- ernment which we could not but regard as oppressive and unjust to- wards this company, and to American citizens and shippers engaged in lawful commerce with that power, and also as an insult to the flag of our country. The company suppose that the authorities of Cuba had no right to dictate to our own government or to the owners 'of Ameri- can ships who should be employed on board of them, or to make a compliance or non-compliance with their dictation in this respect a pretext for excluding such ships, with their passengers and mails, as did not conform to their directions in relation to the employes on board of them. If these impressions were not well founded, we supposed that we should be so advised by the Department of State. If they were well founded, we had, as we supposed, a right to expect from our government protection against the injury. We have as yet received no reply from the Department of State to our letter of the 6th instant, although addressed in duplicate both to Washington and Marshfield ; and the letter of the Acting Secretary of State of the 25th instant, in reply to my letter of the 23d, fails to afford us the desired information. Every day's delay is, and has been, a great loss to this company, ex- tremely detrimental to the commercial interests of the country, and, more than all, subjects us, if correct in our impressions, to the humilia- tion of submitting to a wrong. I desire respectfully to say that it was less our intention to inquire what course the government of Cuba would pursue than to ascertain what interpretation our own government gave to the rights of Ameri- CASE OF THE BLACK WARRIOR, ETC. 23 can citizens and of this company, and what course was expected of the company, in order to know "how far we would be able to comply with it. I have the honor to be, very respectfully, your obedient servant, GEORGE LAW, President. Hon. C. M. Conrad, Acting Secretary of State. Mr. Morland, Acting Co?md, to Mr. Conrad. [Extract.] TNo. 17.1 Consulate of the United States, Havana, October 27, 1852. ' Sir: I have had the honor to receive your dispatch of the 11th inst., by U. S. steamship Powhatan, which arrived in this port on the 23d, having on board the minister to Mexico and Commodore Newton. I now beg leave to reply to the several questions contained in your said dispatch, by referring you to my communications, Nos. 13, 14, 15 and 16, relative to the affair of the U. S. mail steamship " Crescent City." As to the "El Dorado" steamer, the treatment whereof by the authorities here has been brought to the notice of the Department of State, I have to say that the affair occurred when Mr. Sharkey, the consul, was here. I learn, however, that she came here from Aspin- wall on the 19th day of July last, with 290 passengers, five having died on the passage, and three being sick with fever on arrival^ but - no cholera. This vessel was not allowed to have fuel, provisions, or water sent to her, (of which she was in great need,) but these articles were taken to her outside by the "Empire City" steamer, belonging to the same company. The "El Dorado" was allowed to make fast to a buoy one mile outside the Moro, until the health officers had visited her, when the Captain General called a meeting of the Board of Health, which decreed that the ship must immediately leave the port, not permitting her to lie at anchor a moment longer, or to have commu- nication of any kind with the shore. She therefore proceeded to Key West. These facts appear in the records of this consulate, in a pro- test entered by the agent of the company owning the " El Dorado." The other complaints made by our merchant ships are, particularly, the placing on board police officers and soldiers on two or three of them, to prevent any obnoxious person from landing, and also to pre- vent such parties as are accused of being connected with the supposed attempt at revolt from escaping out of this island. This, of course, is annoying enough. The custom has been more particularly exercised in the case of American steamers, where so many passengers come and go, that it is very easy for parties to effect their escape ; find I have heard, from good authority,- that many have so escaped. A police officer is placed on board of every merchant vessel that brings pas- sengers. It is an annoyance, no doubt, but I do not think it is in any- way prejudicial to the interests of American commerce. 24 CASE OF THE BLACK WARRIOR, ETC I will now state, in obedience to your directions, the details of the late occurrence relative to the barque Cornelia, Captain Ward, of New York, which appears to be the most important case excepting that of the " Crescent City." That vessel had cleared and was proceeding to sea, when a government boat went alongside to search for a sus- pected person, and some dispatches supposed to have been sent under his care from the disaffected here to certain people in the United States connected with them. The person was found on board ; and although he had his passport, he was taken out of the Cornelia and brought ashore, and he has been in prison ever since. The officer likewise found a Mr. Samuel Harme, or Hearkness, an American engineer, se- creted on board, as he had no passport ; he was also brought on shore and imprisoned, but allowed his liberty in a few days at my request. The captain of the Cornelia came to the consulate and noted his pro- test, but did not extend it. He stated to me that the captain of the port demanded the dispatches which Guzman (the other person alluded to) was supposed to \m\e, and that he had answered that he could not swear whether he had received them or not, as he was in the habit of throwing into a drawer all letters sent on board not in the letter bag. He spoke of abandoning his ship, but I told him that would never do ; and I question whether it was anything more than a mere threat, without any serious intention to do so. He complained of the violent and in- sulting language which he asserted the captain of the port had used to- wards him on his denying a knowledge of the existence of the dispatches sought after. Captain Ward proceeded to sea on the next morning with his letter-bag. There is no doubt but the letter-bag, which had been taken out of the ship by the officers, was examined, and some packages directed to suspicious persons abstracted, as the Captain General gave notice through the newspapers for the persons who may have written those letters, giving the address of each, to call at the palace and witness the opening of the said letters ; and some did go, but how many I know not; and as mere reports are less to be trusted here than anywhere I have ever been, I shall not venture to give any. Under these circumstances, when the laws were violated on the one hand, and the government was protecting itself on the other, I did not deem it a case in which I had a right to interfere ; therefore I made no official report of it to the department. * * # * # ■ * I have the honor to be, sir, with great respect, your most obedient servant, JOHN MORLAND, Acting Consul Hon. C. M. Conrad, Acting Secretary of State, Washington. Mr. Conrad to Mr. Barringcr. [No. 64.] Department of State, Washington, October 28, 1852. Sir: An incident connected with our relations with Spain has re- cently occurred, which is of so grave a character as, in the opinion of CASE OF THE BLACK WAKRIOR, ETC. 25 the President, to require: that it should be immediately laid before the government of that country. t In the year 1847 a company was formed, under the auspices of this government, for the purpose of conveying the mails in steamships from New York and New Orleans to Havana, there to connect with another line to the Isthmus of Panama. The law under which the arrange- ment was made required that the steamers should be placed, to a cer- tain extent, under the control of the government, and should be com- manded by officers of the navy. Under this arrangement the mails have been regularly carried from New York and New Orleans to Havana and back. By another arrangement the mail is carried from Charleston to Havana.* All this has been done with the full knowledge of the Spanish government and of the local authorities. (See the in- structions of Mr. Buchanan to Mr. Saunders, No. 16, and Mr. Saunder's dispatches to the department, Nos. 26, 27, 28, 33, 47, 49, and 51 ; see also copy of a letter from Mr. Campbell, United States consul at Ha- vana, to "Mr. Buchanan, dated November 17, 1847, which is hereto annexed.) These documents all refer to the Charleston line alone, but the New York and New Orleans line went into operation about the same time, and the same facilities have, it is understood, been extended by the local authorities to both lines. The mails carried by the steamers are placed in the charge of an agent of the Post Office Department on board, and, on their arrival at Havana, are delivered to the postmaster of that place on his receipt, and the return mails are received from him. On the 3d instant the Crescent City, one of the steamers employed in this service, on her voyage from New York to New Orleans, touched, as usual, at Havana to land the mail and the passengers (65 in number) destined for that port. She was not permitted to land or send the mail ashore, but was peremptorily ordered out of the harbor, although it was then threatening a gale. This government has deferred taking any action in relation to the matter until the facts could be fully ascertained. This has been done. The reports of the acting consul at Havana, (the consul himself being then absent,) and of the 'captain of the steamer, have been received. From these documents, copies of which are hereto annexed, it appears that on the preceding voyage of the Crescent City to Havana — to wit : on the 4th day of September — the agents of the company (a commer- cial firm in that city) were informed, by a letter from the secretary of the Superior Civil Government, that an individual of the name of Wm. Smith, the purser of the vessel, had, on his arrival at New York from the preceding voyage, published the grossest calumnies against the gov- ernment of the island; and that if that individual should thereafter re- turn in any of the steamers of the company, or if any other person employed on board of them should venture to abase, in a similar manner, the privileges granted by the Spanish authorities in the ports of the island, that fact alone should be sufficient to prevent the vessel which brought him irom entering the port. No notice of this order was given to the American consul until the 21st of September, when a copy of the letter addressed by the Superior Civil Secretary to the agents of the company was sent to the acting consul by the Captain General, 26 CASE OF THE BLACK WARRIOR, ETC although in the interval between the two dates the steamer had arrived at Havana, and again departed for New York ; consequently, the acting consul had no means of notifying this government of its existence 4h time for it to take any action in the matter before the return of the steamer to Havana; nor was any notice given to the government through the Spanish minister in this country. The consequence was, that the steamer returned to Havana with the obnoxious individual on board, and, as has already been stated, was prohibited from landing, On her return voyage from New Orleans to New York, and before this government was apprized of the fact, she again put into Havana to land the mail, and, for the same reason, was again denied permission to do so. You will observe, that the secretary of the Superior Civil Government, in his letter to Messrs. Drake & Co., the agents of the company, declares that it was the intention of the government to persist in the course adopted towards the Crescent City, and that if any person employed on board of one of the steamers of the company should com- mit a similar offence to that with which the purser of that vessel was charged, that fact alone would be a sufficient cause for excluding such steamer from the port. It may be well to add, that Wm. Smith, the individual whose alleged calumnies against the government had occasioned these proceedings, has, since his return to this country, made oath that this charge is en- tirely unfounded, and that he has " never written or published anything against the government of the island of Cuba." (See copy of his affi- davit, herewith enclosed, marked A.) The President directs that you lose no time in communicating these facts to her majesty's government, and in expressing his surprise and regret that they should have occurred. You will state that this government does not question the right of every nation to prescribe the conditions on which the vessels of other nations may be admitted into her ports. That, nevertheless, those con- ditions ought not to conflict with the received usages which regulate the commercial intercourse between civilized nations. That those usages are well known and long established, and no nation can disregard them without giving just cause of complaint to all other nations whose inter- ests would be affected by their violation. , That the circumstance of an officer of a vessel' having published, in his own country, matter offensive to a foreign government, does not, according to those usages, furnish a. sufficient cause for excluding such vessel from the ports of the latter. That, moreover, the Crescent City was at the time of this Occurrence employed in the transportation of the mail,- which is everywhere a mat- ter of great public concern. That, in this country, the duty of providing for this object, whether at home or abroad, devolves upon the executive branch of the govern- ment; and although it is invariably discharged not directly through its own officers, but through the medium of contracts with individuals, the government is responsible for the proper performance of this duty. Any measure, therefore, tending to impede its fulfilment, cannot be viewed as directed against the agents to whom its execution is intrusted, but against the government itself CASE OP THE BLACK WARRIOR, ETC. 27 That the steamerts employed in transporting the mail from this coun- try to Havana, being in the employment of government, and placed by law, to a certain extent, under its control, partake, in some degree, of the character of public vessels. That, although no positive arrangements exist between this govern- ment and that of Spain, relative to the mail service between their re- spective countries, that government was fully aware that mails were regularly conveyed from the United States to the city of Havana, and the local authorities, so far from objecting to this practice, had not only acquiesced in it for a series of years, but had, in various ways, sanc- tioned and encouraged it. That, under these circumstances, this government had a right to ex- pect, that if the Captain General of the island should see fit to impose new and unusual conditions upon the continuance of these mails, due notice of these conditions would be given to this government before proceeding to enforce the penalties attached to their non-observance. Bat before it was possible for this government to have any official knowledge of the Captain General's intentions, the mail was sent away, and the vessel that conveyed it was, in a manner unusually harsh and offensive, driven from the harbor. All this was done, not for any vio- lation of the laws of nations, or of Spain, but for an act alleged to have been done by a subordinate employe of the company, in his own country, and of which there is every reason to believe he is en- tirely innocent. That the President cannot but consider this proceeding, under all its circumstances, as not only a violation of the usages of civilized na- tions, and of the tacit understanding which may fairly be said to result from the long acquiescence of Spain in the transportation of a mail to Havana, but as an act of marked discourtesy to this government. If the, Captain General thought that a vindication of his character, or his dignity, required that he should notice anonymous attacks made on his government by the newspapers of a foreign country, the means em- ployed for that purpose- should, at least, have been consistent with jus- tice, the usages of nations, and the courtesy due to a friendly govern- ment. That some apology might have been found for it in the irritation caused by a supposed insult to the government ; but that, from the let- ter of the Captain General to the acting consul of the United States, it would seem that it was the result of a deliberate policy, and that it was the determination of the government to apply to the mail steamers of the United States a system of treatment different from that which was appliecf to all other vessels. The President will not permit himself for a moment to believe that her Majesty's government will sanction an order which amounts almost to a declaration of hostility to this government ; but, on the contrary, con- fidently anticipates that it will receive its prompt and decided disappro- bation. Should he be disappointed in this expectation, this government will then be called upon to determine what course a just sense of what is due to its own dignity and interests requires it to pursue. In conclusion, you will remind her Majesty's government that in the efforts it has constant!} 7- made to restrain any portion of the inhabitants of 28 CASE OF THE BLACK WARRIOR, ETC. this country from disturbing the peace of her Majesty's dominions, this government has unequivocally manifested its anxious desire to cultivate the most friendly relations with that of Spain. That an additional proof of this desire has recently been afforded by this government in making an exception to the usual practiee of most nations, by taking steps towards indemnifying the subjects of her Majesty who had sus- tained losses by the acts of a mob in one of our cities. That, on the other hand, in the clemency extended by her Majesty towards a num- ber of misguided citizens of this country, who had justly incurred the penalty of her laws, this government had beheld a gratifying evidence that these kind feelings were reciprocated by her Majesty's government. You will assure her Majesty's government that this government is disposed to make every allowance for the distrust naturally engendered by past events, and for the desire of the local authorities to adopt all reasonable precautions to prevent their recurrence ; but that if the measures recently adopted by them were designed for that purpose, they are calculated to defeat their own object, as they must manifestly tend not only to encourage those who are engaged in unlawful schemes against the island, but to awaken the just resentment of the sober and intelligent citizens of the country, and seriously to compromit the peace of the two nations. I am, sir, very respectfullv, your obedient servant, C. M. CONRAD, Acting Secretary. D. M. Barringer, Esq., 6fc, fyc, Madrid. Consulate of the United States, Havana, November 17, 1847. Sir : On the evening of the 15th instant I had the honor of receiv- ing your official communication of the 20th of October, which was brought by the ship Norma from New York. •The subject of mail steamers shall, as you request, receive my best and most energetic at- tention. I had previously been unofficially informed of the contem- plated enterprise, and set myself to ascertain what privileges would be conceded, and am authorized (as yet not officially) to say they will im- mediately be placed on the same footing with the British mail packet steamers. The concessions to the British steamers were obtained at Madrid by the English minister, when Espartero, the friend of England, was prime minister. I shall certainly use every effort to obtain still greater concessions than those already conceded, to wit : 1st. The steamers will be exempted from the payment of all the contributions always charged at the custom-house, in case they come and depart in ballast, or when they bring cargo that no operation is made upon. 2d. They are exempted from custom-house charges when they only land passengers, baggage, packages of samples, newspapers, and other effects of the same kind. 3d. When they import, export, or receive from on board other ves- CASE OF THE BLACK WARRIOR, ETC. 29 sels, articles of commerce not exceeding three tons, of which, however, the respective duties must be paid. 4th. When they import, export, or take to or from other vessels merchandise exceeding three tons, they shall pay like other vessels the duties for visits, registering, and others established, likewise the ton- nage and ponton dues on all free room, excepting that part occupied by the machinery and coal. The above I have # over the signature of the intendente, but not communicated to me officially. You will thus perceive that, for all purposes of mail steamers, the concessions are ample ; as freighting vessels and common carriers, they would have to pay as such when laden. I shall, however, endeavor to obtain greater concessions, in conformity with your instructions, although such concessions would, as freighting ships, give them very great ad- vantages over the sailing vessels and steamers engaged in the freighting of goods to and from the States, as a vessel paying $1 50 per ton could not compete with those passing free of tonnage dues. I have the honor to be, with great respect and esteem, your most obedient servant, ROBERT B. CAMPBELL. Hon. James Buchanan, Secretary of Slate. Mr. Morland to Mr. Conrad. [No. 18.] Consulate of the United States, Havana, October 29, 1852. Sir : Since my communication of the 23d instant, (No. 17,) nothing worthy of notice has occurred here. The United States steam-frigate Powhatan, with the minister to Mexico and Commodore Newton on board, sailed } r esterday morning for Vera Cruz. Judge Conkling informed me that the affair of the mail steamer "Crescent City" had been arranged between him and the Captain General unofficially ; that the steamer would be allowed on her arrival, even if she had Lieutenant Porter and Purser Smith on board, to land the mails and passengers, and also to receive both; but that neither trie lieutenant nor the purser was to come on shore. But it is understood that neither of them is coming in the " Crescent City." I nave the honor to be, &c, » JOHN MORLAND, Acting Consul. Hon. C. M. Conrad, Acting Secretary of State, fyc, $c. 30 CASE OF THE BLACK WARRIOR, ETC Mr. Conrad to Mr. Law. • Department of State, Washington, October 30, 1852. Sir : Your letter of the 27th instant, has been received. That of the 6th instant, to which it refers, was addressed to this de- partment by Mr. M. Q. Roberts. In consequence of the information it contained, that gentleman was requested to repair to Washington. He did so, and had a long conver- sation with me in relation to the occurrences at Havana. He is there- fore fully apprized that the subject has engaged the attention of the department. I have only to add, in reply to your own letter, that, as soon as the department could obtain authentic information of the occurrences re- ferred to, they were made the subject of a communication to the gov- ernment of Spain. When an answer to that communication is received, it will probably be made public. . In the meantime, I must be excused from giving you any informa- tion or advice on the subject. You may rest assured, however, that neither the honor nor the inter- ests of the country will be neglected. I am, shy&c. C. M. CONRAD, Acting Secretary. George Law, Esq., New York. Mr. Calderon to Mr. Conrad. [Translation.] Legation of Spain in Washington, November 5, 1852. His excellency the Captain General of the island of Cnba, Don Valen- tin Canedo, informs the undersigned, in various communications lately received by him, of all that has passed with Captain Porter, of the Crescent City, on his entrance into Havana on the 14th day of October last, and on his presenting his second protest, dated the same &&y. General Cafiedo at the same time gives an account of the friendly and confidential interview which the honorable Judge Conkling had with him, while, stopping at that port on his way to Mexico as envoy extraordinary and minister plenipotentiary from the United States to that republic. In compliance with the request of the General, as well as with a view of making known the facts precisely as they occurred, the undersigned proceeds to give the honorable Mr. Conrad, Secretary of State ad inte- rim, the substance of the above mentioned communications. The Crescent City returned from New Orleans (after having been refused admission into Havana, from persisting to have on board the purser, Mr. Smith/on the 14th October last. The day had not }^et dawned ; CASE OF THE BLACK WARRIOR, ETC 31 and, breaking through the custom observed by all ships, whether na- tional or foreign, the C re sent City entered the bay, refusing to give any reply to the questions put to it from the Moro castle, concerning this proceeding, and the reasons for entering before daybreak, thus infring- ing the regulations of the port, known to all, and respected by all. "When it had cast anchor, the captain of the port made known that the ship must remain without communication with the shore, if the purser, Smith, were on board, although it might continue in the bay all the time which was considered necessary. Senor Morales, representing the house of the consignees, Drake & Co., then presented himself to the Captain General, requesting permis- sion, which was granted him, to go and speak to Captain Porter. A short time after, "the said Mr. Morales returned, accompanied by the vice-consul of the United States, and informed the General that Captain Porter was bearer of a dispatch from his government to the said vice- consul which the latter also affirmed to the General, although referring to the testimony of Mr. Morales. His excellency consented that this dispatch should be received, out of respect to the government of the United States. The Crescent City immediately took its departure, firing a gun as it passed the Moro castle — a demonstration which, although puerile and in bad taste, was considered significative and •ffensive. The Cresent City having left the port, the vice-consul, Mr. Mor- iand, addressed an official letter to the Captain General, dated this same 14th of October, in which he enclosed the second protest before mentioned of Captain Porter, who, in order to insure its reception, had employed this unworthy artifice, which the government of the United States will no doubt condemn. General Canedo enclosed to the under- signed a copy of the said communication of the vice-consul, (translated,) in which is the following : " But I have to make known to your excel- lency, that Captain Porter could not have received dispatches in New Orleans from the government of the United States, because there was not sufficient time for him to have done so ; but that the mail agent in- New Orleans received a telegraphic communication containing the order that the Cresent City should go to Havana with the mail, and should deliver it, if permission were given to that effect; and if not, should continue her voyage to New York. This is what, I believe, was com- municated by Captain Porter to Mr. Morales, this order being from the Postmaster General of the United States, who is a member of the cabinet. As these vessels carry the mail of the United States they are freighted accordingly, and the officers belong exclusively to the navy of the United States." The undersigned leaves it entirely to the upright judgment of the Hon. Secretary to qualify as it deserves the stratagems employed by- Captain Porter for insuring the reception by the Captain General of his irregular protest, and the assertions of the vice-consul, Mr. Morland. Without making any commentary, or entering into any further de- tails, it appears to the undersigned that the above is sufficient to justify the antipathy of the inhabitants of Havana towards Captain Porter, and the universal conviction which is there entertained that he is of the number of those who have proposed to themselves to bring about a 32 CASE OF THE BLACK WARRIOR. ETC misunderstanding between the two countries, notwithstanding the sin- cere desire of the governor of the island of Cuba not only to avoid all disagreement, but to preserve the most cordial harmony ; a desire which his excellency repeatedly expresses in the most unequivocal and sincere manner in tfie communications alluded to by the undersigned. Nor will the Hon. Secretary of State be surprised, if, foreseeing some disagreeable occurrence in regard to Captain Porter and Purser Smith, arising from the public exasperation, however much this would be regretted by the General, and however severely he would punish its authors, that he should have earnestly desired the undersigned to endeavor to persuade this government that prudence and the friendly relations subsisting between both countries render it advisable that the irritation likely to be produced by the presence of these individuals in Havana should be avoided. Of the attention and politeness with which General Cafiedo has received the Hon. Judge Conkling, and of their non-official interviews and conversations, it is probable that the Hon. Secretary of State ad interim has already received circumstantial accounts. The undersigned having received from General Cafiedo a detailed account of the concili- atory result of these interviews, under date of the 29th of last month, and believing that no abstract can give so clear an idea of the circum- stances as his excellences own communication, encloses herewith a literal copy of the dispatch for. the Hon. Secretary of State. The Hon. Secretary will observe that out of respect to the wishes of Judge Conkling, and to show his consideration to the government of the United States, and his high esteem for his excellency President Fillmore, the General has granted permission to the Crescent City, which left New Ydrk on the 27th, to disembark the passengers and the correspondence, but not to land either Captain Porter or Purser Smith, should they be on board ; but with the understanding that this permis- sion merely extends to this voyage of the 27th, unless, these obstacles being removed, the governor of the island may alter, as he is desirous to be able to do, his dispositions in regard to the Crescent City, without failing in the sacred duty imposed on him of maintaining tranquillity .in the island, and of not permitting his authority to be despised. The undersigned offers to the Hon. Mr. Conrad a renewed assurance of his distinguished consideration. A. OALDERON DE LA BARCA. Hon. C. M. Conrad, Secretary of State of the United States. [Translation.] Seat of Government of the Island of Cuba, Havana, October 29, 1852. Most Excellent Sir : The steamer Prometheus, which sailed from this port for New York on the 27th instant, at 4 o'clock in the after- noon, has taken out a parcel, under cover, to the Spanish consul at that port, whom 1 have directed to transmit the same to your excellency CASE OF THE BLACK WARRIOR, ETC 33 without delay, containing communications of mine, dated respectively the 22d and 27th, (this very day.) Your excellency will have seen, by these communications, all that has taken place on the occasion of the second arrival of the Crescent City, and the confidential interview I had, on the 25th, with Judge Conkling, the appointed minister to Mexico. I will then relate to your excellency the continuation of my inter- course with this diplomatic functionary, together with whatever the state of the question may suggest to me, both in regard to the conferences which have taken place here, and in relation to what your excellency has been pleased to say to me, in your polite communications of the 9th, 15th and 18th, which I received on the 27th, in order that your ex- cellency may signify to the government of the United States my honest intention to preserve the friendly relations which the latter maintains with the government of Spain, and my firm determination at the same time, not to allow any want of what is due to this nation, on account of her power, perhaps not well understood, and, above all, on account of the good faith and generosity which characterize her proceedings with other friendly countries. I told your excellency, in my communication of the 27th, aforemen- tioned, that in order to avoid the effects of any mistake in regard to the true understanding of the reasons laid down in the conferences which I had held with Mr. Conkling, I had asked him to give me a small memo- randum, without signature, recapitulating what he had stated to me in that conference ; that on receiving this document I had noticed a certain reservation in regard to the censure he had cast on the reprehensible and inexcusable conduct of Mr. Porter, captain of the " Crescent City," during the interview, and that he had likewise omitted to mention the offer he had made to ask his government, although confidentially, for the withdrawal of said Porter. Being desirous to clear away all doubt, and to leave no room for concealment, I sent to entreat the Hon. Mr. Conkling that he would have the kindness to come to see me. He did so the day before yesterday, and when I had informed him of the dif- ference I had noticed between his conversation and his written state- ment, he replied to me, that notwithstanding the want of explicitness in the latter, on those points to which I have alluded, his fixed determina- tion was to ask his government for the removal of Porter, whose con- duct he had pronounced, and still designated, as reprehensible and inex- cusable. I said to him, in return, that in order to avoid all complication and disagreement between what had been spoken and written, 1 thought it better for him to withdraw the memorandum, if there was no obsta- cle to his doing so ; and having cheerfully acceded to my proposition on his part, I proceeded to inform him, that according to what was stated in a confidential letter of your excellency of the 19th, neither Porter nor Smith would return to Havana, as it had been declared by the Ameri- can Secretary of State, whose assurances to this effect were moreover confirmed in a telegraphic despatch which was sent from Washington to Charleston on the 23d, and brought here by the captain of the Isabel. His reply to this was, that such measure would harmonize with the sys- tem of government pursued by President Fillmore; adding, "that it was 3 34 CASE OF THE BLACK WARRIOR, ETC. full time these individuals should retire into private life, as they had been the cause of sufficient mischief." Notwithstanding this, he said to me, that in order to avoid all conflict for the future, and in case — which was not a probable occurrence — the " Crescent City" whose departure from New York was announced for the 27th, should have those individuals on board, he begged that I would have the condescension to allow, for this time only, the passen- gers and the mail to land, although I should prohibit the crew, com- prising the persons in question, from landing likewise, because, in doing 50, I would not only prevent any injury being done to commerce and to the passengers, but that I would lessen the embarrassment which these occurrences were occasioning to his government. Mr. Conkling being entitled to some civility, on account of your excellency's especial recommendation, and even to my sympathy for his judicious and up- right deportment during his interviews with me, and with a view, also, of not increasing the difficulties which at this moment harass the worthy President Fillmore, I promised that his wishes should be complied with ; but I took good care to remark to him, that neither Captain Por- ter nor Purse]- Smith would be allowed to land at Havana — that my agreement to allow the mail and passengers to land would be for this occasion only, in case the government should not have had time to forward instructions in relation to them ; and that after that, I should enforce my original measures, adopted, as they have been, after a tho- rough examination of what it behooves me to do for the security of the island, and in virtue of the indisputable rights with which the authority I exercise has been invested. The Hon. Mr. Conkling evinced his appreciation of the act by many expressions of gratitude, and went away from me satisfied, and yester- day he sailed once more for his destination. In thus making your excellency minutely acquainted with what has passed, I desire, in the first instance, to show my respect for the actual government of the United States, my deference for an old and respected diplomatic functionary, who has come here, in a confidential mauner, to obtain a thorough knowledge of the disagreeable occurrences of the past, and finally to make known that if the Mail Steam Company, abu- sing my forbearance in these considerate proceedings, should again send to this place the persons who have been the cause of these lament- able evils, I shall be compelled to sustain the dignity which has been conferred upon me by her Majesty the Queen, by positively prohibit- ing the entrance into this port of the " Crescent City." God preserve you, &c. VALENTIN CANEDO. The Most Excellent Minister Plenipotentiary and Envoy Extraordinary of her Majesty in Washington. CASE OF THE BLACK WARRIOR, ETC- 35 Mr. Sharkey to the Secretary of State. [Extracts.] [No 19.] Consulate of the United States, Havana, November 8, 1852. Sir : During my absence Mr. Morland kept you advised of the con- dition of our relations with this island. Having no dispatches to reply to, I can only inform you what has occurred since my return on the 30th ultimo, which was duly announced to you. On my arrival Mr. Morland informed me that Judge Conkling, our minister to Mexico, had called here on the business of the difficulty with the steamer Cres- cent City, and that a temporary arrangement had been entered into betwen the Judge and the Captain General, by which that vessel should be permitted to land her mails and passengers and receive others, but that neither Captain Porter nor Purser Smith should be permitted to land. This arrangement, however, was understood to be but a suspen- sion of the prohibition which had existed towards that vessel. The Crescent (Jity arrived in this harbor on the 2d instant with Purser Smith on board, under the command of H. R. Davenport, esq., and was permitted to land her mails and passengers. Soon after her arrival I had the honor of an interview with the Captain General, in which his excellency stated to me the purport of the agreement with Judge Conk- ling, but said it only extended to the present visit of the ship, and that, as Purser Smith was still on board, she could not be allowed a similar privilege on her return from New Orleans, unless he could be assured that Smith should not be in her. His excellency expressed much sur- prise that the purser was still retained, after the assurances given by the Secretary of State to the Spanish minister at Washington. He stated to me that he had received a communication from the Spanish minister to this effect : that the Secretary of State had assured the min- ister, in the most positive terms, that Smith should not return on the vessel, and authorized the minister to make that statement known to the Captain General. This letter was exhibited, and that portion of it translated by my secretary. Deeming this fact one of importance, I forwarded a statement by the Crescent City, to be communicated to you by telegraph from New Orleans. I was not prepared to reply to this intelligence, and could only suggest to his excellency that probably Smith was not an officer of the government, and therefore not subjected to its control, which I afterwards learned to be true, as he was there by- contract with the owner of the vessel. I informed Captain Davenport of what had occurred, and stated to him what might be expected on his return. I cannot be positively certain whether his excellency said the ship should not enter the harbor, or only that she should hold no communication with the shore. My secretary is under the impression that he only intended to interdict communication with the shore. The difference, however, seems to be of little consequence. This affair has produced a very unpleasant state of things, and I have only to hope that the government will give it prompt attention. * * *-# * * * # # I herewith forward a copy of a letter from Mr. Morland to the com- mander of the Crescent City, and one from Mr. Morland to me, to- 36 CASE OF THE BLACK WARRIOR, ETC gether with a note from the Captain General. I had not time to pre- pare this dispatch to be forwarded via New Orleans by the Crescent City, but avail myself of the earliest opportunity which will be afforded by the Black Warrior. I have the honor to be your obedient servant, W. L. SHARKEY. To the Hon. Secretary of State of the United States. Consulate of the United States, Havana, November 1, 1852. Sir : I have to advise you that Judge Conkling, who called here on the business of the steamship " Crescent City," has come to an under- standing with the Captain General on the difficulties lately existing in relation to that ship, which is arranged so that that vessel may enter port, deliver her passengers and mails, receive others in feturn, and proceed as usual heretofore ; but that Captain Porter and William Smith, esq., shall not land here. I give you this information for your government ; and am Your most obedient servant, JNO. MORLAND, Acting Consul To the Commander of the United States Mail Steamer "Crescent City.'''' Havana, November 4, 1852. Dear Sir : In answer to your note of this morning, I have to say that I had no occasion, and therefore did not see his excellency the Captain General after the departure of the Powhatan, and therefore did not receive from him anything on the subject relative to the " Crescent City ;" but Judge Conkling informed me that he had arranged the mat- ter with the Captain General, and that the " Crescent City" was to be admitted with Captain Porter and Mr. Smith on board, who were not to land, but that the mails and passengers were. He added that it was a suspension of his former order, but named no limits. I remain yours, JNO. MORLAND. Hon. Judge Sharkey. P. S. — Judge Conkling said that the Captain General •had suggested the necessity of writing a letter, or rather that Commodore Newton should do so, to Captain Porter, to be delivered to him, explaining the arrangement, which was not done, as I understand from the harbor- master. CASE OF THE BLACK WARRIOR, ETC 37 [Translation.] Havana, November 2, 1852. [seal.] To the captain of this port I have said, under yesterday's date, the following : " In view of the friendly explanations that have been given me, when he touched at this port, by Mr. Conkling, minister plenipotentiary of the republic of the United States near Mexico, for the remote case that the steamer ' Crescent City' might still make one voyage, having on board Mr. Porter as captain, and Mr. Smith as supercargo, that I should condescend to permit the landing of her passengers and mails, I have deemed it proper to accede to his wishes, as a proof of consideration to his person and to the respectable recommendations he was the bearer of. You will, therefore, should the case referred to occur, which is not probable, allow the passengers and mails to land, but with the express prohibition that it should be done by Smith or Porter, whose conduct I have qualified as notoriously suspicious for the security of this island ; and I must add to your lordship that this concession is understood to relate only to the next voyage of the said steamer." And I communicate it to your lordship for your information, and the effects it may be useful for. God preserve your lordship manv years. VALENTIN CAfiEDO. Sefior Consul of the United States in this place. Mr. Everett to Mr. Maxwell. Department of State, Washington, November 13, 1852. Sir: Official information has been received at this department that there is a law or regulation of the island of Cuba forbidding the en- trance of any vessel into the port of Havana after nightfall, and before a certain hour in the morning ; and that it is the duty of the officers sta- tioned in the Moro oastle to fire upon any vessel attempting to enter the port in violation of this regulation or law. On the occasion of the ar- rival of the " Crescent City," on the 14th ultimo, she entered the port within the prohibited hours, notwithstanding, as is alleged, that she was hailed three times, and required to desist. The sentinels, whose particular duty it was to fire upon a vessel under these circumstances, have been imprisoned for failing to perform their duty on this occasion ; and the Governor General of the island informed Mr. Conkling, the American minister to Mexico, on his visit to the island, that he had given peremptory orders, that should an attempt again be made by the commander of the " Crescent City" to enter the port of Havana at an unlawful hour, she should be fired upon from the Moro. The President requests that you would bring these facts to the knowledge of the owners of the " Crescent City." 38 CASK OF THE BLACK WARRIOR, ETC I am also directed to inform you that the Spanish minister has com- mtnicated to the department a copy of a letter from the Governor Gen- eral of Cuba to himself, from which it appears that the suspension of the order of the Governor General, forbidding the*entrance into the port of Havana of the " Crescent City," if Lieutenant Porter or Purser Smith should be on board, was not designed by the Governor General to be a permanent suspension, as understood by Mr. Conkling, but to apply only to the then next expected arrival of that vessel. You will also be pleased to inform the owners of this,correspondence. I am, sir, &c, &c, EDWARD EVERETT. Hugh Maxwell, Esq., Collector of the Customs at New York. Mr. Everett to Mr. Calderon. Department of State, Washington, November 15, 1852. Sir : You have already, I believe, been informed that this department had reason to think that the information received by the Governor General of Cuba, relative to Purser Smith of the "Crescent City," was erroneous. To show you, in a perfectly satisfactor} r and authentic manner, that such is the fact, I take the liberty to enclose you a copy of an affidavit made by Mr. Smith, in which he disclaims, in the amplest terms, everything that has been laid to his charge. A copy of this document has been already transmitted to Mr. Barringer, to be commu- nicated to her Majest}r's government. In the mean time, as the sole objection to the abrogation of the order of his excellency the Governor General, of the 4th September, is under- stood to be the want of a personal assurance on the part of Mr. Smith that he is entirely innocent of the matters laid to his charge, I persuade myself that your excellency, by communicating this document to the Governor General, will enable him, without delay, to restore the inter- course with the island to its accustomed amicable footing. I avail myself of this occasion, sir, to renew to. you the assurance of my distinguished consideration. EDWARD EVERETT. Sefior Don A. Calderon de la Barca, fyc, Sfc., &fc Mr. Kennedy to Mr. Everett. Navy Department, November 16, 1852. Sir : In compliance with the request contained in your communica- tion of 13th instant, to be furnished with a copy of the statement of Captain Porter, of the United States mail steamer Crescent City, rela- CASE OF EHE BLACK WARRIOR, ETC 39 tive to his conduct in the recent refusal of the Spanish authorities of the island of Cuba to permit that vessel to land her passengers or mail at the port of Havana, I have the honor to transmit herewith an additional copy of said statement, it being the third which has been furnished by this department. I have the honor to be, sir, with high respect, &c, JOHN P. KENNEDY. Hon. Edw. Everett, Secretary of State. Saturday, October 24, 1852. Sir : Agreeably to your order, "that I should communicate to you in writing a statement of the events which lately took place in Havana in relation to the steamship Crescent City," I have^the honor to give herein a detailed statement of facts as they occurred : I sailed from New York on the 27th of August for New Orleans, via the Havana, anticipating no difficulty of any kind, and arrived in Havana on the 3d of September ; was boarded by the health officer, custom-house officer, and police officers, who examined the passports, and the ship admitted all the privileges of the port ; two hours after I anchored, and while asleep in my cabin, one of the police officers entered my room, and informed me that it was the Captain General's order that Mr. Smith, purser of the ship, should not be permitted to go on shore. Not being perfectly awake at the time, I did not ask the reason why Mr. Smith could not go on shore, but simply replied that I would attend to it. I accordingly gave Mr. Smith an order not to go on shore, intending to obtain further information on the subject ; but the ship's sailing soon after, drove the matter from my mind. On my arrival at New Orleans, I saw an extract from the " Diario de la Marina," (the government paper,) accusing Mr. Smith of writing calumnies against the Captain General, and accusing him of having written them over his own signature. This explained to me the cause of Mr. Smith's not being permitted to go on shore. I returned to Havana on the 14th of September, and after being at anchor for a short time, the captain of the port came alongside in the health boat, and after the usual courtesies were passed, the captain of the port desired to see our shipping articles, which I ordered Mr. Smith to bring- to me : after looking down the list, the captain of the port came to Mr. Smith's name, and in rather an irritable manner ordered the person to be kept on board the ship. I asked of what particular offence he had been guilty. He replied, in a passionate manner, that he could not go on shore. I informed him that the order should be obeyed, and asked him it he had any further commands. He said* he would like to see Mr. Smith; the latter person was alongside of me at the time, and I pointed him out, when the captain of the port, in a great state of excitement, not at all called for by the occasion, called up the police boat, and in a loud voice ordered the police officer to " mark Mr. Smith," meaning, to notice him well. I asked if he desired anything further with Mr. 40 CASE OF THE BLACK WARRIOR, ETC- Smith, and on receiving a negative reply, I retired up the ship* side, somewhat astonished at the injustice and want of courtesy of Spanish officials. One hour after this occurred, I received a communication from the house of Drake, enclosing an order from Martin Galliano, the political secretary, informing me that no vessel belonging to the com- pany would be permitted to enter the port of Havana with Mr. Smith on board, or any other person who made use of his position in the line to write abusive articles against the Captain General, and informing me, at the same time, that a police officer would be detailed on board the " Crescent City" to watch over Mr. Smith. I immediately wrote to Mr. Drake, and assured him, on the honor of an officer, that Mr. Smith had never written or composed any article against the Captain General in the newspapers of the United States. I informed them, at the same time, that under the circumstances of the case, I would not permit any police officer to remain on board the ship for the purpose of taking charge of any officer ; that I intended to sail at 4 o'clock, and that they would be held responsible if they attempted to prevent me. I sailed at the usual hour without molestation, and concluded that my disavowal had been satisfactory. On my return to New York I laid the matter before the company, assuring them at the same time that Mr. Smith was perfectly innocent of the accusation, and explained to them how the charge against Mr. Smith originated, viz : from the accu- sation of the correspondent of the " Diario de la Marina." I beg leave to state here that Mr. Smith is an old man, sixty years of age, and is retained in his position more owing to his great integrity of character, than from any abilities he may possess for the arduous and intricate duties of his station. It was at my solicitation that he was originally ordered to the " Crescent City," and I desired to have him from the fact that he attended solely to his own duties, meddling with nothing which did not relate to them, and assumed no responsibility without consulting me. I sailed again from New York on the 27th September, and arrived at Havana on the evening of the 3d of October ; it was blowing a gale of wind at the time ; and as I knew no boat could come far enough outside to us to get a pilot from, I made no signal for one, but stood into the harbor. Near the mouth of the harbor the pilot was waiting for us ; I ran close to him, slowed the engine, and hove him a rope, but, owing to the high sea, he failed to get hold of it. Close to the pilot boat, and fast to the buoy, was the health boat, inside of which I recognised the captain of* the port, who made signal to me to back out, which signal I paid no attention to. As I passed him he ordered me " to stop the ship," which I refused to do, as it was a very danger- ous place to stop a ship in, and within fifty feet of a reef of rocks on our lee-beam. I accordingly proceeded to my usual anchorage within. I was fol- lowed by the captain of the port ; when he came alongside, he de- manded why I did not stop the ship at the mouth of the harbor when he ordered me. I replied, that it was not a proper place to stop a ship in, especially a steamer with a single engine. The explanation seemed satisfactory. He then demanded to see the ship's articles ; and on seeing the name of Mr. Smith, he told me to proceed to sea at once, CASE OF THE BLACK WARRIOR, ETC 41 by the Captain General's order. I asked him if he had not received my letter disavowing the charge made against Mr. Smith ; he said yes, that the letter had been received, but that I must go to sea at once. I told him I must make my protest to the American consul, and I refused to lift my anchor until I had done so. After some discussion, the captain of the port concluded to take my protest to the Captain General; but it was returned to me again, with a message that it must be sent through the consul. I accordingly sent it to the consul by our agent, who was permitted to come alongside to get the communication. After sunset, the captain of the port again came alongside, and informed me that the consul was some distance out of town, that the Captain General had not time to answer my communication that night, and. that I must proceed to sea at once. I represented to him the great responsibility of so treating a ship on such frivolous charges, pointed out to him the breach of faith with the passengers who came to Havana with pass- ports from the Spanish consul at New York, and also the inconvenience to the community from the non-deliverance of the mails. I received no satisfaction on these points. My mails and passengers were refused ; and finding no hopes of communicating with the consul, I proceeded to sea, with every appearance of a gale of wind, and blowing so fresh at the time in the harbor that I had to cut the cable by which the vessel was secured to the buoy, as thejr offered me no assistance to cast it off. A pilot was offered me, but I declined it. Previous to my sailing from New Orleans, I received instructions from the company's agent, by telegraph, to proceed to Havana and offer the mails; and if they were refused, to extend my protest and return to New York without delay. I accordingly proceeded to Havana, where I arrived on the 14th of October, at daylight, was permitted to enter, and anchored in my usual place. The captain of the port came alongside, and on finding Mr. Smith on board, informed me that the vessel was " incommuni- cado ; " that is, not allowed communication ; that we would not be turned out of the harbor, but that no intercourse of any kind would be allowed. I requested permission to send a protest to the consul, which was positively refused. We were then surrounded by guard-boats, and I ordered the steam to be let off, intending to remain some time to see what turn matters would take. Seeing that I had no intention of going to sea, two guard-boats were detailed from a frigate, preventing the approach of any boats towards the Crescent City. At 9 o'clock, Mr. Morales, of the house of Drake & Co., came alongside. I informed him that I had letters for him from the company, which ought to satisfy the Spanish authorities, but that I was not to deliver them. He asked me if I had made an explanation. I told him yes, and assured him that Mr. Smith was perfectly innocent of any offence, of which opinion he was himself. He then suggested that Mr. Smith should write direct to the Captain General, denying the charges against him. He said no official communication had been made to the Spanish government. I told him that I had made an official communication, which had received no attention. He said my communications were not considered official, but that from Mr. Smith would be. I told him that my instructions were to present a protest, which was 42 CASE OF THE BLACK WARRIOR, ETC. all I desired to do, and that I thought the protest would satisfy them on all points, as I had stated plainly all the grounds of complaint, and again disavowed the offence on Mr. Smith's account, or rather referred in it to my two former disavowals. This Mr. Morales seemed satis- fied with, and proceeded to the shore, where, through his influence, the American consul was permitted to come alongside, in charge of the captain of the port, accompanied by an interpreter. I presented my protest to him in person, and he advised me to go to sea at once, as nothing more could be done with the authorities. I accordingly got under way at once, and proceeded to sea ; hoisted the American flag at the fore, and fired a gun as I passed the Moro. These are the exact circumstances connected with the matter. Of course, sir, I cannot describe the feelings or the expression of the dif- ferent parties, which add weight to circumstances of this kind. Suf- fice it to say that the conduct of the Spanish authorities was unfriendly in the extreme. The conduct of officials, it is true, was more cour- teous towards the last ; but it could not have been otherwise with people boasting of anything like civilization, for my conduct towards them throughout the whole difficult}', until I got under way, was courteous and respectful in the extreme, as I determined to give them no cause of complaint. I have herein confined myself to the simple facts ; but will take this occasion to say that I have always been instructed by the company to cultivate the most friendly feelings with the Spanish authorities; and I take pleasure in saying that I believe, up to the present time, I have succeeded in accomplishing the task imposed on me ; for, in the trying and exciting times of the Lopez expedition, it required almost super- human patience to submit to all their uncalled-for exactions. I have the honor to remain, very respectfully, your obedient servant, DAVID D. PORTER, Lieutenant U. S. Navy. Hon. J. P. Kennedy, Secretary of the Navy. [Translation.] Havana, September^, 1852. An individual named William Smith, who it appears is employed on board the steamship " Crescent City," has published, on his last voyage to New York, the most gross calumnies against the government of this island, and has taken advantage of the frank hospitality that is ex- tended to all foreigners, to give the greater appearance of truth to his falsehoods. This conduct, which the whole world will be able to quality with its true colors, has attracted very seriously the attention of his excellency the Governor Captain General, whose elevated position places him so high above all such vile attacks against his administration, that he will not stoop for a moment to refute them ; but he considers it a duty to make the author feel that the government will not permit such acts to be committed with impunity. CASE OF THE BLACK WARRIOR, ETC 43 In consequence thereof he has given orders that, on the instant arrival of the Crescent City in this port, there will be placed on board an agent of the police, with the exclusive charge of Mr. Smith, to pre- vent him from leaving the ship ; and the order of his excellency is transmitted to you, prohibiting in future the return of this individual in any of the company's ships, or any other person who will lend himself to abuse the frankness which the Spanish authorities offer in the ports of the island. The fact of such persons being on board will be suffi- cient to prevent the entrance of the vessel into the harbor — no matter how much the interests of the company may be affected or injured by the proceeding. They have it in their power to prevent abuses b} r their subordinates ; their honor and their interests should make- them withdraw their confi- dence from persons who compromise them by their conduct. M. GALLIANO. New York, September 19, 1852. Sir : I enclose you a communication I received from Messrs. Drake and company. I translate it from the original. You will see that Mr. Smith . is accused of writing injurious reports against the Spanish government. I assure you that Mr. Smith has never written a line against them ; and the whole thing has originated in the correspondent of the "Diario de la Marina," a Spanish paper, in which Mr. Smith's name is put to the letter of somebody else. I enclose you also my letter in reply to the communication and re- fusing to have a police officer on board to take charge of any of the company's officers. They acted be3^ond their authority, aud they know it. The}' have once or twice attempted arbitrary measures with me, which I consid- ered it best for the interests of the company to prevent by a firm and decided refusal to submit ; and I never had cause to regret the course I pursued, as I have felt the benefit of it in not being subjected to petty annoyances which have been put upon other ships. Never having had any instructions from the company on the subject I acted as my reason dictated. Very respectfully, &c, DAVID D. PORTER, Lieutenant TJ. S. Navy. M. O. Roberts, Esq., Agent U. S. Mail Steamship Company. Office of the U. S. Mail Steamship Company, New York, September 27, 1852. Dear Sir : Your letter of the 19th inst., enclosing a communication from Messrs. Drake & Co., with a manifesto from the authorities of Havana, translated by yourself, and a copy of your replies thereto, was duly received. 44 CASE OF THE BLACK WARRIOR, ETC Being satisfied that Mr. Smith, purser of the Crescent City, has done nothing which ought to subject him to censure, this company approves fully of your course in relation to the matter while at Havana, and of the tenor of your reply, through Messrs. Drake & Co., to the Cuban authorities. Mr. Smith, so far as I can ascertain, has written nothing for any newspapers here or elsewhere, nor communicated anything at any time that ought to give offence to the Spanish authorities ; and the allegation that he has done so I am satisfied is a mistake or a misrepresentation. He ought not to be held responsible for the newspaper publications, which are generally the repetitions of what the news collectors obtain from other sources, with such additions and comments as they choose to make, and which are entirely beyond the control of this company or of any of its agents or officers. Mr. Smith is one of our most quiet, inoffensive, and faithful officers ; and we ought not to consent to remove or discharge him when satisfied that he is innocent of any attempt to interfere with the Cuban govern- ment or to misrepresent it. It has always been the policy of this company to avoid giving any offence by any interference in the affairs of other governments. They have uniformly so instructed all their commanders and officers of their ships, and I am happy to believe that such instructions have been most satisfactorily carried out. Employed by the government of the United States in the transporta- tion of its mails, it has been felt to be the duty of the company, and of the commanders of their ships, while they were careful to protect their agents and employes in their persons or property from undeserved sus- picion, to impress upon them the necessity of avoiding any interference in the affairs of the government of Cuba or the authorities of Havana, or of affording any ground of complaint on their part. This I take the occasion to repeat for the government of your own course and for that of the officers and those under your command. Very respectfully, yours, &c, M. O. ROBERTS. Captain D. D. Porter, Commanding Steamship Crescent City. United States of America, Southern District of New York. I, William Smith, purser of the United States mail steamship Cres- cent City, being duly sworn, depose and say that the allegation con- tained in a certain order or manifesto, signed "M. Galliano," an officer of the government of the island of Cuba, and dated at Havana, the 4th day of September, 1852, and repeated in the official paper at Havana, that I had " published the most gross calumnies against the government of said island," and the further allegation, which I under- stand has been made unofficially to the government of the United States, that I had held communication with disaffected persons in the port*of Havana, in the island of Cuba, and had been the bearer of CASE OF THE BLACK WARRIOR, ETC. 45 • letters or messages to and from such persons, are all utterly without foundation. I have never written or published anything against the government of the said island of Cuba; nor have I ever carried letters or messages to and from disaffected persons in said island, or had any communication with such persons, or in any manner interfered with the affairs of the said island, or the proceedings of its authorities. I have confined myself strictly to the discharge of the duties of purser of the ship, and have demeaned myself accordingly. Furthermore, it has been the express command of Capt. Porter, and of the Mail Steam- ship Company, that no officer or person employed on the ships should be allowed to carry letters outside of the mail, other than those belong- ing to the ship's business ; and when letters have been sent on the steamer after the mails have been closed and received on board, they have been placed in the charge of the purser, and in all cases delivered to the postmaster in Havana. I also further depose and say, that I have never been in any manner connected with any association or ex- pedition for hostile purposes, in relation to the island of Cuba, or for annoying, assisting, or interfering with its authorities. WILLIAM SMITH. Sworn to the 21st day of October, 1852, before me. JOSEPH BRIDGHAM, U. S. Commissioner Southern Dist. of New York. New York, October 27, 1852. Sir : I have the honor to enclose to you the communication from Mr. Galliano, the letter I received from the company on my last trip to Havana, and a copy of an affidavit (the original is sent to the Hon. Secretary of State) made by Mr. Smith, denying every species of charge brought against him. I also enclose you two articles cut from the Herald, which are the only articles relating to Cuba to be found in the papers at that time. They are evidently the articles alluded to by the correspondent of the government paper, and it will be seen at once that one is an editorial notice, and the other a letter from some one in the Havana. I have the honor to remain, very respectfully, &c, DAVID D. PORTER, Lieut. V. S. Navy. Hon. J. P. Kennedy, Secretary of the Navy. Mr. Calderon to Mr. Everett. [Translation.] • Washington, November 17, 1852. The undersigned has had the honor to receive the communication addressed to him by the Secretary of State under date the 15th inst., accompanied by a copy of the deposition, under oath, of Purser Wil- 46 CASE OF THE BLACK WARRIOR, ETC. liam Smith ; arid will transmit a copy of both documents to the Cap- tain General of Cuba by the next opportunity, that of the steamer Ysabel, which will start from Charleston on the 22d instant. The undersigned begs the honorable Edward Everett to accept the assurances of his most distinguished consideration. A. CALDERON DE LA BARCA. Hon. Edward Everett, &c, &c, &c. Mr. Sharkey to Mr. Everett. [No. 20.] Consulate of the United States, Havana, November 17, 1852. Sills. : Since my dispatch No. 19, of the 8th inst., I have to inform you that the steamer Crescent City, from New Orleans, arrived in this port yesterda\\ Notwithstanding the previous determination of the authorities here that she should hold no communication with the shore, the order was again suspended, and free communication was allowed her. The captain of the port, however, informed Capt. Davenport that she would positively be excluded on her return from New York, if Purser Smith should be on board. In addition to this, the Captain General has made a written communication to the same effect to the house of Drake & Co., the consignees, a translated copy of which I herewith forward. A copy of that communication was also handed to Capt. Davenport, as I understand. I must presume this order will be enforced. It is hoped that prompt attention will be given to this matter ; and, if I may be allowed to make a suggestion, it seems to me that the most decisive policy is required with this people, if we wish to avoid like difSculties hereafter. There is no abatement in the ex- citement which prevails here since my last dispatch. On the contrary, late events seem to have increased it. The condition of things is quite unsettled, and commerce much depressed in consequence of it. I am yet without advices from the government ; and it is proper for me to say, that I have made no efforts to induce the Captain General to recede from his position in regard to the Crescent City, as I saw nothing that could justly call for such intercession on my part. I have the honor to be, with great respect, vour obedient servant, WM. L. SHARKEY. Hon. Edward Everett, Secretary of State of the United States. [Translation.] Political Secretary's Office, 1st Section. Havana, November 16, 1852. Notwithstanding that there remains in full force aqd vigor the order of his excellency the Governor Captain General, which I communi- cated to you on the 4th day of September last, to the effect that the return to this island of Mr. William Smith, an employe of the Ameri- CASE OF THE BLACK WARRIOR, ETC. 47 can steamer Crescent City, and the entrance of this vessel in the port, should she convey him, was forbidden, as a doubtful interpretation might be given to the special concession that his excellency has made on the last voyage of said vessel to New Orleans, and on that of her return to this port, which she has to-day effected — a concession founded on special reasons, of which his excellency the • minister plenipotentiary of her Majesty in Washington has knowledge — his excellency instructs me to say to you that, in future, the order afore- said will be enforced ; to the end that, being informed, as you now are, of this particular, you make it known to whom it may concern, and avoid that, in consequence of a bad understanding, third persons be injured. God preserve vou manv vears. MARTIN GALLIANO. Messrs. Drake & Co., Consignees of the American Steamer Crescent. City. Mr. Sharkey to the Secretary of Slate. [By telegraph.— Dated Havana, Nov. 17, 1852; received at Washington Nov. 27, 1852.] To Honorable Secretary of State : The steamer Crescent City was permitted to have free intercourse with the shore, but will be positively excluded on her return from New York. An order to that effect has been given to Captain Davenport by the captain of the port ; and also a written notice to the consignees from the Captain General. W. L. SHARKEY, Consul United States. Mr. Everett to Mr. Sharkey. [No. 18.] Department of State, Washington, November 30, 1852. Sir : Your several dispatches to No. 20 have been duly received. You will have derived from public sources of information a knowledge of passing events. It has been a matter of extreme regret to the President that the com- mercial intercourse between the island of Cuba and the United States should be interrupted by a misunderstanding like that which at present exists. The President does not question the right of the Captain Gen- eral to prohibit the entrance into the island of any person whose pres- ence he may think dangerous. That right, of course, ought to be ex- ercised on reasonable grounds. Tn the present case the Governor General seems to have acte'd on misinformation ; the purser of the "Crescent City" having made affidavit that he is entirely innocent of the matters laid to his charge. I placed a copy of this affidavit in the 48 CASE OF THB BLACK WARRIOR, ETC hands of Mr. Calderon, the Spanish minister here, and it was for- warded by him to the Captain General by the Isabel steamer, which sailed on the 20th. If it is true, as we have been informed, that the Governor General has offered to revoke his order of the 4th of September relative to Par- ser Smith, provided he would disclaim the authorship of the calumni- ous articles laid to his charge, this affidavit would seem entirely to ful- fil that condition. Mr. Calderon shares this opinion ; and I cannot but think, that in furnishing the Governor General with a copy of the affi- davit alluded to, this government has afforded to him ample ground for rescinding the above-mentioned order without discredit ; in fact, that justice requires him to do so. With respect to the refusal to permit passengers or the mail to be landed from any vessel having Purser Smith on board, or even to per- mit it to enter the harbor, the President considers that, the Captain General has gone far beyond any necessity of the case, and has conse- quently taken a step of which this government has a right to complain. It wears the aspect of a purely vindictive measure, inflicting an injury on parties in no degree implicated in the supposed offence. The Gov- ernor General would be authorized by the law of nations to forbid the landing of the passengers and the mails from the United States if he thought them dangerous to the public safety of the island ; but that he entertains no such apprehension is sufficiently apparent from the fact that this prohibition is extended to no other steamer, and has even been repeatedly relaxed in favor of the vessel having Purser Smith on board. The President has accordingly felt it his duty to direct our minister at Madrid to address an earnest remonstrance to the government of her Catholic Majesty, on the subject of an interruption of the commercial intercourse between the island of Cuba and the United States, for a reason so entirely inadequate ; and he entertains no doubt that due re- gard will be paid by the government of her Catholic Majesty to these representations. The President strongly disapproves the course of the steamer com- pany in persisting in sending a person in a mail steamer whose pres- ence they are assured will prevent the mails from being received. He considers this course unwise in itself, and calculated only to embarrass the government in the discharge of its duties. An order has accord- ingly been given to the postmaster of New York not to furnish the mails to be carried by any steamer subject to this prohibition. We are quite aware, of course, that no diplomatic relations exist be- tween yourself and the Captain General. As you have, however, occasional opportunities of informal conference with him, you are at liberty to make any use of the information contained in this letter which you may think calculated to remove the existing inconveniences. I am, sir, &c, EDWARD EVERETT. Wm. L. Sharkey, Esq. United States Consul, Havana. CASE OF THE BLACK WARRIOR, ETC. 49 Mr. Sharkey to Mr. Everett. [Extract.] Consulate of the United States, Havana, December 1, 1852. Sir : Being without dispatches to reply to, I have only to inform you of events that have transpired since my dispatch of the 17th ultimo. The difficulty which heretofore existed in reference to the steamer Crescent City seems to be ended. The Captain General has issued an order, founded on dispatches received by him from the Spanish minis- ter at Washington, that all obstacles in the way of her landing have been removed. With great respect, 3 T our obedient servant, W. L. SHARKEY. Hon. Edward Everett, Secretary of State. Mr. Everett to Mr. Barringer. [No. 66.~\ Department of State, Washington, December 4, 1852. Sir : I transmit herewith a copy of a note addressed by me, a short time since, to the Spanish minister here, enclosing a copy of the affi- davit of Purser Smith. I also transmit, for your information, a copy of a letter to Mr. Sharke}^, consul of the United States at Havana. I have the satisfaction to inform you that telegraphic messages were received last evening, from Baltimore and New York, conveying the in- formation that the affidavit of Purser Smith had been deemed satisfac- tory by the Captain General of Cuba, and that he had withdrawn the order prohibiting passengers and the mail to be landed from any vessel having him on board. The President recognises with pleasure this proof of the desire of the Captain General to relieve the commercial intercourse between Cuba and the United States from the embarrassment growing out of this unfortunate affair. While the President does full justice to the conciliatory temper mani- fested by the Captain General in .withdrawing the prohibition, and is also duly sensible to the liberal treatment extended generally b}^ the Captain General to the mail steamers of the United States, he remains of the opinion originally expressed in the dispatch of Mr. Secretaiy Conrad of the 28th of October, that the course at first pursued by the Captain General in this unpleasant affair was matter of just complaint on the part of this government. In your communications with the government of her Catholic Majes- ty, } T ou will not fail to impress them with a due sense' of the firmness and good faith with which the President has resisted the spirit of un- lawful adventure against the island of Cuba. As a striking proof of 4 50 CASE OF THE BLACK WARRIOR, ETC this, I enclose you a copy of a private letter reeently addressed by him to the collector of New York. T send it, for convenience, in a printed form. 1 am, sir, respectfully, 5'our obedient servant, EDWARD EVERETT. D. M. Barringer, Esq., &fc, fyc, Madrid. Washington, November 12, 1852. Your note of yesterday came to hand this morning, in which you state a conversation you have had with Mr. George Law, from which you learned that the " Crescent City will go to Cuba and enter the port of Havana in defiance of the Spanish authority ; and, if fired upon, she will be surrendered, and that then he and others will immediately com- mence hostilities against the island." You say, also, that " he desires to know whether he is right in persisting in the pursuit of his lawful busi- ness ; and that if the government shall tell him he must not go, he will not go. If, however, the government says nothing against his going, he will infer he has a right to go." You say, also, that " he professes to be friendly to me and my administration." Of the sincerity of this latter profession, one can best judge by reading his letter of the 9th, published in the New York Herald of the 10th instant. But, in regard to the chief matters of your letter, permit me to say, that, in the first place, I do not admit the right of Mr. Law, or any other citizen, to threaten a war on his own account, for the purpose of seek- ing redress for real or imaginary injuries, and then to call upon the gov- ernment to say whether it approves or disapproves of such conduct, and assume its approbation unless the act is forbidden. The Constitu- tion of the United States has vested in Congress alone the power of de- claring war, and neither the Executive branch of the government nor Mr. Law has any right to usurp that power by commencing a war with- out its authority ; and if he shall attempt it, it will be my duty, as it is my determination, to exert all the power confided to the Executive government by the Constitution and laws to prevent it. I am resolved, at every hazard, to maintain our rights in this controversy as against Spain, and I am equally resolved that no act of our own citizens shall be permitted to place this government in the wrong. Mr. Law has an undoubted right to pursue his lawful business; but when a question is raised between this goveanment and a foreign nation as to whether the business which he pursues is lawful, or pursued in a lawful manner, the decision of that question belongs to the two govern- ments, and not to him. If the object be to assert his right to enter the port of Havana with such persons as he may choose to select, in de- fiance of the laws and government of Spain, he has certainly done enough to present that question for the decision of the governments of Spain and the United States ; and the negotiation has already com- menced, and our rights, as we understand them, have been asserted, and as I said before will be maintained. But the act of this government can- not be controlled by the interference of any individual, and it is entirely CASE OF THE BLACK WARRIOR, ETC 51 unnecessary that Mr. Law should repeat these attempts for the purpose of settling this controversy ; and if he wilfully does so, and in so doing violates the laws of a foreign nation within its own jurisdiction, and thereby loses or forfeits his vessel, he can expect no indemnity for such an act of folly from this government. We regulate the terms and conditions upon which all foreign vessels shall enter our ports, and we fix the penalties for a violation of our laws, and the right to do so we shall never suffer to be questioned by foreign- ers, and we do not question theirs to do the same thing. He must wait the result of the negotiations between the two governments. This is a question not to be settled between him and Cuba, nor even between the United States and Cuba, but between the United States and Spain, which alone is responsible for the conduct of the Governor of Cuba. I write in some haste, as the mail is closing ; but you are at liberty to make known the contents of this letter to Mr. Law, and to inform him that as a good citizen I presume he will not attempt any violation of our neutrality laws by attacking Cuba. I am truly yours, MILLARD FILLMORE. Hon. Hugh Maxwell, New York city. Mr. Calderon to Mr. Everett. [Translation.] Legation of Spain, Washington, December 10, 1852. The undersigned transmitted to his excellency the Captain General of Cuba a copy of the communication which, under date of the 15th ultimo, the honorable Secretary of State did him the honor of addressing to him when he enclosed to him the affidavit or sworn declaration of Mr. William Smith, of which he also sent a copy to his excellency. General Cafiedo, in his reply of the 30th of the same month, which the undersigned received the day before yesterday, says to him, in sub- stance, that although, on his part, no step was taken to obtain this declaration from Mr. Smith, nevertheless, in view of the explicit terms in which it is couched, and in deferential consideration of the authority imparted to it by the fact of its having been communicated to the un- dersigned by the Hon. Edward Everett, he cheerfully accepts this necessary satisfaction, and ffeems it sufficient to enable him to direct, as he did the same day direct, that the Crescent City should be allowed to enter the port of Havana, and that the consequent permission to land should be given to Mr. Smith. The Captain General, in requesting the undersigned to convey this information to the government of the United States, which he now does, adds that he congratulates himself on the circumstance, that thus will be contradicted the insulting calumnies and false statements which some persons, availing themselves of in the name of Mr. Smith, have spread with the perverse design of blackening his character, and at the same time fomenting tumult and discord. His excellency trusts, above 52 CASE OF THE BLACK WARRIOR. ETC. all, that not only the government of the United States, but all others, will be persuaded that, although he is firmly resolved to discharge the sacred and imperative duty of preserving at every cost the tranquillity nnd integrity of the territory intrusted to his care, and of maintaining intact the national honor, he is also ever animated by a lively wish to cherish the best relations with all the neighboring States with which her Catholic Majesty is at peace, and to manifest all ihe deference due to their governments. The undersigned avails himself of the occasion to renew to the honorable Edward Everett the assurance of his very distinguished consideration. A. CALDERON DE LA BARCA. Mr. Barringer to Mr. Everett. [No. 116. | Legation of the United States, Madrid, December ]4, 1852. Sir : Immediately after the receipt of dispatch No. 64, of the 28th October ultimo, from the Department of State, concerning the affair of the Crescent City, I brought the subject of its contents to the attention of her Majesty's government in an official communication. Believing that the gravity ot" the demand made, and the tenor of the instructions given, required such a course, this communication was an exact copy of that dispatch, with the necessary change of address, and the omis- sion of the references to dispatches and other documents mentioned in the first part of the dispatch. It was also accompanied by a copy of the affidavit of Mr. Smith, purser of the Crescent City, denying in the fullest manner every charge against him by the authorities at Havana. Having failed for several days to receive an answer, although urged in personal interviews, both with the Minister of Foreign Affairs and Un- der Secretary of State, I deemed it my duty to address a note to the former under date of the 7th instant, a copy of which is herewith en- closed. The important political events referred to in my dispatch No. 115, which have since resulted in a dissolution of the ministry, com- bined with the proverbial disposition of the Spanish government to pro- crastinate the dispatch of public business, doubtless contributed to this delay. Allowance was also duly made for the delicacy and probable difficulty of the subject with her Majesty's government. On the 11th instant I received the answer, under date^»f the 8th, to the demand of the United States, and on the 12th I communicated my reply to the same. Copies of these notes are herewith transmitted. It will be seen, I deeply regret to say, that the just satisfaction de- manded by the government of the United States from that of her Catho- lic Majesty has been refused by the latter, and, instead of the " prompt and decided disapprobation " anticipated by the President from her Majesty's government, the latter has deliberately and emphatically ap- proved the conduct of the Captain General of Cuba, and it is manifest that, for the present at least, it is their purpose to persist in the same line of policy, whatever may be the consequences. I believe the sub- CASE OF THE BLACK WARRIOR, ETC 53 ject has been fully and maturely considered by her Majesty's govern- ment, and that instructions have been forwarded to the Captain Gen- eral of Cuba not to change the system pursued by him in reference to intercourse with the United States. The policy of the Spanish govern- ment, as far as the same can be carried out without an actual interrup- tion of peaceful relations, will be that of non-intercourse between our people and the island of Cuba. This purpose, if not frustrated, will be gradually but surely adopted, or all commercial and social intercourse will be only tolerated on such conditions as we cannot honorably accede or submit to. The difficulty of adjusting all commercial questions with a people and government so wedded to antiquated and obsolete ideas may well be inferred from the recent correspondence of this legation and her Majesty's govern- ment on the subject of the refusal of the latter to assimilate the flags of the two nations under the royal decree of January last, and thereby place American shipping in the peninsula and adjacent islands on a footing with that of other nations. The tone assumed, and the policy pursued towards the United States by her Majesty's government in ref- erence to the affair of the Crescent City, and other questions between the two countries, I think may be fairly attributed, not only to then de- votion to ancient prejudices and notions of government, and their want of a true knowledge of our people and institutions, but to expectations of foreign aid for the security of the island of Cuba to the Spanish crown in the event of a rupture with the United States. I have heretofore referred to this subject, of such interest to the gov- ernment and people of the United States, as must necessarily be every- thing connected with the ultimate destiny of that island. They rely with much hope, and even confidence, on the assistance of both England and France, especially the latter, in such a contingency, to preserve and secure that island to their dominion. On this subject I have no official and authentic information to give the department; but, judging from that derived from various sources, in conversation with persons likely to be informed on such a subject, I state it as my conviction that, in regard to England, matters remain as heretofore represented by me, to wit: that instructions are given to the British naval forces in the Gulf of Mexico to assist the Cuban authorities whenever they may request such aid in preventing, by force if necessary, the landing of any armed and illegal expedition, such as that of Lopez, against the island, and that such instructions do not embrace any other contingency. Indeed, I be- lieve the relations between Spain and England are not so intimate and . cordial as they were a year since, but that French influence is now at this court in the ascendant. Spain has long been the theatre of diplo- matic rivalry, and the contested ground of ambition for political ascend- ancy between England and France. It is undoubtedly true that at present the government of her Majesty is on the best and most intimate terms with that of the emperor of the French; and it is now said that the latter has not only given assurances of aid, if required, similar to those I have referred to in the case of Eng- land, but that secret guarantees have been made to Spain for the secu- rity of her West India possessions in every contingency, and by the employment of the land and naval forces of his imperial Majesty, if ne- 64 CASE OF THE BLACK WARRIOR, ETC. cessary. I feel it my duty to give these rumors only for what they are worth, and for the purpose of drawing the attention of our government to the subject. I may be allowed to state in this connexion that there is at present an increase of the naval forces both of England and France in the Gulf of Mexico, and that reinforcements, both naval and military, have re- cently been sent from Spain to the island of Cuba. The Spanish government undoubtedly have serious apprehensions for the fate of the island, either from internal disaffection, foreign inva- sion, or a rupture with the United States, or all combined ; and every effort to the last extent of their power will be made to preserve to their dominion this most cherished treasure of their once immense posses- sions in the New World. It is said that, as a last resort, to prevent its falling into the power of the United States, or becoming a free and independent State by revolution, secret orders have been issued to emancipate the slaves and place arms in their hands, for the conquest and maintenance of their own rule and authority in the island, and that is the true reason of the recent increase of the slave trade in that island in violation of public treaties. It is repeated as a motto in the public press of Spain that Cuba must always be either " Spanish or African." What the future may bring forth it is impossible to foresee, but this is certainly the prevalent state of feeling and determination in Spain in reference to the aspect of affairs, and the final destiny of the island of Cuba. I have referred to these considerations in connexion with the subject of this dispatch, not because I do not trust and believe that the affair of the Crescent City may still by some means be amicably and satis- factorily adjusted, but because I feel bound to say that if the course now complained of and the policy now pursued by Spain towards the United States, and so much deprecated by the latter, in reference to their intercourse and commerce with the island of Cuba, be persisted in by the former, the present peaceful relations cannot, in all proba- bility, be continued between the two nations, and that we should be prepared for any event. I have the honor to acknowledge the receipt of your dispatch No. 65, of the I3th ultimo, with its enclosures, and beg to remain, with sentiments of the highest respect, sir, your obedient servant, D. M. BARRINGER. Hon. Edward Everett, Secretary of Stale. Legation of the United States, Madrid, December 7, 1852. Sir : On the 24th ultimo I had the honor to address your excellency on the subject of the affair of the "Crescent City." The nature of that communication, made under express instructions from my government, was such as to require an early reply. I am fully aware that recent events of importance at this capital have necessarily claimed much of your excellency's attention, as a minister of the crown ; but as so much CASE OF THE BLACK WARRIOR, ETC 55 time has now elapsed since the date of that communication, I find it my duty to call the attention of her Majesty's government to the same, and to express my earnest wishes for a reply at the earliest period. I avail myself of this occasion to renew to your excellency the assurance of my most distinguished consideration. Your obedient servant, D. M. BARRINGER. His Excellency Don Manuel Bertram de Lis, Minister of State. [Translation.] First Department of the Office of State, Palace, December 8, 1852. Sir: I have received your excellency's note of the 24th November last, in which, by order of the President of the United States, you com- plain that the entrance to the port of Havana had been denied to the mail steamship Crescent City. Your excellency will permit me to express the surprise which this reclamation has caused me, when, by communications from the minister of her Majesty at Washington, I had received information that the gov- ernment of the United States had recognized the perfect right and sufficient motive with which the Governor Captain General of Cuba proceeded in this matter, and had taken measures, in consequence, that Lieutenant Porter, who had provoked that action by his imprudent conduct, should leave the command of the Crescent City. But since my hope has been disappointed, and your excellency has thought it your duty to present this reclamation, I find myself com- pelled to answer it. Your excellency recognises, as you could not do less than recognise, the perfect right which every nation has of estab- lishing the conditions which it may judge proper lor the admission into its ports of foreign vessels, and, consequently, there is no need of dis- cussion on this point. But your excellency says that these conditions ought not to be incompatible with received usages in commercial rela- tions among the nations. I agree, without difficulty, that this is so, and so ought to be, in ordinary circumstances ; but I regret to have to remind your excellency, that the actual situation of the island of Cuba, far from being able to be considered as a normal situation, is com- pletely exceptional, (and not, certainly, by any fault of the Spanish gov- ernment,) and that, in such a situation, the first duty of the authorities is to provide against dangers ; and it would not be just to exact that its fulfilment should be subjected to the considerations which in more set- tled and quiet times, are wont to be observed among enlightened nations for the benefit of commerce. The publication of [newspaper] articles injurious to a foreign gov- ernment may not be, in ordinary times and circumstances, a sufficient motive for that government to exclude from its ports a vessel which shall have on board the author of those articles ; but I invite the atten- tion of your excellency to the circumstances in which the island of Cuba 56 CASE OF THE BLACK WARRIOR, ETC finds itself, and to those which accompanied the refusal of General Canedo to receive the Crescent City. The island of Cuba sees itself constantly menaced with invasion by bands of adventurers who collect in the United States, who there con- spire, who there distribute arms and money, who there print incen- diary libels, and who, united with some Cubans proscribed by the laws as traitors to the government of their country, exert themselves to light up in it the fire of sedition. Their audacity has arrived at the point of printing a revolutionary periodical in the very capital of the island, the authors of which have happily been discovered, thanks to the vigilance of the authorities. This was the situation of things when the Crescent City presented herself at the Havana, carrying on board a man who, according to the information of those authorities, had fomented, by his writings, the con- spiracies against the island. It ought not, therefore, to appear strange that the Governor General of the same should deem the presence of that man undesirable ; and just as little that, in view of the Crescent City's not having respected the warning not to present herself again at the Havana with Smith on board, he should forbid the entrance to a vessel which thus ignored his authority and the weighty reasons for that meas- ure. Your excellency cannot help knowing that the Crescent City, considered as a messenger of the enemy — for enemies of Spain declared are they who pretend to seize by force a part of her territory — might have been subjected, according to the l&ws of war, to measures still more severe than that of expulsion, to which the Captain General limited himself. And this manner of proceeding is so much the more natural and jus- tifiable, since, whatever may be the circumstances of the mail packets, and the contracts which the compa^r may have with the government of the United States, it is undeniable that those vessels never can be considered as having a right to the privileges and attentions due to ves^- sels-of-war, but as subject, like all commercial vessels, to the jurisdic- tion of the authorities of the port ; and their condition is in nowise altered by the circumstance, purely accidental and dependent upon the interior regulations of the country, that those vessels are commanded by an officer of the war marine. In taking the measure which has caused this reclamation from the government of the United States, it was in no way the intention of the Governor Captain General to offend that government ; his only object, was to adopt a measure which he deemed proper for the security and good order of the island. ' In the same understanding, the government of her Majesty has also approved the conduct of General Canedo, whilst it absolutely could not be its intention to do an injury to that of the United States, with which it desires to maintain good and amicable relations, and whose good will and wishes it appreciates. I have no doubt that these explanations will be sufficient to satisfy in every point the government of the United States, but in view of what your excellency manifests in one of the paragraphs of the note to which I answer, your exellency will not be surprised at the declaration that the government of her majesty is resolved to adopt all the measures CASE OF THE BLACK WARRIOR, ETC 57 which it may think necessary, within the sphere of its attributes, as the government of an independent nation, to provide for the security of the territory of the same, and that from this firm determination it will not be driven by any menace or consideration, of whatsoever character it may be. The government of her Majesty promises itself that this task will be the more easy for the good will with which it hopes that the government of the United States will co-operate to defeat the intentions of those unquiet and turbulent men who, in order to satisfy a criminal covetous- ness, neglect not the smallest pretext for exciting resentment between Spain and the United States ; and the government of her Majesty, on its part, will neglect no means for destroying such projects, thus securing solidly the peace which now exists between the two nations. I avail myself of this occasion to renew to your excellency the assu- rance of my distinguished consideration, &c, &c, &c. MANUEL BERTRAN DE LIS. To the Minister of the United States. Legation of the United States, Madrid, December 12, 1852. Sir : I had the honor last evening to receive your excellency's note of the 8th instant, in reply to mine of the 24th ultimo, on the subject of the demand made by the government of the United States, in conse- quence of the refusal of the Captain General of the island of Cuba to permit the entry into the port of Havana of the mail steamer " Cres- cent City," or to allow her to deliver the mails or passengers destined for that island. The reasons for that demand, and the principles upon which it is based, are so fully and so explicitly stated in my former note, which indeed contained the exact instructions from my govern- ment, that it is not deemed necessary or becoming to enlarge upon them in this communication. I cannot forbear, however, the expression of my sincere regret at the unsatisfactory nature of the answer of her Majesty's government as con- tained in your excellency's reply. The facts, as stated in my note, are uncontro verted, but the principles insisted upon by your excellency in behalf of her Majesty's government will, if persisted in, inevitably re- sult in the most serious consequences, not only to all commercial inter- course between the United States and her Majesty's West India posses- sions, but necessarily, likewise, to the friendship and peaceful relations which ought to exist between both nations. What is the pretence now made by the Captain General of Cuba — now sanctioned and authorized, according to the note of your excel- lency, by her Majesty's government? Wiry, that under an accusation, a mere suspicion indeed, that an individual has been the author of an offensive publication, or any other obnoxious act, in his own country, the Captain General may, at any time he may deem proper, without due notice, and without being in any way answerable for his conduct to the demand of a friendly nation, not only prevent such person from 58 CASE OF THE BLACK WARRIOR, ETC entering any port of the island, but also exclude the vessel, belonging to a friendly power, which has him on board, at whatever injury to commerce or inconvenience to other passengers, although such vessel may be commanded by a properly appointed officer of that friendly power, and chartered with the full knowledge and consent of the local authorities and the Spanish government, to deliver, at regular periods, the public mails of that nation at such port. Under this extraordinary claim the Captain General of Cuba is not only made the censor and sole judge of what shall or shall not be pub- lished in a foreign press, to debar the author from all communication with the island ; not only the exclusive arbiter to decide what are and what are not libels or "calumnies" against his government; but its practical assertion puts it entirely in his power to say who shall and who shall not be in the employment of owners of friendly vessels en- tering the ports, excluding or detaining all vessels, even the mail-ship, at his mere will and pleasure, for he alone is to judge of the exigency which requires the exercise of the power claimed by him. It is mani- fest that such arbitrary and unaccustomed requirements as are insisted upon by the Captain General of Cuba cannot be enforced without an interruption of all friendly intercourse. Publications like that complained of are not within the control of the company owning the vessel, or its officers on board ; they cannot know who are the authors. The most gross and violent abuses of authority must follow the claim to exercise such jurisdiction over foreign vessels for what may have been done in their own country. In the very case before us, even admitting the right of the Captain General to exclude Purser Smith on the ground stated, it appears that he was wholly in error, and that Mr. Smith was in no way guilty of the accusation against him. Besides the statement of Lieutenant Porter, and that of the company, testifying to his innocence as far as they believed or could ascertain, Mr. Smith himself, who is represented to be of inoffensive character and entirely worthy of credit, makes solemn oath that he " has never written or published anything against the government of the island of Cuba, nor ever carried letters or messages to and from disaffected persons in said island, or held any communication with such persons, or in any manner interfered with the affairs of the said island or the proceedings of its authorities." And, if the undersigned is not misinformed, in a similar and recent instance the mails on board an American merchant vessel were seized and examined, the passengers imprisoned and maltreated by the same authorities, when it appeared, on further examination, that the suspi- cions on which they had acted were groundless. These facts are referred to merely to show how liable to abuse is the right claimed by the Captain General, admitting it to exist for cer- tain purposes, on the ground of local police regulations for the general safety, and how harsh, inconsiderate, and injurious has been his con- duct in the cases referred to. The important inquiry, however, is not whether Mr. Smith, or any other particular individual or class of per- sons obnoxious to the local authorities in her Majesty's government, can be excluded and held "incommunicado" with the island from any considerations of public security or order ; but whether in this unusual, CASE OF THE BLACK WARRIOR, ETC 59 unadvised, and unfriendly manner, the Captain General can exclude, under existing treaties, and the acknowledged mercantile usages of the world, any American vessel from the ports of Cuba, because she may have one objectionable person on board, and thus interrupt commercial and social intercourse between the countries — more espe- cially when that vessel partakes of a public character, by being em- ployed by the government of the United States for the transportation and delivery of the public mail, and is commanded by an officer of the war marine for that purpose, with the consent and continued acquies- cence of the local authorities of the island, as well as that of the Span- ish government. This claim is emphatically denied, and against such proceedings the government of the United States do solemnly protest. If persisted in, no American vessel can be exempt from liability to arbitrary seizure, detention, injury, and insult. Such a course is in gross violation of that international comity on which is founded almost all commercial inter- course. Besides the want of actual necessity, under the circumstances of the case, to justify such a proceeding on the part of the Captain Gen- eral, it is believed to have been unwise and impolitic, and well calculated to defeat the very ends intended by its adoption. It is true, as I am happy to say, that in your excellency's note there is a distinct and full disavowal of all purpose on the part of the Captain General and of her Majesty's government, in approving his acts, to offend in any manner the government of the United States. But still his conduct is approved, and it is declared that a similar course of proceeding will be pursued in future, at every hazard. If such continue to be the assertion of her Majesty's government, it will be for that of the United States to take such measures as may be necessary to protect their own interests, and such as may be consistent with their own sense of dignity and justice, under all the circumstances of the case. Your excellency is not ignorant, that while maintaining in their full extent the honor and interests of my own government and nation, it has always been my anxious wish and effort to do justice to Spain, and to preserve and confirm these ties of friendship between both nations. But I am free to declare, that perseverance in the policy which has been approved by her Majesty's government, and the continued exer- cise of the power claimed by the Captain General of Cuba, are not calculated to strengthen these ties, and maintain the peaceful relations which now happily exist. Your excellency does injustice to my government and myself in sup- ' posing that in my former note the language of u menace" was em- ployed. It is due, however, to the gravity of the subject itself, and the relations which subsist between both governments, that the true ten- dency of measures should be candidly and fully examined, and all the consequences fairly stated and looked in the face. Peace can be best maintained by cordial frankness and a perfect understanding of mutual views and purposes. I deem it also proper to state, in reply to the surprise expressed by your excellency that this demand should have been made after the receipt of information from her Majesty's minister at Washington, that I have been furnished by my government with no such information as 60 CASE OF THE BLACK WARRIOR, ETC. that referred to. On the contrary, the views of my government are to be found in the note which I had the honor to communicate on the 24th ultimo, and, so far from removing Lieutenant Porter from the command of the " Crescent City," in consequence of the government of the Uni- ted States having recognized the perfect right and justice of the pro- ceeding of General Canedo in reference to that vessel, I have every reason to believe, in the absence of direct information from my govern- ment, that that officer was relieved and transferred to another vessel at his own request, to avoid any supposed irritation or complication of difficulties which might arise from his presence on the return of the steamer to Havana, in the regular performance of her contract with the government. A copy of your excellency's note containing the answer of her Ma- jesty's government to the demand made by that of the United States, shall be immediately forwarded to the latter for their further action on the subject. I avail myself of this occasion to renew to your excellency the assu- rances of my distinguished consideration. Your obedient servant, D. M. BARRINGER. His Excellency Don Manuel Bertran de Lis, Minister, fyc, &fc. Mr. Roberts to Mr. Everett. Office of the U. S. Mail Steamship Company, New York, December 14, 1852. Sir: On the 15th of November ultimo we were notified by the collector of this port, under instruction from the Department of State, by the direction of the President, that official information had been re- ceived at the department stating that "on occasion of the arrival of the Crescent City at Havana, on the 14th October last, she entered the port within the hours prohibited by a law or regulation of the island of Cuba, notwithstanding, as is alleged, she was hailed three times, and required to desist ; that the sentinels whose particular duty it was to fire upon a vessel under these circumstances have been imprisoned for failing to perform their duty on the occasion ; and that the Governor General of the island informed Mr. Conkling, the American minis- ter to Mexico, on his visit to the island, that he had given peremptory orders, that should an attempt again be made by the commander of the Crescent City to enter the port of Havana at an irregular hour, she should be fired upon from the Moro." When the above communication was received at this office, Lieut. D. D. Porter, who was in command of the Crescent City at the time referred to, was absent from this port. On his return I submitted the communication from the department to him, and received the reply enclosed herewith. It has been the invariable course of this company to instruct the commanders and officers of its ships scrupulously to observe every CASE OF THE BLACK WARRIOR, ETC. 61 regulation of the port of Havana, and I have no reason to doubt that such instructions have been complied with. I need not assure the department that no such regulation, so far as it ma}*- be known to exist, shall be infringed by the ships or the commanders of the com- pany. I have the honor to be, very respectfully, your obedient servant, M. O. ROBERTS, Agent. Hon. Edward Everett, Secretary of State. New York, December 6, 1852. Sir : In answer to a communication from the Hon. Secretary of State, on which you ask information relating to the following charge brought against me while in command of the Crescent City, to wit : " On the arrival of the Crescent City on the 14th ult., she entered the harbor within the prohibition hours, notwithstanding, as is alleged, that she was hailed three times, and required to desist" — I beg to state that the statement is without foundation. I entered the port in broad, day-light, and received no hail from the fort or guard-ship. There was not a single sentinel or other person visible on the Moro, and the telegraph house from which we are usually hailed was closed, and no one stirring, though it was the usual hour for telegraph. I know of no regulation prohibiting the entrance of vessels into the port of Havana, after night fall, though there is one prohibiting the exit of vessels without a pass. I have often entered the port at the same hour I did on the occasion alluded to ; have sometimes been hailed, and sometimes not ; and have, on two occasions entered after sunset, without having been accused of violating the port regulations. At the time I entered on the 14th, other vessels were also entering, and taking their departure from the harbor. I am firmly convinced that there is no port regulations prohibiting the entrance of vessels at any time ; they are sometimes required to anchor at or near the guard-ship inside the harbor, but then only in case they are hailed, which was not done in the case of the Crescent City. Very respectfully, your obedient servant, D. D. PORTER. M. O. Roberts, Esq. Mr. Everett to Mr. Sharkey. Department of State, Washington, December 30, 1852. Sir : I transmit you, herewith, copies of correspondence between this department and the collector of New York and the agent of the United States Mail Steamship Company. 62 CASE OF THE BLACK WARRIOR, ETC You will have the goodness, in a proper and discreet way, to ascer- tain the facts of the case, in reference to which there seems to be a direct disagreement between the statement received by us from an authentic source, and Lieutenant Porter. You will easily see that much delicacy may be necessary in pursuing the inquiry. You will also have the goodness to procure and forward to this department a copy of the port regulations of Havana. I am, sir, &c, EDWARD EVERETT. Wm. L. Sharkey, Esq. United States Consul, Havana. Mr. Roberts to Mr. Everett. U. S. Mail Steamship Company, New York, January 4, 1853. Sir : On the 14th December I had the honor to enclose to you the statement of Lieutenant Porter, United States navy, in answer to the allegation made officially to the Department of State, that on the 14th October, he, as commander of the steamship Crescent City, had en- tered the port of Havana within the hours prohibited by a law or regu- lation of the island of Cuba, notwithstanding he was hailed three times and requested to desist ; that representation of the fact had been made to Mr. Conklin, American minister to Mexico, on his late visit to Ha- vana, and that the Governor General had given orders that should the attempt be again made to enter the port at an irregular hour, the ship should be fired upon from the Moro. Lieutenant Porter denied the fact of being hailed by the sentinel, and stated that he knew of no law or regulation prescribing hours for entering the port. It will be seen, by the enclosed official copy of the regulations of the port of Havana, that no such 'prohibition exists, so far as the regulations have been published and are known to the commanders of vessels en- gaged in commerce with the island. I have the honor to be, very respectfully, your obedient servant, M. O. ROBERTS, Agent of the U. S. Mail Steamship Company. Hon. Edward Everett, Secretary of Stale. Orders, that all masters of vessels entering this port observe the following regulations : Article 1. Vessels entering port will be governed by the articles of these instructions : No vessel can be moved from one spot to another without first obtainining permission from the captain of the port ; and such removal can take place only between sunset and nine o'clock of CASE OF THE BLACK WARRIOR, ETC 63 the succeeding morning; and any one contravening this regulation shall pay a fine of $12 for the first time, and of $24 in case of reitera- tion. No vessel shall pass across any of the shallows of the port, nor from one channel to another, without taking a pilot, although his cap- tain knows them perfectly well, in conformity with trit. 5th, tit. VII, art 36, of the royal naval ordinances ; and he who shall contravene this regulation shall pay the pilotage just as if he had employed the pilot. Art. 2. As soon as a vessel has anchored and her sails are furled, the captain shall moor on the east side of the channel, in order to leave it free. This must, be done by all vessels alike, whether they have anchored outside the guard-ship or within. They will make fast to vessels near them until they reach their place of mooring. This rule is the more imperative if the vessel, on account of the lightness of the wind, has anchored in the narrowest part of the channel. In such case, the master must warp out of the channel immediately. If any master, after being required so to do, shall obstruct the channel, a boat with a pilot shall be sent, at his charge, to place his vessel in a pro- per position, and pay a fine of $12, besides the damages originated thereby. The master, on coming ashore, must present himself at the office of the captain of the port ; and if he has any colored man on board, his consignee must sign the bond before the twenty-four hours of his an- choring, according to the orders of the Captain General; and not doing it in the fixed time, will be taken ashore in deposite till the departure of the vessel in which he came. Art. 3. If he has powder on board, he must report the quantity, in order to make the necessary dispositions for its deposite. If he con- ceals the whole or any part thereof, the master shall pay a penalty of $24, and of $48 in case the vessel should be moored at the wharf pre- vious to said declaration ; as it has been observed that some delay its deposite in order to gain time in hauling to the wharf, and others keep their powder on board while in the stream under pretext of it being but a small quantity. The discharge of cannon, or fire-arms of any de- scription, in the harbor, is prohibited, under a penalty of $15, without permission from the admiral and giving notice at this office. Art. 4. At sunset, fires on board of every vessel must be extin- guished, whether in the wharf or in any other part of the port. The cabin light may continue till gun-fire, provided it is kept in a lantern in good condition. The master of any vessel who neglects to obey the above disposition will be liable to a fine of $25, if lying on the stream, and of $30 if he is fastened to the wharf. Art. 5. No vessel can take ballast on board or discharge it without a written permission from the captain of the port, who will point out the place from which it must be taken, or where it must be discharged. Care must be taken to place tarpauling to prevent its falling in the water. In neglect of this, the master of such vessel will pay a fine of $2 for every twenty quintals, and of $4 being the vessel lying at the wharf in the harbor, or in any other place prejudicating the harbor. If for carelessness in taking in or out ballast, should fall any part of it into the water, the captain will pay the fine of $2 for every twenty quintals, and of $4 in case of reiteration, being the fine of one and a half 64 CASE OF THE BLACK WARRIOR, ETC dollars for a quantity less than twenty quintals in any of the preceding- cases. Equal care must be taken in discharging bricks ; and on no account must any straw, sand, or sweepings be thrown overboard, under a penalty of $6 for the first time, and in case of reiteration, of $24 ; for if there be any on board, the master, after putting it in his launch, may call at the captain of the port's in order to be told where to discharge it. Should there be violated by any step or act two or more of the above dispositions, the infractors will pay the value of the fines, as prescribed in every of said cases. To the same fines will be liable the captains or masters by disobeying the preceding regulations in any anchoring place on the coast, even not being there any authority of ma- rine. It is likewise prohibited to heat tar or pitch on board, as this can be done only on shore, and at the place designated, it being understood that those who violate this article shall pay a penalty of $50. Art. 6. All orders communicated to masters of vessels by pilots or port vigilants must be obeyed, since they emanate from the captain of the port. Art. 7. In case of any vessel getting unmoored and being in danger of stranding or being lost by weather or other accident, it is the duty of all other vessels to render every possible assistance. If any one fails in this duty, he shall pay the damage resulting from his neglect. Art. 8. Every master of a vessel, at the time of anchoring, must take care that his cables do not get foul of others, as he will be liable to make good any damage that may arise from his carelessness. Art. 9. No vessel will be allowed to leave port before sunrise or after sunset, for they must be visited on going out. Art. 10. In case a master wishes to caulk, 1 repair, careen, heave down, or fumigate his vessel, he must first obtain permission from the captain of the port ; but by no means will it be allowed at the wharf, under the fine of $12, as there are for this purpose several careening places, where it may be done without inconvenience or danger to the harbor, under the fine of $24 if done in any careening place without said permit ; and any one smoking or breeming his vessel in any place of the harbor without said license will pay a fine of $100. Art. 11. The master intending to haul his vessel to the wharf must first have a place assigned him by the collector of customs. He shall by no means lie behind those fastened to the wharf, under a -penalty of $50 and a liability for all damage that may follow ; particularly in case of gales or fire, when it would be necessary to haul a vessel from the wharf. He must also first brace the lower and topsail yards into port, cokbill his anchors, and in case it being a small vessel, the jib and flying jibboom must be taken in and the spanker boom unshipped, in order to avoid damaging other vessels. They must be distant from each other at least three feet by the beam, by which means they may haul from the wharf without difficulty. In hauling to the wharf or leaving it, or moving from one place to another, permission must first be had from the captain of the port : either one or the other can only be clone from daylight until nine o'clock in the morning, or from sunset till dark ; but by no means can they remain in the channel, or disturb the free ingress with lines or ropes, under penalty of $100 and pay- ment of the damage they may occasion. CASE OF THE BLACK WARRIOR, ETC 65 Art. 12. No vessel shall be moored in the channel but in the neighbor- hood of, or along the Casa Blanca shore, leaving a free space between the north end of Marty's wooden wharf and the northwest angle of the King's store, at Casa Blanca, for the free passage of boats to and from Cabana; then along Aromy's wharf and the edge of the channel until the wharf of Lucas Padron, in which space they may moor with two anchors — the first ahead with forty fathoms chain, and the other on the stern thirty fathoms — bearing northwest during the months from October to March, and the rest of the year to the southeast, keeping themselves in a line to avoid doing any damage to one another ; and from thence to the shallows on the east side can be moored with one anchor, with twenty-five fathoms of chain, during the season of fight winds, and during the season of gale winds they may double the length of their chains as circumstances may require, keeping the same distance from one another, without obstructing the channel of quaran- tine or the pass of the English mail steamers, and also avoiding to an- chor near vessels of war, from which they must be distant at least one cable's length. It will not be a pretext for not complying with the above rules that the vessel is going to or coming from the wharf, be- cause, being in any of these cases, they must choose the proper time to moor in their appointed place the same day they move from another, being understood that those who shall not obey this disposition will be obliged to receive the saving launch or the pilot's boat, from the cap- tain of the port, with its crews, to be properly moored, and all the charges will be paid by the neglecting masters of vessels according to the tariff, besides the fees of the pilot employed. Art. 13. No vessel shall be fastened to the buoys which are placed to indicate the shoals in the channel, nor to those destined for the ves- sels of war ; the master doing so shall pay a penalty of $12, and also the expense of all damage which may result from moving a buoy from its place. There are, for that purpose, seven buoys anchored on each side of the channel, at the entrance of the port, in which they can make fast their ropes to haul in the vessels, and are distinguished from the others by having an iron ring on the top, and those which indicate the shoals have only an iron point. Art. 14. In case of fire breaking out on board of any vessel in har- bor, it is strictly enjoined upon the master of every vessel in port to send immediately his boats to the scene of the fire, well manned, and provided with lines, buckets, swaps, and every other article necessary in such cases, as well as fire engines, if they have any on board, in or- der to extinguish the same as quick as possible. The captain of the port orders the most strict obedience to this article under the immedi- ate responsibility of masters of vessels. Art. 15. A master of a vessel who may require a launch is at lib- erty to make his selection, but he must give notice at the office of the captain of the port in order to have it examined, as prescribed by ordi- nance ; and he who loads a launch without leaving the wales two inches out of water, shall be subjected to a penalty of $20. Art. 16. In case of disturbances on board amongst the sailors, at late hours in the night, the master may call on board the guard-ship for assistance until the morning, when he may get a letter from his 5 DO CASE OF THE BLACK WARRIOR, ETC. consul to the captain of the port to lodge them iu jail. No master of a vessel shall discharge any seaman without permission from the consul of his nation. Art. 17. The day before a vessel goes to sea the master may call at the office of the captain of the port for an order to take his powder on board, if he has any in deposite. Art. 18. It is prohibited to pass backwards and forwards in the harbor in boats after evening gun-fire ; all persons doing so are liable to be carried on board of the flag-ship, where they will remain at the disposition of the admiral. Art. 19. 1st. As a safeguard against desertion, by preventing men from deserting or being stolen from the vessel to which they belong in order to ship in another, one licensed shipping-master has been ap- pointed for the port, who alone is authorized to ship any man, or en- gage him to serve in any way on board any vessel in the harbor. This shipping-master is prohibited from shipping any sailor until he shall have ascertained that the sailor has been lawfully, and conformably in all respects to the regulations, discharged from the vessel which brought him to this port, with the knowledge and consent of the consul of the nation to which said vessel belongs. Captains are at liberty to make their own bargain with any man thus lawfully discharged, but no sailor shall, under any pretext whatsoever, be employed or received, nor shall he be allowed to remain on board of any vessel in this port until after he has been regularly shipped by the licensed shipping-master, and notice thereof has been given by him, and by the master of the vessel on board of which said shipment takes place, to the consul of the nation to which said vessel belongs. 2d. If one sailor should be employed or received on board of any vessel in violation of the foregoing prohibition, without the authorization of the commander of marine, (being Spanish subjects,) or without the same of the shipping-master, (being foreigners,) the master of such vessel shall pay a fine of $50 for every person ; which fine shall be doubled in every case where a sailor shall unlawfully be on board of any vessel after said vessel shall have been cleared at the custom- house. 3d. It is the duty of the licensed shipping-master of the port, Mr. Daniel Warren, to comply punctually with this regulation, and to watch over all infractions thereof, that he may give immediate notice of the same to the captain of the port, who will impose and exact the penalty. Art. 20. The carrying of deadly weapons about the person is pro- hibited by the laws of this country, which punish the offender with six years' imprisonment at hard labor. This being the penalty which awaits every man found on shore with a pointed knife, or a pistol, or any other instrument whereby death may be inflicted, about his person, shipmasters are strictly enjoined to caution their sailors on this point, and to take care that they do not, by wearing their sea-knives ashore, incur the penalty of the law. This penalty attaches to the mere fact of having such knife or other weapon about the person, and it is not necessary that the weapon be used. Art. 21. All masters of merchant vessels are bound to hoist up their CASE OF THE BLACK WARRIOR, ETC. 67 national flag every time the admiral ship does it fore and aft, being a holiday, or for any other cause ; and the captain, on leaving the vessel, must take particular care to recommend the person, whoever may be in charge of the vessel, to comply with the said order ; and not doing so, the captain will be responsible for the fault. Art. 22. For the purpose that the vessels lying in this port (should the barometers indicate bad weather) might be able to moor properly in due time, there have been established the following signals, which will be hoisted for some hours on the flag-staff of the office of the cap- tain of the port : 1st. Red triangular signal signifies that there are appearances of bad weather. 2d. Triangular signal, half blue and half yellow, horizontal, signifies that there are appearances of very bad weather ; and every time that the aforesaid signals have a black ball at the top or above, this will signify that the bad weather is becoming clear. Art. 23. On entering the port the first boarding officer will hand, gratis, these instructions to the master, who shall deliver them back to this office at the time of his clearance. Art. 24. All steam-vessels are bound to shorten their speed, as much as possible, from the moment they are under the Moro coming in, until they reach the same place going out of the harbor ; and the infractors, (not being their first visitation to this port,) besides the damages origi- nated, will pay the fine as stated below ; and in all cases, should they be proved that they have been instructed by the pilot of said order, $30. F Mr. Barringer to the Secretary of State. [Extract.] Legation of the United States, Madrid, January 5, 1853. I have the honor to transmit, herewith, copies of a note from her Majesty's Minister of State for Foreign Affairs, under date of the 28th ultimo, and of my reply to the same of the 30th ultimo, on the subject of the affair of the mail steamer "Crescent City." It will be seen / from the former that her Majesty's government regarded the question in issue as finally adjusted, according to information in the Foreign Office, by the circumstance of the Captain General of Cuba having accepted, as sufficient and satisfactory to him, the affidavit of Purser Smith. After the full and emphatic approval by her Majesty's government of the conduct of the Captain General in this matter, as contained in the note of her Majesty's Minister of State, dated the 8th ultimo, and in the face of their direct refusal to grant the satisfaction demanded by the government of the United States, I could not, acting on a just sense of what was due to my own government, concur in this view of the subjeet, especially in the absence of any similar information from 68 CASE OF THE BLACK WARRIOR, ETC- the Department of State. It will be seen from the previous corre- spondence that the affidavit of Purser Smith was communicated by me to the Spanish government here, and that it was not regarded by this government as of the slightest importance ; on the contrary, with that sworn declaration before them, the order of the Captain General was approved in all respects, and declared to be founded in just and suffi- cient reasons, notwithstanding the opinion of the President. Since the date of my said note of the 30th ultimo to the Spanish government, I have had the honor to receive your dispatch No. 65, of the 4th ultimo, with its enclosures, referring to this object. I do not feel authorized to infer from this dispatch that the President regards the question as finally adjusted, although informed of the gratifying circumstance that the Captain General had been pleased to abrogate the prohibitory order which has caused all the difficulty and embarrassment in this case. I am the more confirmed in this opinion, as your dispatch seems to contemplate further communicating with the Spanish government in reference to this unpleasant subject, for the satisfactory adjustment of which I now hope that the recent action of the Captain General, in rescinding the obnoxious order, has opened the way, if her Majesty's government are disposed to avail themselves of the same. As to the assurances to be given to her Catholic Majesty's govern- ment of the firmness and good faith with which the President has re- sisted the spirit of unlawful adventure against the island of Caba, I have heretofore endeavored, on all proper occasions, to make them in the most solemn manner, and will continue to repeat them as often as may be necessary. I regret to say, however, that, in my opinion, the government of her Majesty have never justly and fully appreciated the efforts of that of the United States in this respect, and have too often acted as if they entertained improper suspicions as to the real motives of our conduct. I have heretofore had occasion, in my correspondence with the depart- ment, to refer to the agencies which are too often employed to produce unfavorable impressions of our government and people in this peninsula. Hon. Edward Everett, Secretary of State. Madrid, December 30, 1852. Sir : I have had the honor to receive your excellency's note of the 28th instant, announcing to me that, according to information received at the department of which your excellency has charge, the question concerning the order of the Captain General of the island of Cuba, refusing the entry of the American mail steamer " Crescent City" in the port of Havana, had been finally terminated, in consequence of the sworn declarations of Mr. Smith being considered by General Canedo as " sufficient and satisfactory." However rejoiced I should be to know that this unpleasant negotia- tion has been definitively adjusted on a basis satisfactory and honorable to both nations, I regret to say that I have, as yet, no such information from my government ; and certainly no such inference can be made CASE OF THE BLACK WARRIOR, ETC 69 from anything that has yet occurred in the correspondence at this court, to which the question was referred by the United States. I fear, there- ore, that your excellency is under some misapprehension as to the much desired result of the final adjustment of this matter. I beg to say- to your excellency that the demand now made is not an affair between General Cafiedo and other subordinate officers of her Majesty's gov- ernment and the steamship company to which the Crescent City be- longs, or Mr. Smith, their purser. It is not a difficulty to be adjusted by an explanation to be given by Mr. Smith to the Captain General of Cuba, as if the latter were the author of a reclamation made for a wrong, real or supposed, done to his authority, and to the island of which he has the command only under a superior power. It is an affair between the government of her Catholic Majesty and that of the United States, who supposed they had a right to expect from the former the prompt and decided disapprobation of a course of proceedings on the part of their subordinate officer, the Captain General of Cuba, which was and still is regarded by the President, under all the circumstances, as un- necessary, unwise, harsh, and arbitrary towards a vessel of a friendly nation, upon what was then believed, and now proved to be, a ground- less accusation against a single individual on board of the same. The government of the United States conceived they had a just ground of complaint for what had been done by the Captain General of Cuba. This complaint they have made the subject of a remon- strance to the only responsible power, the government of her Catholic Majesty; and, in a spirit of friendship and earnest desire for an amicable and satisfactory result, have called on the latter to say if they approve the conduct of the Captain General in the matters which are made the foundation of the demand. Instead of the decided disapprobation which the President supposed he was justified in expecting, the gov- ernment of her majesty have replied, according to the note of your ex- cellency's predecessor in the office of foreign affairs, that they did ap- prove of the proceedings of the Captain General, though in the course pursued by the Captain General and by her Majesty's government in approving the same no offence was intended by either to the United States. This reply, which the undersigned deemed unsatisfactory, has been forwarded to the government at Washington, for their further advice and action. No answer has, or could yet have been received by me, to this communication. It will be awaited for with deep interest by the undersigned, and with an earnest hope that the question may yet be satisfactorily and honorably adjusted between the two governments, to whom it properly appertains. In the mean time, I had hoped, and still trust, that on a calm review of the whole case, her Majesty's government will admit that the grounds of complaint by the United States in the matters referred to were just, and that the conduct of the Captain General in this respect was indefensible. The act of the latter in accepting the voluntary affidavit of Mr. Smith as sufficient and satisfactory to him is duly and highly appreciated, as manifesting a conciliatory spirit, and as removing the embarrassments to commer- cial and social intercourse which had been caused by his previous con- duct ; but it does not atone for the wrong already done on two several 70 CASE OF THE BLACK WARRIOR, ETC. occasions ; it does not answer the demands made by the government of the United States, and has not, so far as I am advised, in any de- gree changed the opinion of the President as to the character of the proceedings of the Captain General. The principle involved is not thereby altered, and no guarantee is given that the same thing may not again be done by the local authorities of the island whenever they may think it proper or convenient. Indeed, the demand made is left in a state more unsatisfactory to the United States ; for, if adjusted by the mere circumstances mentioned by your excellency, it would seem to imply, and may hereafter be quoted as a precedent to that effect, that the Captain General may justly exact from any officer he chooses to designate, on board an American vessel, of whatever character or description, a statement on oath that he is not, and never has been, en- gaged in any act whatever which the Captain General may, in his judgment or his caprice, deem obnoxious to the Cuban government, or any members thereof, as a condition precedent to the entry of such vessel in any part of the island. While the abstract right to exclude from the island Mr. Smith, or any other foreigner, for a specified rea- son, is freely admitted, it does not therefore follow that the vessels on which they are for the time being may also be excluded, and that it would be a friendly proceeding, in time of peace, to deny to the vessel of a friendly power the landing of the passengers and the delivery of the public mails on any such pretence as that made by the Captain Gen- eral, and in regard to which he now admits, by accepting and adopting the statements of Mr. Smith, that he was entirely in error, and acted before on groundless suspicions. It must be obvious to any one, and especially to one of your excel- lency's knowledge and experience in the commercial and other affairs of that island, that such a course of proceeding on the part of the Cap- tain General as that now solemnly protested against, if recognised and allowed to be adopted as a precedent for future action, must sooner or later terminate in a complete interruption of all friendly communica- tion, and an odious system of non-intercourse between the two nations, whose contiguity and mutual interests require a very different policy for the general welfare of both. I have too strong a conviction of the good wishes both of your excellency and of her Majesty's government towards the United States, and for the maintenance of peaceful and cordial relations with the same, to suppose that any such fatal result is desirable to either ; and on the part of the government of the United States it is, I trust, unnecessary to remind your excellency of the friendly desires and kind offices which the President has on all occa- sions, and some of great responsibility, so firmly and faithfully shown towards the government of Spain, as an assurance that, under all cir- cumstances, the American government will not fail to perform their whole duty towards a friendly power, and of their ardent desire to pre- serve perfect peace and harmony between both nations. I avail myself of this occasion to renew to your excellency the assu- rance of my most distinguished consideration. Your obedient servant, D. M. BARRINGER. His Excellency the Count of Alcoy, President of the Council and Minister of State. CASE OF THE BLACK WARRIOR, ETC 71 [Translation.] First Department of the Office of State, Palace, December 28, 1852. Sir : I had the honor to receive your excellency's note of the 12th instant, in which you reply to mine of the 8th relative to the question raised at the Havana with respect to the mail steamer " Crescent City." I have now the satisfaction to announce to your excellency that, ac- cording to the information received in the department under my charge, this question is terminated by General Cafiedo having considered the sworn declaration of Mr. Smith, of which your legation is already cog- nizant, as sufficient and satisfactory. I believe it therefore unnecessary to pursue the discussion in reply to the above-mentioned note of your excellency ; and I avail myself of this occasion to renew to your excellency the assurances of my most distinguished consideration, &c, &c. The COUNT OF ALCOY. The Minister Plenipotentiary of the United States. Mr. Everett to Mr. Barringer. [No. 73.] Department of State, Washington, February 4, 1853. Sir : Your dispatches up to No. 121 have been duly received and submitted to the President. Your dispatch, No. 116, of the 14th of December, is accompanied by your correspondence with the Spanish government on the affair of the " Crescent City," and the President has directed me to express to you his approbation of the manner in which you have treated the subject. Since the date of the letters which passed between you and Mr. Bertran de Lis, the message of the President at the opening of the session, and the paragraph relative to the affair of the " Crescent City," in my letter to the Count de Sartiges of the 1st of December, of which a copy was transmitted to you, will have shown to you, and to the Spanish government, in a still stronger light than it appeared before, the reasonableness of our complaints of the conduct of the Governor General in this affair, and the consequent justice of our demand that it should be disapproved. The government of her Catholic Majesty appears to mistake the ground of our complaint, as it has mistaken, also, in the opinion of the President, the course which it should itself have adopted on this occa- sion. The United States have never denied the right of the Governor General of Cuba, under the unlimited powers with which he is clothed, to take any measures, however stringent, which he may deem necessary for the safety of the island committed to his government. But this is a right to be exercised under a proper responsibility to all whose interests are involved in the measures adopted. It is to be ex- ercised reasonably, and with due proportion of the means adopted to 72 CASE OF THE BLACK WARRIOR, ETC. the end proposed — that is, the protection and security of the island. It ought also, as far as foreigners are concerned, to be exercised with the comity which one independent government owes to another. If it be said that the Captain General of Cuba, as a subordinate officer of Spain, could be under no responsibility and owe no comity to the United States, this consideration only shows that the responsibility of his acts devolves upon the government of Madrid, which, before it ap- proves his conduct, is bound to show that the measure adopted by the Captain General towards Purser Smith, and the vessel having him on board, was necessary as a measure of protection and defence for the island, or at least well adapted to that purpose, and was resorted to, if not on sufficient evidence, at any rate on reasonable grounds of suspi- cion, and was promptly communicated to this government, with the reasons which led to its adoption. It is scarcely necessary to say, that not one of these conditions was fulfilled. The exclusion of a single individual serving on board of the "Crescent City" in a subordinate capacity, and the prohibition of the landing of the mails and the passengers from any vessel having him on board, was certainly a measure indicating nothing but displeasure to- wards an individual, and not in the slightest degree tending to the safety ol the island. Purser Smith's supposed offence has never, to this day, been specifically stated to this government, neither as to its nature nor the manner in which it was committed. It is supposed to have been that of furnishing the press of New York with accounts deemed calum- nious of persons and things in Cuba. But considering the character which the Spanish minister ascribes to the company in whose employ Purser Smith sailed, it need scarcely be said that nothing was to be gained by excluding an individual whose place was sure to be taken by another equally dangerous, and that the only possible effect would be to induce a little more caution in the propagation of the calumnies com- p ained of. ' It is a striking commentary on the conduct of the Captain General of Cuba, in inflicting a blow upon the commercial intercourse of the two countries as a punishment for calumnious publications imputed, and that erroneously, to an individual, that in the journal "LaEspana," transmitted with your No. 121, and stated by you to enjoy the counte- nance of some of the highest personages in Spain, the President of the United States is spoken of in terms equally unjust and disrespectful — a circumstance, however, which,' instead of leading the government of the United States to desire to inflict any punishment on the culpable indi- viduals or innocent third persons, is regarded by it with entire indiffer- ence. In countries where the liberty of the press prevails, it is found that these abuses furnish their own correction. They become important only by being made the subjects of coercive measures. Again, what possible effect could the presence or absence of Smith have upon the passengers and the contents of the mail ? Could they be innocent or dangerous, as he happened to be on board or not ? And as this would be an absurd supposition, why confine the prohibition to the " Crescent City," when there were precisely the same reasons, as far as the safety of the island is concerned, to extend it to the other mail steamer, the "Empire City," in the employ of the same company? It CASE OF THE BLACK WARRIOR, ETC. 73 is hardly possible to argue this question with gravity. The order was no doubt issued on the suggestion of some subordinate, in a moment of irritation ; was not communicated to the American consulate for seven- teen days, and then, without specification of the calumnies imputed to Smith, was persevered in after Smith had made affidavit of his inno- cence, and was adhered to for a considerable time upon the punctilio, afterwards abandoned, which required a personal disclaimer from Smith himself. To pronounce a course of measures like this, towards an in- dividual in Purser Smith's position, necessary for the security and pro- tection of an island garrisoned by twenty-five thousand troops and guarded by a powerful naval force, is an absurdity in terms. It is quite evident that the Captain General, long before the date of Mr. Bertran de Lis's letter approving his conduct, had felt, himself, that he had taken a hasty step, and seized the first opportunity to retrace it; and, in the opinion of the President, her Catholic Majesty's govern- ment would have pursued a more friendly course, if, instead of express- ing its approbation of a measure already rescinded in Cuba, it had at least offered to institute an inquiry into the circumstances of the case, , of which I infer, from the contents of Mr. Bertran de Lis's letter, it was itself quite imperfectly informed. In fact, this is perhaps the first time in the history of friendly States that an important branch of commercial intercourse has been suspended between two countries by a subordinate officer, without an offer, on the part of his superiors, of any explanation of the facts of the case, tending to show the necessity and reasonableness of the measure, or the evi- dence on which it was adopted. The President has the greater cause to be dissatisfied with the man- ner with which the Spanish government has treated his complaint, •inasmuch as he has uniformly, as is well known, exerted himself to the utmost of his constitutional powers, to prevent encroachment on the territorial rights of Spain. The tone of Mr. Bertran de Lis's letter would have been more appropriate if addressed to the mail steamer company which persisted in the attempt to force the admission of Pur- ser Smith, in defiance of the order of the Captain General. The Presi- dent knew the order to be an unreasonable and inappropriate one ; but, recognising the piima facie right of the Captain General to issue it, he felt it his duty to discountenance the attempt to resist it at the risk of bloodshed. This circumstance alone should have led the Spanish government to treat his just reclamation with deference. There are errors of fact and misconcept'jn of the existing state of things, which have inadvertently crept into the letter of the Spanish minister, on which I forbear to dwell. The immediate occasion has gone by. The course of the government of the United States, com- bining discretion with steadiness, averted a collision, and it is not worth while to engage in a protracted discussion of the past. The President accepts the assurance of the Spanish minister that no v offence was intended to this government by the sanction extended to the ill-advised course of General Cafiedo; and he quite approves your con- duct, in stating that it was no part of your purpose to intimate a menace to Spain. The last agent to be resorted to between independent States is the language of threat, and governments conscious of their strength 74 CASE OP THE BLACK WARRIOR, ETC. and of the uprightness of their intentions, lose nothing by forbearance in the assertion of their rights. The President, however, directs you to state to the Spanish minister, with entire frankness, that his main ground for regretting the course pursued by her Catholic Majesty's government on this occasion, is, that it tends to weaken the hands of the government of the United States in performing the duties of an honest neutrality towards the possessions of her Catholic Majesty in this hemisphere. The foregoing, with the exception of two paragraphs, was written before the receipt of your No. 121, with its accompanying correspond- ence, the contents of which do not vary the state of the controversy. You will communicate the substance of this letter to the Spanish gov- ernment; but beyond this, unless something unforeseen occurs, the President does not think it worth while to continue the discussion. He has just directed me to propose to the Spanish minister here to obtain from his government authority to negotiate a commercial convention, the want of which is greatly felt ; and he would be unwilling, by pro- longing a fruitless controversy, to throw an obstacle in the way of such a negotiation. I am, sir, &c, EDWARD EVERETT. D. M. Barringer, Esq., fyc, fyc, Sfc. Mr. Barringer to Mr. Marcy. [No. 136.] Legation of the United States, Madrid, April 7, 185/ 3 Finale of the Crescent City affair. Sir : In pursuance of the instructions contained in dispatch No. 73, from the Department of State, I have communicated to the Spanish government the substance of that letter. His excellency the President of the Council, who is also Minister of State for Foreign Affairs, expressed his regret that the course pursued by her Majesty's government in the affair of the "Crescent City" mail steamer had not been satisfactory to that of the United States, but he insisted that it ought not to have been expected that the govern- ment at Madrid should have disapproved of the course of the Captain General of Cuba. To this I answered, that I differed entirely, and throughout, from his excellency ; that it was not my purpose or wish now to renew the discussion ; that the ground taken by the United States was fully sustained by the facts and arguments of the case already presented ; that the government of Spain ought promptly to have disapproved of the rash conduct of the Captain General, and at least to have instituted a full inquiry into the matter immediately upon the complaint of the United States, before expressing their entire ap- probation of his conduct; and that if this course had been pursued, my opinion was that her Majesty's government would have finally as- sented to the just demand of the United States ; and the result would CASE OF THE BLACK WARRIOR, ETC 75 have been much more satisfactory than that which has actually followed the negotiation on this unpleasant subject. It was evident, however, that the minister regarded the affair as now terminated ; and that if I had ever been instructed to ask for a reversal of the former decision in the case it could not have been obtained under existing circumstances. Having already communicated fully with the department in reference to this affair I forbear to add more, at present, than the expression of my regret and dissatisfaction with the course pursued by her Majesty's government, and my hope that a forbearance which, under peculiar cir- cumstances, has been extended to a nation with which we are at peace, will not be shown again, after the full warning, under the aggravation of a similar outrage upon our citizens and flag. I am happy to be informed that my correspondence on this subject has been approved by the government at Washington. I have the honor to remain, with great respect, sir, your obedient servant, D. M. BARRINGER. Hon. W. L. Marcy, Secretary of State. CASES OF THE STEAMER OHIO AND SCHOONER MANCHESTER. Mr. Marcy to Mr. Barringer. [No. 77.] Department of State, Washington, April 19, 1853. Sir: You will receive with this dispatch a copy of a communication made on the 20th ultimo to the President of the United States, by Mr. George Law, of New York, and a copy of a correspondence accom- panying the same, presenting a case not only of annoyance, but of in- jury to our citizens and embarrassment to our commerce. The documents now sent supply all the facts in the case which have come into the possession of the department. From them it appears that one of the United States mail steamships, the "Ohio," in the pros- ecution of her usual and lawful voyage, with a clean bill of health, (and, as was demonstrated in the sequel, without reasonable ground of suspicion that there existed on board of her any disease that ought to have subjected her to an hour's quarantine,) was forcibly and unneces- sarily detained for two or three days at or near the port of Havana, deprived of intercourse with the shore, and her commander, Lieutenant Hartstene, an officer of the United States navy, denied even the privi- lege of communicating by letter with the American consul — all the circumstances set forth in the statement accompanying the correspond- ence, (which, but for an accident that is described, would have been signed by the whole ship's company and the passengers, upwards of 400 in number) exhibiting an apparently inexcusable exercise of power, disrespectful to our flag and oppressive towards our people. The case thus presented was one which, in my judgment, called for the prompt interposition of our government. I consequently sought an 76 CASE OF THE BLACK WARRIOR, ETC interview with Sefior Don Calderon de la Barca, the Spanish minister, and placed in his hands a copy of the papers above referred to. As he had no information on the subject, but was expecting intelligence in regard to it from the authorities of Cuba, I delayed communicating with you and directing you to call the attention of the home government to the matter until that information could be obtained. A few days since Mr. Calderon furnished me with an extract of a letter to him from the Captain General of Cuba, which he regarded in some degree as private. Among the papers accompanying this dis- patch you will find a copy of that extract. By examining it you will at once perceive that it does not in material points controvert the facts set forth in the complaint to this department, nor is it at all satisfactory to the President. The two strong grounds of complaint and sources of injury are, first, that the "Ohio" was detained for two or three days on her trip from Aspinwall to New York, touching at Havana, under pretence of en- forcing the quarantine laws against her, not only contrary to the uniform practice in regard to the mail steamers employed in this service, but after the "Ohio" had shown a clean bill of health, and without any evidence of contagious disease on board, or any inquiry into her condi- tion as to the health of her passengers and crew. After a vexatious delay an examination into the condition of the "Ohio" was made, (which should have been done before her arrest,) and it was found that there was no cause for subjecting her to quarantine. The Captain General, even on his own statement of the affair, has, in my opinion, entirely failed to excuse the conduct of the authorities of Havana towards the "Ohio." Though I am unwilling to characterize their con- duct as intentionally vexatious I cannot but regard it as unjustifiable ; and, being so, I anticipate that the government of her Catholic Majesty will be willing and ready to repair the injury sustained by the owners of the steamer. You are instructed to demand reparation for the injury thus sustained. It is stated in the Captain General's letter to Mr. Calderon that he has consented to allow our consul at Havana free access to his person. This avails nothing so long as our injured citizens are denied access to our consul in order to make him acquainted with their grievances. In the papers submitted to Mr. Calderon it is distinctly stated that the officers of the "Ohio" were not permitted to have intercourse with the American consul. This allegation is not denied by the Captain General. There is no comment in his letter to Mr. Calderon upon this extraordinary fact, no denial of the allegation, and of course no at- tempted apology. Merely as an act of discourtesy it is a matter of grave complaint ; and, as it aggravated the wrong by prolonging the unjustifiable detention of the "Ohio," you will press it upon the atten- tion of the home government, not only as connected with the claim for indemnity, but as a proceeding calculated to disturb the existing friendly relations between Spain and the United States. This case not only calls for prompt redress, but will furnish an occa- sion for urging upon Spain the wisdom of entering into some proper arrangement for preventing the too often recurring vexations which the United States experience in that quarter. She cannot but listen re- CASE OF THE BLACK WARRIOR, ETC 77 spectfully to any suggestions having for their object to disembarrass our commerce with one of her colonial possessions in such close prox- imity to the United States, and to guard against occurrences calculated to impair the amicable relations of the two nations. You are directed, upon the receipt of this dispatch, to address a note upon the subject to the Minister of Foreign Relatiojis, acquainting him with the sincere regret the President feels at being called upon, so soon after entering upon his duties as Chief Magistrate of the Union, to re- monstrate against an occurrence which is, in some respects, not unlike the recent case of the "Crescent City." You will urge, in as forcible language as official courtesy will author- ize, upon the government of her Catholic Majesty, the claim for an in- demnity for the damages sustained, and obtain from that government an assurance that the Captain General will be instructed to enforce upon the subordinate authorities in Cuba a course of conduct more in accordance with those rules which are essential to an unembarrassed commercial intercourse, and more regardful of the rights and property of American citizens. Propositions have heretofore been submitted for some special regu- lations by treaty in regard to the commercial intercourse between the United States and Spain. A communication on this subject was made to Mr. Calderon, on the 5th of February last. I transmit herewith an extract from that communication, which will show you the objects of the proposed convention. It is desired to ascertain how far her Catho- lic majesty is disposed to entertain and to favor those propositions. It is confidently believed that proper treaty stipulations on that subject would go far to prevent the occurrence of difficulties, which hitherto have been too frequent, and of a character to disturb the peaceful rela- tions of the two countries. By the accompanying notices, cut from several American newspa- pers, you will see that some public excitement exists on the subject of another alleged "outrage" upon the American flag, in the case of the American schooner "Manchester," Captain Sterling, near the island of Cuba. The animadversions of the press you will perceive are very severe ; but the department has no account of the circumstances beyond what you will find contained in the annexed copy of an extract of a letter from Mr. Sharkey, the consul of the United States at Havana, of the 7th instant, and of a letter to him from the captain and mate of the "Manchester," which was enclosed in the consul's communication. It will be your duty, however, to direct the minister's attention in a pro- per manner to this transaction, respecting which further instructions will be transmitted, if deemed necessary, after the receipt of any addi tional information in regard to it. I am, sir, &c, W. L. MARCY. D. M. Barringer, Esq., &c, &c, &c, Madrid. 78 CASE OF THE BLACK WARRIOR, ETC U. S. Mail Steamship Company, New-York, March 20, 1853. Sir: I have the honor to transmit to you, herewith, the correspond- ence between Lieutenant Hartstene, United States navy, commanding United States mail steamship Ohio, and Judge Sharkey, United States consul at Havana. This correspondence furnishes the details of ano- ther outrage upon the flag and commerce of this country, committed by the authorities of Havana, and which I beg leave to bring to the attention of our government. Repeated insults and aggressions, on previous occasions, against the commission of which the ships, persons, and property, of American citi- zens have as yet been afforded no protection or redress, are renewed at any moment that caprice or hostility may dictate, to the great detriment of our commerce with the island of Cuba, in violation of treaty stipula- tions, and in disregard of the rights and interests of American citizens. In the present instance the Ohio was detained three days in the port or vicinity of Havana, in the most wanton manner, and under circum- stances degrading to our national flag; surrounded by a guard, all communication with the shore interdicted, and Captain Hartstene re- fused permission to communicate with the American consul, without the slightest excuse for such an outrage, the vessel exhibiting a clean bill of health, and having no contagious or infectious disease on board, and only such sickness (the Panama fever, the intermittent or fever and ague of our own climate) as has never before been subject to quar- antine or detention. I need not assure you that with the United States California mails on board, two millions and a half of treasure, and a large number of passengers, all American citizens, or the property of American citizens, this unwarrantable detention was the source of the greatest uneasiness, inconvenience, and loss to the trade and business of shippers and the public generally. I enclose also, for the information of our government, a statement drawn up, at the request of the passengers on board the Ohio, by B. McAlpine, Esq., formerly a citizen of Alabama, of standing and respectability, and an acquaintance of the Hon. W. R. King, and which would have been signed by all the passengers, had not Mr. McAlpine been detained on the island beyond the sailing of the Ohio, whilst on a visit to Colonel King. I have the honor to be, very respectfully, your obedient servant, GEORGE LAW, President. His Excellency Franklin Pierce, President of the United States. U. S. Mail Steamer "Ohio," In Quarantine, Havana Harbor, March 10, 1853. Sir: I regret exceedingly that the unwarranted and unprecedented conduct of the authorities of this place, in quarantining this steamer, should make it necessary for me to protest against this outrage, and to ask your intercession ; but, as I have on board a large and valuable amount of property, and the United States mails, I cannot do otherwise CASE OF THE BLACK WARRIOR, ETC. 79 than to at least state facts, that they may reach the supreme ruler of the island. This steamer left Aspinwall on the morning of the 5th instant, with four hundred and fifty-six passengers, about one hundred of whom were discharged railroad men, out of which number about twenty were sick with the Panama fever, (well known not to be contagious.) Since that time, to our anchorage this morning in this port, there has been no other case, and all the invalids are convalescing, with the exception of one very old man. I pledge my word, and that of the surgeon of the ves- sel, that there has been no other disease on board, and that there have been no deaths. Every steamer that ever entered this port from Chagres or Aspin- wall has had cases of the fever, and this is the first instance of quaran- tine for it. I must, therefore, most solemnly protest against the injus- tice of having United States mails and property delayed on so frivo- lous a pretext, and to demand, through you, that all the privileges and facilities guarantied, by treaty, to the vessels of the United States, be extended to this steamer. If continued in quarantine, we shall be de- tained here some four or five days, taking in sufficient coal to reach our destination, as we have only forty-five men that can be employed at that work. Respectfully, &c, H. J. HARTSTENE, Lieutenant U. S. Navy, commanding "Ohio." Judge Sharkey, U. S. Consul for Havana. P. S. — In continuance of the obstructions which this tyrannical and overbearing government have for sometime been opposing to steamers of this line, in charge of United States officers, and conveying her mails, we, after having been allowed to remain near our coal depot just long enough to commence work, and also some necessary repairs of machinery, are now ordered, at the expense of some ten tons of coal, and the partial loss of another day, to remove to the quarantine ground. Now, sir, as a lieutenant of the United States navy, acting under the orders of my government, I again most emphatically protest against all and each of the restrictions that have been imposed upon this vessel, that entered this port in distress, (short of coal,) with a clean bill of health, and having no deaths. Respectfully, &c, H. J. HARTSTENE, Lieutenant U. S. Navy, commanding "Ohio." Friday Morning, March 11. U. S. Mail Steamship Ohio, Havana, March 11, 2 p. m. Sir: I herewith enclose you a communication of yesterday's date, which, up to the present time, I have been denied the privilege of for- warding; and I have now furthermore to state, that to the injuries 80 CASE OF THE BLACK WARRIOR, ETC which an unjust detention of this vessel has caused, have been offered insults of the grossest nature to myself and the surgeon of this steamer by the informal manner of relieving her from a quarantine imposed contrary to the usages of the port, in defiance of our assertions, and without any examination of the ship on their part, until, within the last hour, we were visited by a Spanish naval surgeon in a private man- ner, to whose kind intercession we are, I presume, indebted for the concession now made to us (after a detention of thirty-two hours) of the usual facilities of the port. Understanding that a report is in exist- ence that I deceived the pilot, when entering the harbor, with regard to the state of this vessel, I unhesitatingly pronounce it a falsehood, as base as been our treatment since our arrival. I have to ask that a copy of these communications may be sent to the Captain General, with a request that he will inform me why we have been thus abused. Respectfully, &c, H. J. HARTSTENE, Lieutenant V. S. Navy, commanding "Ohio." Judge Sharkey, U. S. Consul for Havana. Consulate of the United States, Havana, March 12, 1853. Dear Sir : I this morning received your communication, in which you complain of the unnecessary detention of your vessel, caused by placing her in quarantine, and desire that the Captain General may be informed of this, and, if possible, that an answer may be obtained Irom him. The matter will be duly attended to, but I must say that there can be but little hope of obtaining an answer. If, however, I should be disappointed, it shall be duly communicated. I am, sir, with respect, yonr obedient servant, W. L. SHARKEY. Capt. H. J. Hartstene. United States Mail Steamer "Ohio," . New York, March 18, 1853. Dear Sir : I regret exceedingly that this steamer, though perform- ing well, has been frustrated in the due delivery of her mails by an unwarranted detention of two days in the port of Havana by the au- thorities, whom, you will perceive from their subsequent acts, did it to gratify their piques, and to further display what little respect or regard they have for a government that will countenance them as a civilized and honorable nation. We left Aspinwall on the forenoon of the 5th instant, with the Cali- fornia mails, treasure, and 456 passengers, and at midnight of the 9th were off the Moro, awaiting daylight, agreeable to the regulations of the port. Shortly after mooring to the buoy near our coal depot, we CASE OF THE BkACK WARRIOR, ETC 81 Were visited by the health officer ; and, in defiance of a clean bill of health, and being distinctly informed by myself and surgeon that there were no contagious or infectious diseases on board, nor had there been any deaths; that we had but a few more than the usual proportion of cases of Panama fever, all which, with one exception, had improved during the passage ; and that we had the United States mails on board, were ordered to remain where we were in quarantine, communicating with no one, and that we could have coal only by taking it from lighters with our own crew, which, in our crowded state, would have caused much delay. Mr. Johnson, with his usual promptitude and energy, after hav- ing exhausted all means of relieving us from this outrageous treatment, commenced supplying us : and when fairly under way with this, as well as some necessary work on the machinery, we were, in continuance of their overbearing persecutions, ordered to remove to the quarantine ground, nearly a mile distant, for which it was necessary to cease ope- rations ; and, when ready for starting, we were (after having been in the harbor thirty-two hours) suddenly and informally relieved from all restrictions. For this indulgence we are indebted to Doctor Don Jorge Ledo, of her Catholic Majesty's navy, who nobly, disinterestedly, and unofficially, examined the steamer at the risk of being sent from the island, should there be any contagion on board. We were, you will perceive, quarantined without there being any measure taken to determine the correctness of the surgeon's and my own assertions, and then relieved on an impartial and private survey, in total disregard to all feelings of delicacy or respect for us or our flag. Your obedient servant, H. J. HARTSTENE. M. O. Roberts, Esq., Agent U. S. M. S. S. Company, N. Y. P. S. — We left Havana at half-past nine on the evening of the 12th Instant, and arrived at Sandy Hook at 6 20 p. m. on the 17th, where, in consequence of a dense fog, we were compelled to anchor. I en- close you, herewith, copies of the correspondence between Judge Sharkey, United States consul at Havana, and myself, in relation to the detention of the " Ohio" by the authorities of that port. Yours, respectfully, H. J. H. The following statement was drawn up by B. McAlpine, esq., for- merly of Alabama, at the request of the passengers on board of the United States mail steamship Ohio, while detained by the unwarranta- ble conduct of the Cuban authorities ; but when the steamer was per- mitted to come to her wharf Mr. McAlpine, having proceeded at once to visit Col. King, did not return in season to take the Ohio on her voy- age to New York ; otherwise, Mr. McAlpine gives the assurance, the •statement would have been signed by every passenger, 456 in number. 6 82 CASE OF THE BLACK WARRIOR, ETC Bay of Havana, March 12, 1853. The undersigned, passengers on board the mail steamship Ohio, bound for New York, deem it a duty we owe to the citizens of the United States and the authorities at Washington, to give a correct history of the conduct of the officers of this port on the arrival of the ship. The ship arrived at the Moro castle early on the morning of the 10th instant, and was boarded by a pilot, who conducted her near to where she had to coal. After waiting some time the health and port officers came alongside, but did not enter the ship. They were met by the captain, Lieutenant Hartstene, United States navy, and the surgeon of the ship, and informed that there was no contagious disease on board the ship, and that there had been no death on the voyage. They were also informed that the ship had on board the United States mails, and that she required 400 tons of coal to enable her to proceed with the same. The port officer declared that the ship must land at the wharf on which her coal was deposited, and placed an armed guard to pre- vent the passengers from going on shore or having any communication therewith. The captain then requested that a letter should be con- veyed to the American consul on shore, which was totally refused. All communication was entirely cut off from shore, and the authorities re- fused to allow any aid from the shore to coal the vessel, stating that the laborers on board must coal the vessel by lighters. The captain made several efforts, through the agency of a gentleman who came within speaking distance, to get the order rescinded, assuring the authorities through him that there was no disease on board, but received for an- swer that the ship must remain where she lay, and take her coal on board with her own laborers. The captain again requested to have communication with the American consul and the company's agent, informing the authorities that there were important documents on board for the Vice President of the United States of America, Mr. King, and the American consul. They were informed at the same lime that there were about fifty passengers who desired to go to New Orleans ; to all of which they paid no sort of respect. Early on the morning of the 11th instant the port officers came within speaking distance and ordered the ship into quarantine, distant about two miles from where she then lay. At the time of this order the captain had two barges alongside with coal. He informed the writer of this that he intended to obey the order as soon as the coal was on board, the consequence of which would have detained the ves- sel two or three days longer, being compelled to coal by the tardy pro- cess of lighters. At 4 o'clock on the afternoon of the 11th, a physician, said to belong to the Spanish navy, seeing our situation, and having more of the milk of human kindness than many of his countrymen, vol- unteered to come on board, and promised the board of health of Ha- vana that if there was contagion on board he would remain on the ship as passenger for New York. In a few moments after the physician came on board, the ship was set at liberty, and very soon after the passengers were permitted to go on shore by paying one dollar for a pass each. We have endeavored in the above to give a correct history of the proceedings of the officers of this port, and as American citizens we are compelled to condemn their actions from beginning to end. We CASE OF THE BLACK WARRIOR, ETC 83 are grieved to think that while our own government most scrupulously adheres to her treaty stipulations with all other powers, the government of Spain, through her officers, so far forget the obligations they owe to our government as to harass her citizens who happen to travel through their country, and prevent the free passage of the United States mails from point to point by such obstructions as we have above recited, and which were the more annoying and vexatious from the fact that no cause existed for them, and that no ship, so far as we can learn, has been quarantined under similar circumstances. Altogether the steamer was detained in the port of Havana three days. [Extract.] Department of State,, Washington, February 5, 1853. Sir : I have been directed by the President to bring to your consid- eration the subject of the commercial relations between the United States and Spain, with a view to their regulation by treaty. The treaty of 1795 is, what it purports to be, not a commercial treaty, but a treaty of " friendship, limits, and navigation." Such of its provisions as re- late to commercial intercourse are few in number, and have, for the most part, specific reference to the state of things which then existed, and has since materially changed. It was, however, apparently the intention of the two governments to make their commercial interests the subject of negotiations at some future period ; and in the 22d arti- cle it is provided, that " the two high contracting parties, hoping that the good correspondence which happily reigns between them will be further increased by this treaty, and that it will contribute to augment their prosperity and opulence, will in future give to their mutual com- merce all the extension and favor which the advantage of both coun- tries may require." In fulfilment of this anticipation the commercial intercourse between Spain and her possessions in this hemisphere, on the one side, and the United States on the other, has greatly increased, but nothing has been done for its protection or regulation by conventional arrangements. The treaty of 1795, if applicable to the colonies of Spain, which is not admitted by the government of her Catholic Majesty, would by no means meet the exigencies of the commerce which has grown up since that time. The United States government has never acquiesced in this limita- tion of the treaty of 1795 ; but so long as it is maintained by the govern- ment of her Catholic Majesty the main object of a treaty is lost, which is, by mutual agreement, to regulate the matters to which it relates. The commercial relations of the United States with the Spanish islands near the American continent are of great importance, and daily becom- ing more so, and interests of great moment are involved in them. /There is, for instance, scarcely any foreign port where the consular office is so important as at Havana. Even if the treaty of 1795 ex- tended to Cuba, the summary provision which it makes for the consular 84 CASE OF THE BLACK WARRIOR, ETC office would fall short of what is desirable in the existing state of things. It would be a matter of great mutual convenience to the local gov- ernment of Cuba, to the government of the United States, and to all persons having occasion to resort to the island, if the consul were al- lowed to extend his functions to others than tradesmen and seamen, (to which they are now confined,) and to exercise some of the powers of a diplomatic agent. The almost vice-regal authority habitually con- fided to the Captain General of Cuba, removes the only obvious objec- tion to such an arrangement. It would seem, in fact, that the right of treating with the representative of a foreign government was neccessary to the due exercse of the great discretionary powers with which the Captain General is clothed. To confine the consul to the ordinary duties of the consular office is to deprive the Captain General of one of the greatest facilities for carrying on his government. Recent events strikingly illustrate the justice of these remarks. Had the United States consul been authorized to treat with the Captain General, the late difficulties relative to the " Crescent City," which at one time as- sumed a formidable character, would not probably have arisen. There are other subjects of much importance which require to be regulated by convention between the two governments : among these are the vexed question of discriminating tonnage duties, the rights of American citizens residing in the colonies under a " carta de domicilia," the administration of the estates of deceased Americans, the port charges on vessels engaged in trade with the Spanish islands, and postal communication. It is highly desirable that interests so import- ant should be the subject of express stipulation, and not dependent on usage, which may be revoked at pleasure and the discretion of authori- ties frequently changed. The President, in proposing to negotiate a convention on these subjects has no motive but to obviate causes of dissension and to promote a good understanding between the two governments. Though the United States are remote from Spain, her colonies are our near neighbors, and every consideration that ought to influence the conduct of powerful States applies to our intercourse with them. I avail myself of this opportunity to renew to you the assurance of my distinguished consideration. EDWARD EVERETT. Senor Don A. Calderon de la Barca, Sfc, ^c, &fc. [Extract.] [No 29.] Consulate of the United States, Havana, April 7, 1853. The reported search of the American schooner Manchester seems to be causing some excitement ; and that the government may be placed in possession of all the evidence that this office can furnish, I enclose you a letter received by me from the captain and mate. This contains all CASE OF THE BLACK WARRIOR, ETC 85 the information I have on the subject ; and you will perceive that it is very imperfect. The letter was delivered to me by a Spanish pilot, several days after its date, who demanded the sum of thirty dollars, which, of course, I did not pay. The vessel did not touch at this port. # * # # # * * # I have the honor to be, with great respect, your obedient servant, W. L. SHARKEY. Hon. Wm. L. Marcy, Secretary of State. Consulate of the United States of America, Havana. On this seventh day of April, A. D. 1853, personally came and ap- peared James Otis, master of the ship Harriet, of Bath, (Maine,) and made the following statement, which he would have made the day the said ship was entered in the consulate of the United States, but he, said master, saw that the consul was busy investigating a case against some sailors, to wit : On the thirty-first day of March last, being about thirty miles to the westward of the Double-headed Shot Keys, early in the morning, I saw a steamer and a hermaphrodite brig about seven or eight miles to the northward of me ; the steamer was running different courses, but after a short time she commenced to steer about the same course that I was ; after an hour, or an hour and a half, I saw that she made sail ; an hour after that she fired a shot, which I saw strike in the water, right in the range of us ; I then ordered our colors set ; but be- fore the colors were up, she fired again ; we then took in sail and hove to; after the steamer got to within about a mile of us, we saw that she had English colors flying ; she then soon came up and hailed us, and asked where we were from and where bound ; I told them we were from Savannah, bound to Havana ; some officer on board then said he was going to send a boat on board of us ; I told him I did not care what he sent ; soon afterwards the boat came, with two officers in her ; I was in my cabin ; the mate came in and said the officers wanted to see me ; I went out, and they said that they wanted to take a look around the vessel ; I told them they had taken the liberty to stop me on my way, and I supposed they would do as they had a mind to ; I asked them if anything new had taken place, that they were cruising, stopping a vessel on her lawful voyage ; they said that they were cruising to see that their treaty was not infringed ; after they had searched the vessel all round the house, forward, and looking down the hatches, they asked me for the ship's papers ; I allowed them to see them, but observed that I did not know of any right they had to de- mand them ; afterwards one of the officers went down between decks, and, lastly, went into their boats and left us ; I was detained about one hour and a half. JAMES OTIS. Sworn to and subscribed before me by the said master. W. L. SHARKEY, Consul of the United States. 86 CASE OF THE BLACK WARRIOR, ETC I, William L. Sharkey, consul of the United States of America for the city of Havana, and the dependencies thereof, do hereby certify- that the copy of a sworn statement, written on this and the two prece- ding pages of this sheet of paper, is a true and correct copy of the origi- nal of record in this consulate. In testimony whereof, I hereunto subscribe my name and affix the seal of my office, at Havana, this seventh day of April, A. D. 1853. W. L. SHARKEY, [l. s.] Mr. Barringer to Mr. Marcy. [Extract.] [No. 144.] g Granada, June 10, 1853. Sir : Your dispatch No. 77, of the 19th April last, reached the lega- tion during my temporary absence from Madrid. I immediately caused a copy of the same to be forwarded to me at this city. On the 6th instant I addressed to the Spanish government a note on so much of the same as relates to the affair of the United States steamship " Ohio." A copy of this note will hereafter be communicated to the Department of State, with a copy of the answer of her Catholic Ma- jesty's Minister of State for Foreign Affairs, when received. Judging from my knowledge of the past and present policy of the Spanish gov- ernment in reference to the affairs of the island of Cuba, and especially those connected with the commercial intercourse between that island and the United States, I regret to say that I anticipate no very satis- factory answer to this new demand for explanation and indemnity. It is the settled purpose of Spain to keep the island as independent as possible of all connexion with the United States. To this end the Cap- tain General is intrusted with almost sovereign authority in the gov- ernment of the island, and the government here are always disposed to sanction whatever he may do or cause to be done — or, rather, they seldom, if ever, disapprove any measure he may have adopted, and which, in his opinion or that of his subordinates, may be deemed neces- sary for the protection and security of the island. On my return to Madrid, in the course of a few days, I will also call the attention of her Majesty's Minister of State to the case of the Amer- ican schooner "Manchester," Captain Sterling, near the island of Cuba, referred to in your dispatch. I have the honor to remain, with the highest respect, sir, your obe- dient servant, D. M. BARRINGER. Hon. W. L. Marcy, Secretary of State. when the operation of getting the coal on board had already begun, the officers of the port came again within speaking distance of the vessel, and ordered her to remove to the ordinary quarantine ground, at some distance from where she then lay ; to do which it was necessary to cease the operation of taking in coal, and to generate steam at great additional expense and delay. However, the captain of the steamer prepared to obey ; but, to use his own words, " when ready for starting, we were suddenly and informally released from all restrictions." For this favor the ship's company were indebted to Doctor Don Jorge Ledo, surgeon of her Majesty's fleet at Havana, who, seeing the unusual and unjustifiable situation of the ship, " nobly and disinterestedly" volunteered to go on board and examine her, saying to the officers of the, board of health, that if there should prove to be any contagion on board he would remain on the ship. A few minutes after this gentleman had left her, at about 4 o'clock in the afternoon of the 11th April, the ship was set at liberty. And Captain Hartstene concludes his narrative to the owners of the ship with these words : " We were, you will perceive, quarantined without there being any measures taken to determine the correctness of the surgeon's and my own assertions, and then relieved on an impar- tial and private survey, in total disregard to all feelings of delicacy or respect for us or our flag." Altogether, the steamship was detained in the port of Havana, according to the statement of her owners, for three days. 90 CASE OF THE BLACK WARRIOR, ETC. [Translation.] First Department of State, Palace, June 15, 1853. Sir : I have had the honor to receive your excellency's note, dated the 6th instant, which was accompanied by a relation of what is sup- posed to have occurred at the Havana, in connexion with the momen- tary delay in that port of the United States mail steamer " Ohio." The government of the Queen, my lady, might reasonably hope that such an occurrence — so simple in itself, and subject in every point to the sanitary regulations which are observed scrupulously, and without exception, in all the ports of the island of Cuba, with the vessels of all nations — would not take an official character, and much less that of a reclamation by the government which your excellency represents. Nevertheless, taking into consideration that the owners of the said steamer, who are also owners of the " Crescent City," to which your excellency alludes in your note, have manifested before now their de- cided purpose to excite embarrassments and difficulties between the two countries, the government of her Majesty thought proper to antici- pate, and directed spontaneous and honorable explanations to Wash- ington, through the Spanish representative in that capital, in order to avoid that the mind of the President of the United States should by any possibility be surprised by the relation, perhaps passionate and ■« inexact, of the director of the Steamship Company. The note of your excellency makes me suppose that these explana- tions did not arrive in time, and consequently I see myself obliged to reply to it. In order to do this, I shall begin by refuting the principal statements contained in the narrative which your excellency encloses to me, which are very far from agreeing with the data and information which have been communicated to me by the proper authorities of the island of Cuba. According to these data, (in this point agreeing with the narrative which your excellency transmits to me,) the detention of the " Ohio" was not three days, as is stated in your note, but thirty hours — the time necessary and indispensable in order to be assured whether or not the fever which existed on board the ship, and of which one of the passengers had died, had any malignant and contagious character which might put in peril the public health of the island. On making the health visit to the "Ohio," it was known by the state- ment itself of the physician aboard that there were various passengers sick of the fever which prevails on the coasts of Chagres. Nevertheless, the deputation of health, taking into account the pro- visions of the third article, chapter second, title second, of the general regulations of that service, determined that the vessel, which had no passenger for Havana (the which is worthy to be remarked) should remain simply isolated, passing to the quarantine station in order to provide herself there — with proper precautions — with the coal which she required. But in view of the reasons which the consignees of the said steamer set forth, soliciting that she should be permitted to go alongside one of CASE OF THE BLACK WARRIOR, ETC 91 the wharves to take in the combustible, the superior board of health, assembled for that purpose, resolved that Don Jorge Ledo, auxiliary physician of the board, and first professor of the fleet, should be sent on board to inform himself of the state of health of the vessel, who made declaration that there existed, in effect, aboard of her an intermit- tent fever, of which one individual had died the same day of the exami- nation, but that this fever had no malignant nor epidemic character. By virtue of this, the board being desirous to conciliate, in whatsoever was possible, private interests with the very sacred and preferable interesls of the public health, permitted from that moment free pratic to the " Ohio ;" and in this connexion I cannot let pass unnoticed the unfounded statement set forth in the relation which your excellency encloses to me — that the vessel's having been left suddenly free from all restriction was owing to the efforts of Dr. George Ledo, surgeon of the fleet of the United States at the Havana, who lent himself disinter- estedly to go on board and examine her, because it is exactly this same Ledo, health physician, who, by the express order of the superior board, went on board of the "Ohio" in order to make the report which must serve as a basis to the resolution which the said corporation should adopt. This manner, so intentionally inexact, of presenting the fact, by the captain of the "Ohio," was, without doubt, with the purpose of taking away from the determination of the board that character of spontane- ousness and of meditation which it really had, in order to cause it to be believed that suddenly, and without any formality, said vessel was ad- mitted to free pratic, through the officious representations and the efforts of a surgeon of the fleet of the United States. By this simple and unimpassioned relation of what happened with said steamer, your excellency will easily comprehend that the deten- tion of the " Ohio" proceeded from the manifestations of her own physician ; that it was well founded, seeing that there were sick on board, and even that the death of one individual had occurred ; that she was considered suspicious only so long as there was no certainty had of the nature and class of the diseases, being placed voluntarily and without delay in free communication as soon as the report was re- ceived from the physician appointed for the inspection and examination of the sick on board; neither the deputation nor the superior board of health being able to dispense with such proceedings of prudence and precaution without infringing the clear and precise regulation which governs this matter. In this connexion your excellency has thought proper to recall the case of the " Crescent City," considering it as in some respects like that now under discussion, in order to deduce conclusions concerning the conduct observed by the authorities of the Havana, which, as your excel- lency says, is calculated to disturb the amicable relations between Spain and the United States. The only analogy which, for my part, I encounter between these two cases is, that in the case of the " Crescent City" the government of your excellency is recognised explicitly, as I flatter myself it will on this occasion, the right of the Captain General of the island of Cuba to take, by virtue of the powers with which he is invested, whatsoever measure, 92 CASE OF THE BLACK WARRIOR, ETC. however restrictive may he its character, which he may consider necessary for the preservation of the island whose government is given him in charge. Then, as in the present case, that which alone was sufficient, and is sufficient, for the conscience itself, and the justification of the govern- ment of her Majesty, is, to show that the measure adopted as means of protection and security, whether for the defence of the island, or to guard her from the ravages of a contagious disease which exists, or which it is suspected even may exist on board a vessel, are abundant motives for taking those reasonable measures of precaution dictated by the vigilance and the duty of the authorities of the island of Cuba.* I do not perceive, in truth, what benefit can result to Spain and the United Slates from recalling events which were appreciated in their just value at their time, and which only signify the deliberate purpose of an individual to sow motives of dissension between two friendly governments. But as your excellency has judged it opportune to invoke this remem- brance as an argument against the authorities of the Havana, and in order to express fears that their conduct may appear calculated to dis- turb the friendly relations between the two countries, this supposition authorizes me to manifest to your excellency, in my turn, with all the frankness and faithfulness of an honest man, guided by the desire of dis- sipating unfavorable prejudices which might some day be converted into a motive of formal disagreement, that the director of the Steam- ship Company, Mr. Law, is he who is constantly, and without reason, provoking contentions and difficulties with the perverse intention of destroying the perpetual! intelligence which exists between the two governments ; that whilst no reclamation is presented to the govern- ment of her Majesty by the commerce of any nation of the world — of the many which trade with Cuba, nor by the lines of English steamers, nor even by the private vessels of the United States — the line which Mr. Law directs is that which excites and originates every day such lamentable difficulties. Necessary is it, therefore, that I should call the attention of your excel- lency seriously to the repeated complications which the presence of said steamers in the island of Cuba offers to the two governments; because, if this company is to be the apple of discord, the government of her Majesty may one day consider it preferable, for the preservation of her amicable relations with the United States, to withdraw the privileges which the steamers of the line of Mr. Law now enjoy, and subject them to precise and definite conditions, in the use of her imprescriptible rights . of sovereignty. With respect to the momentary detention of the "Ohio," after what I % have manifested, in order $f favor the entire lack of foundation for the $ complaint of the proprietor of this vessel, it would remain for me only *The grammatical or rhetorical fault in this sentence, which makes the measures adopted to be " the abundant motives for taking those reasonable measures," &c, is faithfully trans- lated as it exists in the original. H. J. PERRY, Translator. f The original is " perpetua," but there is every reason to suppose this is a clerical error, and should be perfecta. The translation would then be " the perfect intelligence," &c. CASE OF THE BLACK WARRIOR, ETC. 93 to leave clearly written, in this note, the perfect right which Spain has, like every independent State, by the principles of the law of nations recognized by the publicists of all countries, including those of the United States, to establish the rules to which the vessels which arrive at her ports must be subject ; this right being even more respectable when it has reference to the preservation of the public health ; but the Ame- rican government is too just, and too intelligent, to ignore on this occa- sion principles so generally accepted, and not to easily understand that the superior authority of the island, of Cuba could not, in any case, in- terpose in a matter of the dispositions made by the board of health, subject to the regulations in force. We do not pretend, nevertheless, that these are the most perfect ; but such as our system is in this point, to it are submitted the Spanish commerce, and that of all the nations which trade with us ; it not be- ing possible to make an exception in favor of the United States, with- out the exceptions coming to be converted into the general rule ; and however regretful it may be for Spain not to be able to be agreeable to the citizens of the Union, and what is more, even when these dis- positions might exert an influence in the diminution of our commercial relations with the confederation, it would be necessary for us to submit ourselves to this inconvenience as a condition of the preservation of the public health. For the rest, the government of her Majesty, constant in its purpose of facilitating commercial intercourse in the island of Cuba, will renew with pleasure to the Captain General the recommendation that foreign vessels are to be molested as little as possible in that island. Very grateful it would be for me that the considerations which I have expressed should be of influence in the mind of the American government, so that it might listen in future with little confidence to the complaints and inexact representations of badly intentioned people ; flattering myself that it will do justice to the sincere desires and inten- tions of Spain to cultivate intimate and friendly relations with the United States. I renew to your excellency, on this occasion, the assurances of my most distinguished consideration, &c, FRANCISCO SEPtSUNDI. To the Minister Plenipotentiary of the United States. Legation op the United States, Madrid, June 23, 1853. Sir : I have the honor to acknowledge the receipt of your excel- lency's note of the 15th instant, (which, however, did not reach this legation till the 20th of the same,) in reply to mine of the 6th instant, on the subject of the detention of the United States steamship " Ohio," at the Havana, in the month of March last. The manifest and material differences in the statements of facts relative to this detention, as pre- 94 CASE OF THE BLACK WARRIOR, ETC sented respectively to the governments at Madrid and Washington, together with the circumstance that the government of her Catholic Majesty, anticipating that difficulties and embarrassments might possibly grow out of this occurrence, had, previously to the receipt of my note, deemed it proper to address, in the language of your excellency, vol- untary and favorable (leales) explanations to the government of the United States through the Spanish minister at Washington, render it, on my part, prudent, as well as respectful to both governments, that I should reserve for a future occasion, if necessary, observations which, but for these considerations, it would now be my duty to make. It is to be hoped that the circumstances of the affair may be more fully and exactly inquired into ; and I shall be most happy if, from this exami- nation of the character of the note already addressed to the government of the United States, (of whose contents, however, I regret I am not more particularly apprized than through the general terms applied by your excellency,) this negotiation shall result in a satisfactory and ami- cable termination, alike honorable to both nations. Justice and truth, however, require that I should not omit at present to say something in reply to remarks of your excellency, which must have proceeded from misapprehension on the part of your excellency, or incorrect informa- tion on the part of others. It is not true, as supposed by your excel- lency, that the statement of facts making the ground of this complaint originated with Mr. George Law, the owner, or one of the owners, of the line of steamships to which the " Ohio " belongs. Whilst the government of the United States must be in all cases the sole judges, on their own responsibility, as to the authenticity of the sources of any knowledge on which they may act, I feel it due to the parties concerned to state, that the information on which they have acted in this case has been obtained from the officers and passengers aboard the vessel at the time of the occurrence. Mr. Law states no particular, except as to the length of time the vessel was detained, (and this is not of his own knowledge,) which he alleges to have been three days. In this, not being present, he may well have been mistaken by misapprehending the account given by Lieutenant Hartstene, of the United States navy, then in command, who states, that " the Ohio, at midnight of the 9th instant, (March,) was off the Moro," and that she left Havana" at half-past nine of the evening of the 12lh instant ;" thus making the entire detention at that port three days, less two and a half hours. But this same officer states, (in this, as to the length of time only, nearly agreeing with the statements in your excellency's note,) that the actual time of detention caused by the unnecessary and unreasonable conduct of the local authorities was thirty-two hours. But the length of time itself is not a material consideration, except as to the measure of injury sustained by the detention. If the vessel had been detained only one hour by frivolous pretexts, or by the un- necessary and vexatious, and groundless conduct of the authorities, the wrong would be as clear, though the injury might not be so great, as if she had been thus detained three days. In both cases the principle of objection would be the same. CASE OF THE BLACK WARRIOR, ETC 95 The gist of the complaint here is, that the usual course of proceeding in such cases having been pursued by the authorities ; with a clean bill of health from the port of departure ; with the unequivocal declarations of the proper officers and surgeon of the ship, asserting solemnly and formally that there was not, and had not been, any disease of a con- tagious, epidemic, or malignant character on board, and no death on the voyage ; that there existed only cases of the " Panama" or inter- mittent fever, usually if not always found on all the steamers from Chagres, and for which no vessel had ever heretofore been placed in quarantine or kept from communicating with the shore ; and, further- more, that without any examination whatever, but in defiance and in reckless denial of all these allegations, the ship was detained thirty- two hours, ordered to quarantine, and then, after a momentary inquiry and informal investigation of her condition, she was immediately dis- charged, in a most informal manner only, as the officers alleged and believe, through the voluntary and disinterested conduct of a surgeon of her Majesty's fleet at the Havana, who went on board, confirmed the statements made by her officers, and thus caused the authorities to do what they ought to have done, and what they could have done at first, and without this uncalled for delay, so annoying and inconvenient to the large number of passengers, and so detrimental to a vessel hav- ing on board the mails of the United States, and a very large amount of treasure destined for another and distant port. It was an aggrava- tion of the complaint, and a discourtesy to our flag, that during all this time none of the officers of the ship were allowed to have even the slightest communication with the American consul. In this connexion, I cannot forbear to refer to an error into which your excellency has, doubtless unintentionally, fallen, through the mis- take of some subordinate — most probably the translator of the depart- ment over which your excellency presides — in supposing that the state- ment which accompanied my former note on this subject represented the surgeon who thus generously interfered for the release of the vessel as belonging to the fleet of the United States, instead of to that of her Catholic Majesty. The statement was directly the contrary, as your excellency will per- ceive by referring to the same. Having understood that this was an inadvertent mistake, I dismiss so much of your excellency's observations as relate to the same, and the "unfounded statement set forth" {esjpecie asendata) and intentional misrep- resentation so unjustly charged against the captain of the "Ohio," with the single suggestion that it is always safer to take a charitable view of fallible human nature than to indulge in constructions so disparaging to the character and good name of a person against whom nothing has been heretofore alleged, and who, as in the case before us, is believed to be worthy of every confidence and esteem. Your excellency calls special attention to the circumstance that there was on board " no passenger for the Havana;" and it is thus left to be inferred that there was no necessity for personal communication with the shore, when the fact is that there were passengers, believed to be some fifty in number, bound for New Orleans, who had to land at the Havana 96 CASE OF THE BLACK WARRIOR, ETC. on their voyage to the former city, and who did, in fact, thus land, with others on board the ship, by paying one dollar each to the local author- ities for this permission. Your excellency refers to the circumstance that there was a death on board ; but if so, the Spanish surgeon himself states that it took place on the day of the examination made by him, and not before, or on the arrival of the vessel, when she was ordered to be detained by armed force from all communication with the shore. He further states that this individual died of intermittent fever ; and that there was no contagious or rnalignani disease on boards thus promptly verifying the original statements of the surgeon and officers of the ship, which could have been as easily and effectually done at first as after this unnecessary detention. Your excellency complains of Mr. George Law as being disposed to excite dissensions, and that he is constantly and unreasonably provok- ing contentions and difficulties between the two countries ; and your excellency intimates that it may become the duty of her Catholic Majesty's government to withdraw the privileges extended to this line of United States mail steamships, and subject it to new conditions and restrictions. If the embarrassments to which the line has heretofore been sub- jected are to continue, it may be that Mr. Law may deem it his duty and interest to anticipate the action of her Majesty's government, and voluntarily withdraw his ships therefrom, instead of availing himself longer of these privileges, provided he can be absolved from his con- tract with the United States, who are also deeply interested in the transportation of the public mails on board the vessels of this line, be- sides the general duty of giving just and ample protection to the citizens of the republic and their property, wherever to be found. I do not suppose that the course pursued towards the vessels of this line by the local authorities is expressly so intended; but it certainly may have that effect in the end if allowed to be continued by the gov- ernment at this court. It is not my duty nor my purpose, in this correspondence, to become the defender of Mr. Law. He may have committed errors, as others have. I am here solely as the representative of the United States, to fulfil their instructions, and to take care, within the sphere of my duties, that the just rights of all their citizens, however humble or exalted, however rich or poor, are fully and fairly maintained and defended. But I cannot do less than say to your excellency that in the case of the " Crescent City," as well as in this of the " Ohio," the only two in- stances in which Mr. Law has appealed to his government on account of occurrences at the Havana, the justice of his requisition has been admitted by the United States, who believed that they had good ground of complaint in each case against the authorities of Cuba, and made corresponding demands for satisfaction and redress from the govern- ment at Madrid. Your excellency seems to object that I should have referred in this connexion to the case of the " Crescent City." Believing, as the actual result demonstrated, that there was no well-founded ground for the CASE OF THE BLACK WARRIOR, ETC. 97 action of the Cuban authorities in either case — in the case of the " Ohio " that there was no contagion or other cause to justify the deten- tion and order to quarantine ; and in the case of the " Crescent City " that Purser Smith did not write, transmit, or have any knowledge of, or •agency in, the newspaper articles complained of; and that if he had, it was no reason why the ship should have been prohibited from entering the port of Havana to land her passengers and deliver her mails ; and believing also that these proceedings were calculated, by their very na- ture, and their occurrence in quick succession, to disturb the friendly relations of the two countries — it was most natural and proper, in the opinion of the undersigned, that the analogy between them should be alluded to and commented upon in this correspondence. I must be al- lowed to remind your excellency, too, that the answer of her Majesty's government in the case of the "Crescent City" was not satisfactory to that of the United States, and was passed over at the time without fur- ther correspondence and negotiation, solely from the circumstance that the Captain General had revoked the order which had produced the difficulties ; and in the further hope that her Majesty's government, seeing with regret, as do the United States, the occurrence of these embarrassme#Ls, might be disposed to enter upon some new and mutual arrangement by which the commercial interests and intercommunica- tion between the Spanish colonies and the United States might be placed upon a better and safer basis for the continuance of harmony, and for the reciprocal advantage of both countries. I cannot forego the occasion also to remark, that while the government at Madrid were approving, and, as would seem from your excellency's note, still con- tinue to approve, the conduct of the Captain General in the affair of the "Crescent City," and objected to by the United States, that officer himself had seen the error he had committed, repealed the order which had given so much trouble, and allowed the entry of the vessel with the "obnoxious Purser Smith on board;" thus voluntarily and sub- stantially admitting the justice of the complaint of the United States, and that such an order was not necessary tor the safety of the island, as at first alleged. Though his action was tardy, it was duly appre- ciated, and the subject w r as then permitted to drop. The United States would be the last to question the right of Spain, as an independent nation, or that of the Captain General of Cuba, under authority from his government, to do whatever they may deem necessary for the protection and security of the island, as regards either the public health or safety. But then, this right must be exercised, and this authority executed, with due respect to the rights of others, and consistently with the usages and laws of civilized nations, who, of course, are equally competent to judge whether these laws have been violated and these usages improperly infringed or not. In the case before us, the government of the United States believe there was as little reason to detain the "Ohio," from any consideration or fear of danger to the public health of the island, as there was to exclude the " Crescent City," from any pretext of insecurity to the public safety. The government of Spain may, if they think proper, interdict all com- munication, personal or commercial, with the United States, ; yet? surely, 7 98 CASE OF THE BLACK WARRIOR, ETC such an act could only be regarded as anything but a friendly one, and would have to be done under all the responsibility for the consequences which might justly be expected to flow from such an inimical proce- dure. And whether such prohibition be effected directly by law, or indirectly by annoyances and embarrassments to such intercourse, on the part of the authorities of Cuba, and not disapproved of by the me- tropolitan government, the pernicious and fatal result would be the same to rhe interests and good will of the two nations. Such a policy could but promptly end in the entire destruction of the peaceful relations of the two nations. Believing that the government of Spain will be well disposed fairly to review the conduct of their subordinate authorities upon all occa- sions, when respectfully required to do so by a friendly power, the government of the Union will continue to appeal to them for redress, whenever they have reason to believe that such conduct has been unjust and injurious to their citizens and the property of those whom it is their highest duty to protect and defend against injustice and wrong. When the facts of this case shall be fully and accurately ascer- tained, I think your excellency will discover that the%overnment of the United States have not been " listening to inexact" and "pas- sionate " statements of persons in whom "little confidence is to be placed," but that they have just ground of complaint against the authorities in Cuba, for which the government at Madrid ought to give prompt and plenary satisfaction and indemnity. I avail myself of this occasion to renew to your excellency the as- surance of my most distinguished consideration, &c, &c, &c. D. M. BARRINGER. His Excellency General Serstjndi, President of the Council and Minister of State. Mr. Barringer to Mr. Marcy. [Extract.] [No. 148.] Royal Site of San Ildefonso, July 16, 1853. Sir : I have the honor to transmit, herewith, copies of my note to the Spanish government of the 25th ultimo ; of their answer to the same of the 9th instant ; and of my reply to this note under date of the 14th instant, on the subject of the detention and search of the American schooner " Manchester," near Cape San Antonio, in the month of March ast. # # # # * Hon. Wm. L. Marcy, Secretary of State. CASE OF THE BLACK WARRIOR, ETC. 99 Mr. Barringer to General Sersundi. ■to' Legation op the United States, Madrid, June 25, 1853. Sir : I am directed to bring to your excellency's attention the cir- cumstances of a transaction which occurred near the island of Cuba, in the month of March last. It appears that on the 14th of that month, the American schooner "Manchester," captain Sterling, of Baltimore, on her voyage from Jamaica, while off the island of Cuba, about twenty miles from Cape Antonio, being driven there by adverse winds, was boarded by a Spanish cruiser of twelve guns. Twelve armed men were sent on board, who took possession of the vessel and carried her inside the reef, in spite of the remonstrances of the captain. They then demanded her papers and examined them ; and although these were found to be correct in all respects, they broke open her hatches and took out about a third of her cargo, but not find- ing any guns or ammunition on board, put the cargo back again. They then threatened to take the vessel to the Havana ; but after keeping her thus twenty-four hours under the guns of the cruiser, they decided to allow her to depaifc, getting out of the reef the best way she could. This, however, was not allowed until the captain had promised a pilot, for his services, the unjust demand of some thirty dollars, the cruiser being in company all the while. It is sufficient, at present, to bring this affair to the notice of your excellency, that a prompt investigation may be had in reference to the same, that proper explanation may be given to the government of the United States, and a just satisfaction made to the injured parties. It affords another illustration of the necessity of some mutual arrangement between the two countries, by which their commercial intercourse may be placed upon a more definite and satisfactory basis ; and also of the necessity of urgent and effectual instructions to the authorities in Cuba, to observe a course of conduct more in accordance with the recognised rules of commercial intercourse, and more regardful of the rights and property of American citizens. I avail myself of this occasion to renew to your excellency the as- surances "of my most distinguished consideration. Your excellency's obedient servant, D. M. BARRINGER. His Excellency General Sersundi, President of the Council and Minister of State. General Sersundi to Mr. Barringer. [Translation.] First Department of State, San Udefonso, July 9, 1853. Sir : I have had the honor to receive your excellency's note relative to the detention near cape San Antonio, in the island of Cuba, of the 100 CASE OF THE BLACK WARRIOR, ETC American schooner "Manchester," by a Spanish cruiser, which act took place, as your excellency states, of the 14th of March last. The government of her Majesty has not received any intelligence concerning the occurrence to which your excellency refers ; and in order to obtain such intelligence as precise as is necessary for forming a judgment in the case, I have addressed the Captain General 'of the island of Cuba, charging him to give information concerning the fact in question. Meantime, and limiting myself solely to the act of detention, stripped of the circumstances which may have intervened in it, the which are as yet unknown to me, as I have had the honor to state to your excellency, I cannot do less than call your attention to the grave considerations which make excusable any excess of zeal in the exercise of their duties, if any shall have occurred, on the part of the cruisers, charged with watching the coasts of Cuba. The especial situation of that part of the dominions of her Majesty, threatened by expeditions which already more than once have succeeded in touching the Cuban soil, exacts on the part of our vessels that no means nor efforts whatsoever should be omitted, within the limits of their jurisdiction, to keep off the danger of new incursions; and this, as your excellency knows, can only be attained by the examination and search of those vessels, national or foreign, which in passing those waters may excite suspicion for whatsoever reason. Without that, these suspicions once removed, the act of detention can be qualified as an offence, since it is authorized by the law of nations, by the duty of self-defence, and by a lamentable experience, that all the precautions are few for keeping at a distance the enemies of the public tranquility of the island of Cuba. Also, the obligations contracted by virtue of international compacts with respect to the abolition of the traffic of negroes, impose upon the Spanish authorities in those dominions the duty of watching carefully, so that the disembarcation of slaves may not take place ; and your ex- cellency will easily comprehend that, if those who devote themselves to this so lucrative traffic could in any way elude the action of the cruisers, as would happen the moment in which fetters should be put upon the latter by establishing exceptions, the important object of the abolition of the negro traffic would come to be illusory and impossible. Notwithstanding this, being desirons of avoiding every reasonable motive for reclamation on this point on the part of the United States, I have addressed to the Captain General of the island of Cuba the proper orders, so that the vigilance of the Spanish cruisers shall be exercised in such a way as to cause the least molestation possible to the vessels which may navigate the seas of the island of Cuba. 1 avail myself of this occasion to renew to your excellency the assu- rances of my most distinguished consideration, &c. FRANCISCO SERSUNDI. To the Minister Plenipotentiary, of the United States. CASE OF THE BLACK WARRIOR, ETC. 101 Mr. Barringer to General Sursundi. San Ildefonso, July 14, 1853. Sir: Your excellency's note of the 9th instant, on the subject of the detention of the American schooner "Manchester," by a Spanish cruiser, near Cape San Antonio, in the month of March last, has been received. Appreciating, in their fullest extent, the grave considerations urged by your excellency to show the necessity of constant vigilance along the Cuban coasts, for the purposes both of preventing hostile invasions and of suppressing the African slave-trade, and making all due allow- ance for the excess of zeal and want of discretion sometimes displayed by the Spanish authorities in performing these duties, 1 must still insist, as 1 think your excellency will more fully ascertain, upon an examina- tion of the facts in the particular case before us, that there was no jus- tification for the conduct of the officers of the cruiser, and that there was not the slightest ground of suspicion to authorize the seizure, vex- atious search, and other annoying circumstances, which attended the detention of the said American schooner. It is proper, however, to abstain from farther remarks for the present, and until her Majesty's governmeut shall be more fully informed as to the facts of the case, upon the inquiry which, I am pleased to learn, your excellency has directed the Captain General of Cuba to cause to be made. It is a source of much satisfaction, also, to learn that the necessary orders have been given to the same high officer, with a view to avoid, as far as possible, all improper interference with vessels navigating the waters of that island. I avail myself of this occasion, &c, &c. D. M. BARRINGER. Mr. Bairinger to Mr. Marcy. [Extract.] [No. 153.] San Ildefonso, August 18, 1853. Sir : I have the honor to transmit herewith, copies of a note from the Spanish government of the 10th instant, and of my reply to the same, of the 11th instant, being the final correspondence between the Spanish government and this legation on the subject of the detention of the United States steamship " Ohio," at the port of Havana, in the month of March last. It will be seen, that in my final note relative to this affair, about which I have heretofore felt it my duty, under the instructions from the department, to remonstrate in strong terms against the conduct of the authorities in Cuba, I have acted on the information communicated to me from the Spanish Foreign Office, that it had been amicably arranged at Washington. I have no reason to doubt the correctness of this in- formation, though I have no advice on the subject from the Depart- ment of State. 102 CASE OP THE BLACK WARRIOR, ETC I trust my course in this negotiation will meet the approbation of the government at Washington. I have the honer to remain, with the highest respect, sir, your obe- dient servant, D. M. BARRINGER. Hon. Wm. L. Marcy, Secretary of State. [Translation.] First Department op State, San 1 Idefonso, August 10, 1853. Sir : I have delayed answering the reply which your excellency was pleased to address me on the 23d of June last, upon the affair of the detention of the steamer " Ohio," in the port of Havana, because I was desirous to learn, beforehand, the estimation put upon this occurrence by the government of the confederation, in view of the explanations which Sefior Calderon de la Barca was charged to make. The situation of your excellency, as a mere executor of the orders of your government, obliged you to be persistent in the reclamation, however much your excellency might have comprehended that those orders had been dictated under the first impression caused by the com- plaints of the proprietors of the " Ohio;" but the government of her Majesty ought not to add warmth to a discussion for a motive so trivial and innocent, and on this account it addressed the explanations to the cabinet in Washington. I have now the satisfaction to announce to your excellency that, ac- cording to information from the minister of the Queen in Washington, Mr. Marcy had been convinced, that in the momentary detention of the " Ohio" there was no motive for complaint on "the part of the United States, having manifested to Sefior Calderon de la Barca that " there was no occasion for saying anything more upon this subject." I take especial satisfaction in considering as terminated a discussion so unnecessary, and in recognizing the good faith with which the government of the United States has done justice to the rectitude and impartiality of our intentions, and I avail myself of this opportunity to renew to your excellency the assurance of my most distinguished con- sideration, &c, &c, &c. FRANCISCO SERSUNDI. To the Minister Plenipotentiary, of the United States. Legation of the United States in Spain, San lldefonso, August 11, 1853. Sir: Your excellency's note of yesterday has just been received. I have sincere pleasure in being informed thereby that the explanations CASE OF THE BLACK WARRIOR, ETC- 103 which his excellency Mr. Calderon de la Barca had been instructed to make to the government at Washington, on the subject of the detention of the steamer "Ohio" in the port of the Havana, had proved entirely satisfactory. I am rejoiced at this termination of a discussion in which I have been the mere organ of my government, to fulfil their express instruc- tions ; and I am sure I shall have the hearty concurrence of your ex- cellency in wishing for a conclusion equally satisfactory to every sub- ject of negotiation which may arise between the two governments. I avail myself of this occasion to renew, &c, &c. D. M. BARRINGER. His Excellency General Sersundi, President of the Council and Minister of State ad interim. Mr. Soule to Mr. Marcy. [Extract.] [No. 6.] Legation of the United States, Madrid, March 8, 1854. Sir : I have the honor to transmit herewith the translations of two notes received from her Majesty's Minister of State, dated 15th Novem- ber, 1853, and 14th February last, upon the subject of the detention and search of the American schooner " Manchester," near Cape St. Anthony, in Cuba, by a Spanish armed cruiser. You will recollect that the original instructions of the department to my predecessor were not definite, nor did they authorize him to do anything more than to call the attention of her Majesty's government to the circumstances of the occurrence. Indeed, the facts of the case do not appear to have been at that time clearly known even to our govern- ment. They are now, however, sufficiently well ascertained, from the admissions contained in those two notes. The " Manchester," it appears, was found stranded, and the cruiser, after getting her afloat, entertaining some suspicion of her errand on the coast, although her papers were probably in every respect correct, broke open her hatches and took out a part of her cargo, when, finding nothing to warrant suspicion, the same was returned to its place, the "Manchester" piloted out into the open sea, and put at liberty. The Spanish government attempts to excuse this conduct by consid- erations connected with the peculiar condition of the island at that time, and in these last two notes seems to be desirous of diverting attention from the main features of the case to a transaction between the captain of the " Manchester" and the Spanish pilot, involving the payment of thirty dollars. In my answer to these notes, dated the 3d instant, I have thought proper to bring the affair back again to its true signification and bear- ings, saving the two questions involved, viz : that of indemnity to the owners of the " Manchester," and that of the insult offered to our flag. 104 CASE OF THE BLACK WARRIOR, ETC I have now the honor to refer the whole subject to you, for such further action, if any, as may appear proper to the government. [Translation.]' First Department of State, Palace, November 15, 1853* Sir : The Captain General of the island of Cuba, from whom infor- mation had been sought concerning the circumstances of what took place in the detention of the American schooner " Manchester," by a Spanish cruiser, near the cape of San Antonio, in the said island, has transmitted to this first department copies of the communications which, on this subject, and at his instance, have been addressed to him by the Anglo-American consul at the Havana and the commanding general of that naval station. According to what is remembered by the secretary of the consulate, with reference to the information which was given him at that time by his predecessor, Mr. Sharkey, and according to what appears from a dispatch which the latter addressed to his government, the consul of the United States has stated that, at the beginning of March of this year, a letter was received at that consulate, signed by the captain and mate of the "Manchester," in which they said that the schooner being swept by a strong current, and having stranded near the cape of St. Anthony, a Spanish war-schooner presented herself, which sent them men to assist them out of the difficult situation in which they were ; that the officers of the Spanish vessel, on account of some suspicion which they entertained, caused the hatches to be opened and a part of the cargo to be removed, but not finding anything, they put the " Man- chester" at liberty to continue her voyage. The letter contained also a postscript, charging Mr. Sharkey not to pay to the pilot of the Spanish schooner thirty dollars, which he exacted for his services'. Mr. Sharkey, nevertheless, being of opinion that the captain of the "Manchester" was under the obligation of paying what had been claimed of him, (seeing that they had gotten him out of a perilous po- sitionj) caused the pilot to deliver him the account receipted, and sent it on for payment to the collector of the custom-house at New York. Afterwards, and in view of an article in a newspaper of that city, in which the captain of the "Manchester" gratuitously accused the crew of the Spanish schooner of various outrages which he supposed they had put upon him, Mr. Sharkey, in order to establish the truth of the facts, wrote to the minister of foreign affairs of the United States a nar- rative of what had occurred. As your excellency will perceive, the result is, that, although a search of the " Manchester" did take place, it was only after having afforded her the protection and aid which were exacted by humanity and the difficult position in which she was, and in consequence of a suspicion sufficiently justified by the special circumstances of the island of Cuba, CASE OF THE BLACK WARRIOR, ETC. 105 and the projects of invasion with which she has been more than once threatened. I ought nevertheless to say to your excellency that, in the communication of the commandant general of the naval station to the Captain General of the island, an explicit assurance is given that thirty dollars were not exacted from the captain of the " Machester" for hav- ing placed her at liberty, since, besides that the commanding officers of the Spanish cruiser had thus stated, such exactions are in open op- position to the regulations of the navy. In view of the complete contradiction, as regards this point, which exists between the communications of the Anglo-American consul and the commandant general of that naval station, General Canedo has sought from the latter new information, and a more detailed account of all which occurred. I will hasten to transmit the same to your excellency as soon as it shall be received in this first department ; although I am confident that, in attention to what is stated by the American consul, your excel- lency will have recognized the bad faith with which the captain of the "Manchester" has proceeded in accusing, without the slightest reason, the officers of the Spanish vessel-of-war, and of the little credit which, for this cause, his language merits. I avail myself of this occasion, &c, &c, &c. A. CALDERON DE LA BARCA. To the Minister Plenipotentiary of the United States. * [Translation.] First Department of State, Palace, February 14, 1854. Sir : In accordance with what I had the honor to announce to your excellency in my note of November 10, of last year, the Captain Gen- eral of the island of Cuba has transmitted to this first department the new information relative to the detention of the American schooner " Manchester" by a Spanish cruiser, which he had sought from the commandant general of that naval station, with the object of verifying, if in fact any recompense was exacted from the captain of the Ameri- can vessel for the services which were afforded him on that occasion. The result of these last communications is, that the said schooner being put afloat, and after having been taken out from among the dan- gerous reefs where she was found, the captain asked the Spanish pilot what sum he should give him for having put him in the open sea ; and having agreed that it. should be thirty dollars, he stated that he could not pay it at that moment on account of being without money, but that he would give him a letter desiring trie United States consul at the Havana to pay him that amount. Instead, therefore, of any violent exaction on the part of the pilot, there was, in this case, no more than the accept- ance of the voluntary offering made by the American captain, who, at the same time, wrote in a contrary sense to the consul referred to, and 106 CASE OF THE BLACK WARRIOR, ETC afterwards published in a newspaper of the Union a false account of the occurrence, defaming the loyal deportment of the Spanish officers. I ought, nevertheless, to say to your excellency that the command- ant general of the naval station of the Havana has disapproved of the conduct of the pilot in having accepted a recompense which the regu- lations of the navy prohibit, imposing upon him also a punishment for not having made known the same, as he ought, to the captain of the vessel in which he served. For this reason the proper communications have been addressed to the commercial agent of the United States at the Havana, to the end that he may not pay the indicated sum of thirty dollars, as often as the Spanish cruisers shall receive no recompense whatever for the exten- sion of services of the same nature as those which have caused the unjust "and unfounded complaint of the captain of the "Manchester." I avail myself of this occasion, &c, &c. A. CALDERON DE LA BARCA. Legation op the United States, Madrid, March 3, 1854. Sir : I have had the honor to receive your excellency's notes of the 15th November, 1853, and the 14th February last, referring to the case of the American schooner Manchester. In reply, I beg leave to say that your excellency seems to have been laboring under a misapprehension in supposing that either this legation or the government of the United States had felt any considerable inter- est in the question of the payment of thirty dollars between the captain of the American schooner and the pilot of the Spanish armed vessel. Whether either or both of those individuals proceeded with good or bad faith in that transaction, is a matter of very little importance in this discussion. The points to which, however, I feel it necessary to recall the atten- tion of your excellency as important, are — 1st. The question of indemnity to the owners of the Manchester for the injury and losses which they may have sustained on account of the illegal detention and search of that vessel by a Spanish cruiser ; and, 2d. The insult offered to the flag of the United States by the deten- tion and search of a vessel under its colors, whether the same may have occurred in the waters of the island of Cuba or in any other of the waters which surround this earth. As regards the first, it may perhaps prove to be, in this instance, but a mere question of right, since the injuries sustained by the owners of the schooner may have been only nominal, and their losses more than compensated by the benefits received from the crew of the cruiser in aiding to get her out from among the reefs. But with regard to the second point I am not prepared to de- clare the explanations of your excellency as satisfactory to my govern- ment; yet, in view of the peculiar circumstances of this case, I will transmit the communications of your excellency to the Secretary of State of the United States, and will await his instructions before making any further communication on this subject. CASE OP |HE BLACK WARRIOR, ETC. 107 I ought, however, to say to your excellency that, as regards the cap- tain of the Manchester, no complaint has been preferred on his part to the. government at Washington, or to any of its officers, so far as I am informed, either against the officers of the Spanish vessel-of-war or against any person connected with the occurrence which has been brought to the notice of her Majesty's government. The simple suspi- cion, only, that a vessel under the flag of the United States has been forcibly detained and searched by one of her Majesty's armed cruisers, in time of peace, will always be sufficient to excite the very serious at- tention of the government of the United States, and must necessarily, in every case, lead to a rigid investigation of the circumstances which may have conduced to the taking of so very delicate a step. Mean- time, I take a sincere pleasure in assuring your excellency that no government is more sensible to the courtesy, nor more prompt in ac- knowledging the favors which its vessels or citizens in distress may re- ceive at the friendly hands of the subjects of other powers, than is the government of the United States ; and it would be for me a source of the highest satisfaction if I should hereafter be called upon to address your excellency in no other than cases purely of this last description. I avail myself of this occasion to renew to your excellency the assu- rance of my most distinguished consideration. Your obedient servant, PIERRE. SOULE. His Excellency Don A. Calderon de la Barca, Minister- of State. CASE OF JOHN S. THRASHER. Mr. Webster to Mr. Sharkey. [Extract.] [No. 5.] Department of State, Washington, January 7, 1852. Sir: ******** t You will please obtain copies, if permitted by the Spanish authori- ties, from the records of the oaths and proceedings in the case of the domiciliation of Mi. Thrasher, and transmit the ^ame to this depart- ment. Your letter of the 24th ultimo has been received. I am, sir, &c, DANIEL WEBSTER. William L. Sharkey, Esq., U. S. Consul, Havana. 108 CASE OP THE BLACK WARRIOR, ETC Mr. Barringer to Mr. Webster. [Extract.] [No. 75.] Legation of the United States, Madrid, January 14, 1852. Sir : I have much satisfaction in informing you that Mr. John S. Thrasher, lately sentenced to eight years' presidio in Ceuta, Africa, by the Spanish authorities in Havana, was pardoned on the 11th instant, and will be immediately released. The first notice I had of this sentence was on the 28th ultimo, in a private note from Mr. Thrasher himself of the 22d ultimo, announcing his arrival at Vigo as a prisoner on board the Spanish ship " Hispano Cubano," then in quarantine, and shortly to proceed to Cadiz on his route to Ceuta. Mr. Thrasher, without giving a detailed statement of his arrest and trial, referred me to the communications which he sup- posed I had received, or would soon receive, from Washington, whither he had directed the papers to be sent from Havana. Not having re- ceived any instructions from the Department of State on the subject, but still anxious to do all I could, under the circumstances, in behalf of the prisoner, on the 29th ultimo I addressed an unofficial note to the Minister of the Interior, (Gobernacion,) referring to his arrival, saying that I was ignorant of the charges against him, and did not know, therefore, whether his case was embraced in the recent pardon of the American prisoners, or not ; that I desired copies of the proceedings and sentence against him ; and, also, that Mr. Thrasher might be con- fined for the present at or near Cadiz, with liberty of the fortress or arsenal, as the case might be. I stated to him frankly that I had no official instructions on the sub- ject, and that all I asked was a personal favor. I subsequently had an informal interview with this minister on the subject, who manifested every disposition to do all in his power in answer to my request. On the 5th instant I addressed a communication to the Minister of State and Foreign Affairs, a copy of which, marked A No. 1, is here- with enclosed. I also had several interviews with this minister and the under Secretary of State on this subject. It is not deemed essential to detail the conversations had on these different occasions. It is sufficient to state that I maintained in substance, that, although ignorant of the specific charges against Mr. Thrasher, I regretted his detention in prison, especially since the recent satisfactory and honora- ble adjustment of diffeiences between the two countries, and the gen- eral pardon and release of all the other American prisoners ; that it would be most desirable to remove also this source of excitement ; that it occurred to me this prisoner might well be embraced in the general amnesty or pardon, particularly as he had appealed from the decision in Havana to her Majesty the Queen, and inasmuch, as far as I under- stood the accusations against him, they had some connexion with the late expedition against Cubu ; and that Mr. Thrasher complained of injustice' done him on the trial, and that privileges had been denied him to which he was entitled as an American citizen. CASE OF THE BLACK WARKIOR, ETC. 109 It was replied that his trial and sentence stood on separate and inde- pendent grounds, though they might have some connexion with the invasion ; that her Majesty's government felt the full force of the con- siderations urged, and had every disposition to remove every cause of difference between the two countries, whose friendly relations had been placed on so honorable a basis by the recent negotiations ; that, as far as they were cognizant of the proceedings against the prisoner, he had no cause of complaint on account of the trial or sentence ; but that the representations which I had made, added to their own knowledge on the subject, would be cheerfully and seriously considered, with every desire on their part to preserve in their full extent the most amicable feelings towards the American nation, and to grant my requests as far as was consistent with duty to their own government and people ; but that, if Mr. Thrasher was an American citizen, he was still subject to the laws of Spain whilst resident in Cuba. This latter proposition was admitted by me, with the proviso that if he was an American citizen — which I insisted and which they seemed to admit — he was entitled, under treaty, to some rights which might be denied to a subject of Spain. These and similar views were urged upon the government here with all the force I could command, in the absence of instructions from Washington, or full details from Mr. Thrasher himself. Having heard more at length from this latter gentleman at Cadiz on the 11th instant, I immediately had an interview with her Majesty's Minister of State on the same day, in which I repeated the views already stated, adding that I was now convinced that Mr. Thrasher was an American citizen and not a Spanish subject, though admitting that as a domiciliated resident he was amenable to Spanish laws and tribunals for any offence committed within Spanish territory, subject to his rights under treaty stipulations ; that he had taken no oath of allegiance to make him a naturalized subject of her Majesty's government, or to de- prive him of his rights under the treaty of 1795 ; but still it could not be denied that the Cuban tribunals had jurisdiction of the offence, as far as I was advised on the subject ; and therefore I submitted, that the best course to adopt was the one which I had before suggested, and which seemed to receive the favorable consideration of the minister, viz : that he should be included in the general pardon granted by her Majesty to the American prisoners, and which was, as you will have perceived, limited to those who were " citizens of the United States." On the 13th instant I received«from her Majesty's Minister of State, the Marquis of Miraflores, a communication under date of the 11th in- stant, a copy of which, translated, is herewith transmitted, informing me of the pardon of Mr. Thrasher as heretofore stated. The prisoner has been detained at Cadiz until within a few days since, and treated with every consideration compatible with his situation. I fear, however, from a letter received from our consul at that city, that on the 10th or 11th instant he was embarked for his destination at Ceuta, under his sentence. I have taken the proper measures to cause the orders for his release to be immediately issued. Copies of the letter of Mr. Burton, and of all the important consular correspondence in reference to this case, are herewith transmitted, marked B. 110 CASE OF THE BLACK WARRIOR, ETC. It may be proper to mention, as connected with the history of the case here, that on the receipt of the letter of Mr. Burton of the 10th instant, feeling some surprise, after all that had occurred, that I had re- ceived no reply to mine of the 5th instant to the Minister of Foreign Affairs, I addressed, a note to that minister on the morning of the 13th, stating the information I had received from the consul at Cadiz, my sur- prise at the same, and recalling attention to my note, and urging early action on my requests. To this note I received an immediate answer from the under Secretary of State, in the absence of the minister, trans- mitting the minister's communication of the 11th instant, informing me that it had been already signed on that day ; that he was in the act of sending it to me when my note was received, and requesting that in- asmuch as the matter had been previously adjusted in a satisfactory manner, I would withdraw my note of that morning. To this request I readily and cheerfully assented. It will be seen, from the correspondence and from this relation of facts, that I have not waited for instructions from the department in the case of Mr. Thrasher ; that his release has been obtained on my personal application, and that I have considered that the exigency of the occasion required me to act on my own responsibility in the absence of instructions from the government. The results I have just stated ; and I trust my course will be ap- proved by the government, as I have reason to believe it will be from the contents of your dispatch No. 51, of the 13th ultimo, delivered to me by the special bearer of dispatches, George H. Miles, esq., on the 13th instant, after the pardon of Mr. Thrasher had been granted and the negotiation concluded. With sentiments of the highest respect, I remain, sir, your obedient servant, D. M. BARRINGER. Hon. Daniel Webster, Secretary of State. A 1. Legation of the United States, Madrid, January 5, 1852. Sir : Mr. John S. Thrasher has recently arrived at Vigo from the Havana, a prisoner on board the " Hispano Cubano," and is now sup- posed to be on his way to Cadiz to be sent to presidio in Ceuta, Africa. I am ignorant of the accusations and sentence under which he is con- demned, and am not certain whether this prisoner is embraced in the pardon recently granted by her Majesty to the Americans concerned in the late invasion of Cuba. I do not know, indeed, whether he has been tried and condemned as an American citizen, or not ; but I am certain he claims to be such. I have therefore to desire your excellency to furnish me, if in your excellency's power, with copies of the trial and sentence, and other CASE OF THE BLACK WARRIOR, ETC 111 judicial or military proceedings against Mr. Thrasher, and also to ask as a favor, that for the present, and until some investigation can be made into the nature of his case, he may be detained in the arsenal of the Caracca or other fortress near Cadiz, with liberty of the bounds of the fortification or arsenal in which he may be confined. I avail myself of this occasion to renew to your excellency the assurances of my most distinguished consideration, and have the honor to be your excellency's obedient servant, D. M. BARRINGER. His Excellency the Makquis of Miraflores, Minister of State, fyc, Sfc, Sfc. No. 2. [Translation.] First Department of the Office of State, Palace, January 11, 1852. Sir: I have received the note which your excellency has been pleased to address to me, under date of the 5th instant, relative to the prisoner Mr. John S. Thrasher, from the Havana, desiring to verify whether this individual is or not comprehended in the pardon granted by her Majesty the Queen to the citizens of the United States who took a part in the last expedition of Bahia Honda. I have the honor to inform your excellency, in answer to your said note, that the government of her Majesty, taking into account all the circumstances and antecedents which bear upon this matter, does re- gard Mr. John S. Thrasher as comprehended in the general pardon conceded by her Majesty the Queen, my august sovereign — consider- ing that the process which has been instituted against him proceeds from the same occurrences which gave rise to the imprisonment of those who came before to the prisons of the peninsula, and have since been pardoned. The government of her Majesty, in extending to Mr. Thrasher the benefits of the general pardon — in which it experiences a singular pleasure, by considering this resolution as highly agreeable and satis- factory to the government of the United States — does so with the posi- tive condition that the said individual shall not return again hereafter to the Spanish provinces beyond sea ; and that in case of his being found in any of them, he shall be subject to fulfil his sentence, as if he never had been comprehended in the pardon. I avail myself of this occasion to renew to your excellency the assu- rances of my most distinguished consideration, &c, &c, &c. THE MARQUIS OF MIRAFLORES. The Minister Plenipotentiary of the United States. 112 -CASK OF THE BLACK WARRIOR, ETC. No. 3. Legation of the United States, Madrid, January 13, 1852. Sir : I have this moment had the honor to receive your excellency's note, under date of the 11th instant, informing me that Mr. John S. Thrasher is included in the general pardon of the American prisoners sent from the Havana, and connected with the late expedition against the island of Cuba. Your excellency will readily infer, from the interviews which I have had the honor to have with your excellency in reference to the case of Mr. Thrasher, how much satisfaction I enjoyed from a knowledge of the fact that he has been pardoned and is to be set at liberty. This satisfaction is not lessened by the circumstance that his release has been obtained on my own personal application, and previous to any official advices from my government. I may, however, be allowed to anticipate the pleasure which I am sure the course of her Majesty's government on this subject will give to that of the United States a Your excellency will excuse me for adding the expressions of my regret, that in the case of Mr. Thrasher there should have been any exception to the free and unconditional terms of pardon extended to the other American prisoners. Having been informed, by a note received this morning from the American consul at Cadiz, that Mr. Thrasher was about to be em- barked as a prisoner on board the steamer "Lepanto," bound for Ceuta, in Africa, I desire your excellency will cause the necessary orders for his release to be issued as soon as possible to the proper authorities, and that he be placed at the disposition and under the protection of the said consul' at Cadiz. With sentiments of the most distinguished consideration, &c, &c. D. M. BARRINGER. His Excellency the Marquis of Miraflores, Minister of State, fyc, fyc. Bl. [Extract.] Legation of the United States, Madrid, December 29, 1851. Sir : At the request of Mr. J. S. Thrasher, who is a prisoner from Havana, on board the " Hispano Cubano," lately at Vigo, and soon expected at Cadiz, I enclose you a letter from him. I am not yet informed of the charges against Mr. Thrasher, but learn, from the public papers of the United States, tha*L he is a person of much respectability. I have now no official instructions to give you concern- ing him, but request that you will, if possible, see and confer with him CASE OF THE BLACK WARRIOR, ETC 113 as to his wishes, and extend to him all the alleviation in your power in his present situation. A. Burton, Esq., Consul, Cadiz. * # # D. M. BARRINGER. No. 2. [Extract.] Legation of the United States, Havana, January 6, 1852. Sir: I have this day received from Mr. Charles Tyng, of Havana, and herewith enclose to you, the second of a bill of exchange in favor of Mr. John S. Thrasher, for $1,000, on Don Angel Ma. de Castrisiones, of Cadiz, dated Havana, December 3, 1851. You will please imme- diately deliver the same to Mr. Thrasher, or place the proceeds to his credit, as he may direct. I have as yet received no instructions from the government of the United States as to the case of Mr. Thrasher. I have, however, applied to the government here for copies of the pro- ceedings against him, and under which he is sentenced to presidio; and also that he may be detained at or near Cadiz, with liberty of the for- tress or arsenal, until investigation can be made into the nature of his case. As the application for an order for this latter purpose was made some days since, I trust it may have been received by the authorities at Cadiz ere this reaches you, especially as I have not only written to the minister for the same, but have had two personal interviews with him on the subject. D. M. BARRINGER. A. Burton, Esq., Consul United States, Cadiz. No. 3. Consulate of the United States, Cadiz, January 10, ]852. Sir : I have just learned at the governor's that the Cuban prisoners In the jail here are to be embarked to-day for Ceuta, on board of the government steamer "Lepanto," there to await such orders as may be given by the government, by whose direction this is done, and that Mr. Thrasher is to go with them. This gentleman, whom I have just been with, requests me to inform you of the circumstance. He will be embarked with the same atten- tion as he was landed, without guard, escorted only by me from this office, and a municipal officer in plain clothes. In haste, I am, sir, your obedient servant, A. BURTON. Hon. D. M. Barringer, Minister, Sfc. 114 CASE OF THE BLACK WARRIOR, ETC No. 4. Legation of the United States, Madrid, January 14, 1852. Sir : I have the satisfaction to inform you that Mr. John S. Thrasher has received the royal pardon, and is to be set at liberty immediately. I have requested that he may be placed at your disposition and under your protection. You will of course consult Mr. Thrasher, when de- livered to you, as to his wishes in reference to his return to the United States. I remain, very respectfully, &c, D. M. BARRINGER. Alex. Burton, Esq., Consul of the United Stales, Cadiz. Mr. Barringer to Mr. Webster. [No. 76.] Legation of the United States, Madrid, January 15, 1852. Sir: After my dispatch No. 75, of yesterday, was mailed, I received a communication from her Majesty's Minister of Foreign Affairs, of the 14th instant, a copy of which, translated, is herewith enclosed, ac - knowledging mine of the previous day, and referring to the terms of the pardon of Mr. John S. Thrasher, as well as those of the other Ameri- can citizens recently set at liberty. You will perceive that Mr. Thrasher is recognised in this note as an American citizen. I fear, from a note just received from the United States consul at Cadiz, that Mr. Thrasher, who had been detained there for some time at my request, may have been sent to Ceuta before the orders for his liberation could have reached the authorities at Cadiz. This event, however, will only delay his release for a day or two, as you will observe from the note of the minister that orders for that purpose had already been issued by the Minister of the Interior, (Gobernacion.) In my dispatch of yesterday I omitted to mention that, in reply to my request for copies of the proceedings against Mr. Thrasher in Cuba, I was told that the government here had received no such copies. As these proceedings were under a military commission or tribunal, I doubt whether any record, as we understand the meaning of that term, was kept ; and I believe that if any such copies could be obtained at all, which is extremely doubtful, they would consist simply of a brief statement of facts in the memory of some officer of the court, or an argument based upon such statement, like the one furnished to Senor Calderon de la Barca by the Captain General of Cuba, and presented to you by the former gentleman, and upon which your dispatch No. 51, to me, was founded. If exception were taken to the form of trial under this military commission, and that Mr. Thrasher had no oppor- tunity of free and full defence, the certain reply (though it may well CASE OF THE BLACK WARRIOR, ETC. 115 be doubted whether it would be a satisfactory answer) would be, that it was according to the "usual course of proceeding in such cases." I have the honor, &c, &c. D. M. BARRINGER. Hon. Daniel Webster, Secretary of Stale. [Translation.] First Department of the Office of State, Palace, January 14, 1852. Sir: I have received the note which your excellency has done me the honor to address to me under date of yesterday, acknowledging the receipt of the communication from this department of the 11th instant, relating to the pardon granted to the American citizen, Mr. John S. Thrasher, condemned by the tribunals of the Havana. I have the satisfaction to inform your excellency, that the orders be- longing to the Department of the Interior (Gobernacion del Reino) have already been issued, with the object that Mr. Thrasher be put at liberty, and at the disposition of the consul of the United States in Cadiz, according to the desire of your excellency, as being comprehended in the general pardons ; and, while I regret that your excellency should consider, as an unfavorable exception, the condition imposed explicitly upon Mr. Thrasher, of not returning again to the Spanish provinces beyond sea, and which was not expressed in the pardon of the other persons, I hope that the impression may disappear, upon my informing your excellency that the condition with which this pardon is accompa- nied is founded in the interest itself of Mr. Thrasher, who, being established at the Havana, might, perhaps, believe himself at liberty to return there again, the which could not be anticipated in the case of the other anglo- American prisoners, proceeding from the United States, and not from the island of Cuba. The Captain General of that island has an order not to permit any one of the pardoned prisoners to enter it, and from this consideration arises the clause in the pardon of Mr. Thrasher, which is a warning profitable for the person interested, rather than a condition. I avail myself, &c, &c. THE MARQUIS OF MIRAFLORES. Legation of the United States, at Madrid. Mr. Sharkey to Mr. Webster. [Extract.] [No. 3.1 Consulate of the United States, Havana, February 9, 1852. ****** In obedience to your request that I should procure and transmit copies of the proceedings relating to the domiciliation of Mr. Thrasher, 116 CASE OF THE BLACK WARRIOR, ETC. I had the honor to address a note of the Captain General on the subject, a copy of which is herewith forwarded. My request was answered by the note, a translation of which I also forwarded, and with that the correspondence, of course, ended. Consulate of the United States, Havana, February 5, 1852. Most Excellent Sir : I have the honor to inform your excellency that a dispatch has been received by me from the Honorable Daniel Webster, Secretary of State of the United States, by which I am in- structed to ask copies, from the records of the government, of the oaths and proceedings in the case of the domiciliation of Mr. Thrasher, and to transmit the same to the Department of State. I, therefore, ask your ex- cellency to grant the requisite order to enable me to examine the records, and to procure the requisite copies to be forwarded to my government. I have the honor to be your excellency's obedient servant, W. L. SHARKEY. His Excellency Senor Don Jose de la Concha, Governor and Captain General. [Translation.] [l. s.] Political Secretary's Office. I have received the polite communication that your lordship ad- dressed to me, under date of yesterday, requesting me to furnish you copies of the precedents that exist in this superior government about Mr. Thrasher's dormciliatory letter, for the purpose of transmitting them to the Department of State, from which your lordship has received dispatches claiming them. I regret that it is not possible for me to accede to this request, as this class of documents always remains on record, and it is not customary to furnish, even to the interested party, any other datum than the domiciliatory letter, which shows the motives there were for issuing it, and the obligations which the person obtaining it binds himself to. However, if the Hon. Mr. Webster deems it of high importance to nave said copy in his possession, he may address his excellency, the Minister of her Catholic Majesty, at Washington, to whom belongs, by his diplomatic character, to act upon this kind of demands. God preserve your lordship many years. Havana, February 6, 1852. JOSE DE LA CONCHA. To the Consul General of the United States. CASE OF THE BLACK WARRIOR, ETC. 117 Mr. SkarJcey to Mr. Webster. [No. 4.] Consulate of the United States, Havana, February 13, 1852. Sir : The inhabitants of the island, who emigrated from the United States, are much concerned in reference to the question of their allegi- ance, and in obedience to their wish, as well as for the purpose of regu- lating my own conduct, I venture to make it the subject of a commu- nication. They are living here under letters of domiciliation ; but many of them assert that their letters were procured only to enable them to engage in business pursuits, without any intention of forfeiting their allegiance ; and the impression seems to have prevailed, very gen- erally, that no such consequence would result from the letter of domi- ciliation. They supposed, as they say, it was a mere license to them, as foreigners, to remain on the island for a given time, in their several business capacities, and they are still reluctant to believe that they have transferred their allegiance to the government of Spain. Being still attached to their own government, they indulge the hope that they may not be concluded by any opinion it may adopt, or action it may take, unless upon the most mature deliberation it shall be found that they are not entitled to its protection. It is proper to remark, that in many cases, as I am informed, no oath was taken ; but that proper certifi- cates, that the preliminaries had been complied with, were furnished by subordinate officers of the government, appointed for that purpose, on the payment of the customary fees, and on these certificates the carta domicilia issued. I herewith forward a translation of the whole of the ro}^al decree of 1817, and would remark, that it makes an evident distinction between temporary and perpetual settlers or between domiciled inhabitants and naturalized citizens ; a distinction which seems to be recognized by the Spanish construction, as will be seen by reference to the letter of the Captain General, already before you. The decree provided that settlers in the island should profess the Cathoiic religion ; that they should take an oath of fidelity and allegiance, offering to comply with the laws and general regulations of the island. This, although so called, is not an oath of allegiance, since it imposed no obligation that would not have existed without it. These requisites being complied with, and a record made, the party obtained his domiciliatory letter, which only conferred limited privileges for a limited time. It conferred, in fact, the rights and character of a domiciled inhabitant, as contradis- tinguished from the rights and character of a naturalized citizen, as will be seen from the letter itself. If, at the expiration of five years, the party wished to become naturalized, he could do so. The 24th section lays down the requisites to be observed. The party was bound to apply to the government, to produce his carta domicilia, bind himself to remain perpetually on the island, and take the oath of naturalization, promising faithfulness to the Catholic religion, to the king, and to the laws, renouncing all rights, privileges, and protection as a foreigner, and offering not to maintain any depend- ence, connexion, or civil subjection, to his native country. This oath 118 CASE OF THE BLACK WARRIOR, ETC entitled him to letters of naturalization, which conferred fall privileges and rights of citizenship, which of course were not possessed before. Several circumstances conduce to show that, until this final step was taken, the domiciled inhabitant was still regarded as a foreigner. He had the unconditional right to leave the island any time during the five years ; he was prohibited during that time from engaging in maritime commerce, and from keeping stores or shops, except in partnership with Spaniards. In case of war with his native country, he was entitled to a special protection, necessary to foreigners, but unnecessary to naturalized citizens. The oath taken in procuring the letter of domicil only re- quired a profession of the Catholic religion, and obedience to laws ; the final oath required fidelity to the Catholic religion, to the king, and to the laws, and renounced foreign protection, and abjured allegiance to the native country. It is certainly true that every one who goes into a foreign country, contracts, by his own free will, the obligation of obedience to the laws. It is also true, in one sense, that the domicil of the party will determine his national character ; but this is true only in a mercantile sense. A domicil may be acquired by residence alone, without any declara- tory act ; and when so acquired, it will decide the mercantile charac- ter of the party, which, in times of war, will control his rights. In such questions as this, the animus manendi is presumed from the residence or domicil of the party ; but allegiance is quite a different thing, and must be presumed still to exist, when nativity is once shown, until it is also shown that the party had, in the most solemn manner, fully and com- pletely adopted a new allegiance. This must be true in those coun- tries which hold that allegiance is perpetual. And, even in the United States, it was ultimately held that a citizen could not absolve himself from his native allegiance without a law giving the power to do so. Surely, presumption cannot destroy every thing so sacred. If the foregoing remarks are well founded, it would seem to follow that the emigrants from the United States, residing here under the carta domicilia, are still citizens of the United States. And, while it is not pretended that this exempts them from liability to the laws of the island, yet, if there is any exemption or privilege to citizens of the United States, arising from treaty stipulations, they are entitled to claim them. It will readily strike you, that the 7th article of the treaty of 1795 contains important provisions in this respect. It guar- antees to the citizens of the United States the right to be tried in crim- inal, as well as in civil matters, by the established law ; and, even if it was not competent for Spain to change this law at pleasure, there is still one privilege, personal and special, that she could not take away without violating the treaty — I mean the right to employ and appear by counsel. The utility of this provision, and the reason for its adop- tion, are quite apparent. If American citizens were to be allowed advocates and counsel only, when they were allowed by law, then the treaty secured nothing. The law of nations would have done this without treaty. I trust you will pardon the liberty I have taken in submitting these remarks, which are mere outlines. I have been induced to do so by CASE OF THE BLACK WARRIOR, ETC 119 the great solicition felt by our people here, and by a desire that your mind may again be drawn to this subject, and some general rule laid down for my government. It seems to me, too, that the friendly rela- tions of the two governments, the continuance of which is so necessary to both, would be rendered more durable by some timely action in this and other interesting subjects. I have the honor to be, with great respect, your obedient servant, W. L. SHARKEY. Hon. Daniel Webster, Secretary of State. Royal order of October 2\st, 1817, for increasing the white population of the inland of Cuba. THE KING GOVERNOR, CAPTAIN GENERAL OF THE ISLAND OF CUBA, AND INTENDENT OF THE ARMY AND ROYAL TREASURY : In your letters of the 17th and 18th of June of this year, you re- commended as very necessary for the welfare and preservation of that valuable island, a representation by you, accompanied of the city council, consulado, and economical society of Havana, wherein, making a succinct statement of the extent of the island, number and circumstances of the inhabitants, state or condition of its agriculture, and of its physical force, they show that one of the most important possessions of my royal crown is unpeopled and defenceless, and its fields without cultivation, which can yield fruits much desired by other nations ; they state that after a most careful and mature consideration, upon an affair of such magnitude, they can discover no other means capable of conciliating and satisfying such various exigencies, but by the increase of the white population with Spaniards from the peninsula or Canary islands, and in default of these, with European Catholics from friendly countries ; and for that purpose they petition me to ex- tend to that island the privileges granted to that of Porto Rico, by my royal order of 10th August, 18] 5, with the explanations made hy the authorities of that province, under the instructions and articles, which to that effect they had given, and are as follows : " Art. 1. All foreigners from countries or nations at friendship with me, who are already settled, or may hereafter desire to settle, in the island of Cuba, must establish by the proper means, before the govern- ment thereof, that they profess the Roman Catholic religion, and with- out this indispensable circumstance they shall not be allowed to settle there ; but my subjects from these dominions, or the Indies, shall not be obliged to do so, as there can exist no doubt in regard to their reli- gious principles. " 2. From the foreigners that should be admitted, in conformity to the previous article, the governor shall receive the oath of fidelity and allegiance, offering to comply with the laws and general regulations of the island, to which Spaniards are subjected. " 3. After the foreign settlers have been residing' five years on the island, and after binding themselves to remain there perpetually, they shall be granted all the rights and privileges of naturalization, 120 CASE OP THE BLACK WARRIOR, ETC. and the same to the children, that they may have taken there with them, or that may be born on the island ; that they be admitted to all public and military employments, according to the talent or capability of each. "4. No tax per head, or personal tribute, shall ever be imposed upon white settlers ; they shall only pay for their negro or mulatto slaves at the rate of one dollar per year for each slave, after ten years of having been residing on the island ; this rate shall never be in- creased. " 5. Within the first five years the Spanish and foreign colonists shall be at liberty to return to their countries or former residences ' T and, in such cases, they shall be permitted to take away from the island all the moneys or property that they took there without paying export duties ; but on the increase of property they must pay the per centum. " 6. I grant to the old and new colonists dying on the island without forcible heirs (heredicos forsosos) the privilege of leaving their property to their relations or friends, wheresoever they may be; and if their successors should desire to settle on the same, they shall enjoy the rights granted to the testator ; but should they prefer to take away the inheritance, they may do so by paying upon the total fifteen per cent, for exportation duty, if it takes place after five years of the testator having been residing on the island; and if before the expiration of that time, they shall pay only ten per centum, in conformity to what is ordained in the preceding article. The parents, brothers, or relatives of settlers dying intestate shall inherit the whole of their property, even if they reside in foreign countries, on the condition of their coming to settle on the island, if they are Catholics ; but if they cannot or will not settle there, then I permit them to dispose of their inheritance by sale or cession, according to the rules explained in the two preceding articles. " 7. I likewise grant to foreign eolonists holding landed property on the island, that, in conformity to the Spanish laws, they may leave, by will or other disposition, the real property they may be possessed of, and not admitting of easy division, to one or more of their children, provided no injury is thereby caused to the rights of the others, or of the testator's widow. " 8. Any settler that, on account of law-suits or other urgent and just motives, should be in need of going to Spain, other provinces of my Indies, or to foreign dominions, shall ask permission of the governor, and may obtain it, provided it is not to unfriendly countries, or to carry away his property. " 9. Colonists, Spanish as well as foreign, shall be free for the term of fifteen years from the payment of tithes upon the products of their lands ; and after the expiration of tha,t time, (which must be reckoned from the date of the decree,) they shall pay only two and a half per cent., which is one-fourth of the tithe. " 10. They shall also be exempt from the payment of royal alcabala dues on the sales of their products and commercial effects for the term mentioned, and after the expiration of it, only two and a half per cent.; but everything shipped by them on Spanish vessels bound for these kingdoms shall be forever free of all export dues. CASE OF THE BLACK WARRIOR, ETC 121 11 11. As all the colonists must be armed, even in time of peace, to be respected by their slaves, and to resist any invasion or attack by pirates, I declare that this obligation must not be considered as binding them to serve in the regular army ; that it will be sufficient for them to present their arms every two months at the review that the governor, or officer deputed for the purpose, must pass ; but in time of war or mutiny of slaves they shall contribute to the defence of the island ac- cording to the measures that its chief may deem proper to take. " 12. Vessels of any size or build whatsoever belonging to old settlers must be taken to the island, and, after being registered, shall be con- sidered as Spanish, and the same such as they may acquire in foreign countries by purchase or other legitimate title ; they shall be exempt from duties as foreign vessels, or for being registered. Those settlers who may be desirous of building vessels on the island shall be per- mitted by the government to cut a$d «use the necessary wood, except only such as may be destined for building vessels for my royal navy. " 13. Foreigners that may hereafter go to the island with the intention to settle on it must prove that they profess the Roman catholic religion, must make known to the government the trade or honest and useful profession to which they intend to apply themselves, and the property or moneys they import, which they shall be permitted to take away again free of duty, if within the first five years they should determine, to their countries or former residences. " 14. After the government has declared the colonist to be of admissi- ble circumstances a record shall be kept of his name, country, family, profession, or trade, district or jurisdiction in which he intends to settle, and amount of money or property that the settler may state to be his ; after which a domiciliary letter shall be issued in his favor, an oath of faithfulness and allegiance being first received, wherein he shall offer to comply with the laws and regulations that Spaniards are sub- jected to. " 15. A record shall be kept at the office of the royal treasury of the domiciliary letters, expressing in them the property or moneys stated by the settler, as a knowledge must be had for, in case of their being again exported, also by the council of the district, and by the comman- dant and justice thereof, without causing to the settler any expense for these proceedings, or charging him any fees whatsoever. "16. The domiciliatory letters shall authorize colonists to be consid- ered as residents of the island, and their persons and property shall enjoy the same inviolability as those of old residents. From the courts they shall receive good treatment and justice, and from the other resi- dents all the aid and favor they should become deserving of for their qualities and good behaviour ; they shall always have the liberty of applying to the government, and its protection secured to them, if any injury or detriment should be done to them. " 17. Foreign colonists, after obtaining the domiciliary letter, may acquire all descriptions of landed property on the island in town or country, with the same requisites and privileges as the Spanish resi- dents. They shall be permitted to change their residences, or to re- move from one district to others, with the knowledge of the respective territorial authorities. Those having useful trades or industry shall be 122 CASE OF THE BLACK WARRIOR, ETC. allowed to settle and exercise it wherever it may suit their convenience, with the authorities. " 18. Foreign colonists cannot, during the first five years of residence, employ themselves personally in maritime commerce, nor have shops or stores, nor be owners of vessels. But they may be interested in company or co-partnership in the mercantile transactions of Spaniards ; and the contracts made by them with these, verbally or in writing, shall have the same value and legal force as if they were between one Spaniard and another. " 19. The liberty of foreign colonists to return to their countries or former residences during the first five years is absolute, unlimited, and without conditions. They may take away their property or dispose of it as they think fit. " 20. In case of war with the country of which domiciliated foreigners are natives they shall not lose the j|gnts and advantages of their resi- dence on the island of Cuba. Even if the first five years have not elapsed their property shall not be subjected to embargo, sequestration, nor any of the ordinary or extraordinary measures of the state of war. Those who, notwithstanding the war, should desire to remain on the island to complete the five years, and become naturalized, shall be permitted freely to do so if known to be of good character and habits. Those preferring to leave the island shall be allowed sufficient time to commodiously arrange their affairs and dispose of their property, being permitted to take away, free of duty, such property, or the equivalent thereof, as they introduced into the island, and paying on the excess the ten per cent, stated in the I6th article. " 21. Domiciliated as well as naturalized colonists may dispose of their property by will, or in any other authentic form ; in case of death their wills shall be religiously fulfilled ; should they die without will or testament, their children or nearest relatives shall be their legitimate heirs, with the same rights the deceased had. " 22. It is declared that there never shall be put in practice on the island of Cuba the rights, usages, or customs, known in other nations under the name of aubaine escheatage, or others by which the govern- ment and treasury sequesters the property of foreigners at their death ; which rights or customs, though they may be applied in cases of tran- sient passengers, shall never be understood or applied to these that are domiciliated. " 23. Within the five years of domiciliation the colonists shall not be subjected to any contributions whatever, nor to the residence taxes established in the circular of 1st December, 1815, except only in the case of public calamities, dangers to the country, and defence of the coast against robbers or pirates ; in which extraordinary events, or other similar ones, all must lend their aid and favor, according to the well-known principles of natural and international law." Mr. Graham to Mr. Webster. Navy Department, February 21, 1852. Sir: I have the honor to return herewith, after perusal, with my acknowledgments for the favor, the enclosed dispatch from the United CASE OF THE BLACK WARRIOR, ETC 123 States consul for the port of Havana, of date February 9, 1852, and to inform you that instructions have been issued to Commodore Parker, commanding the home squadron, to be upon the alert upon the matter referred to. I have the honor to be, sir, with high respect, your obedient servant, WILLIAM A. GRAHAM. Hon. Daniel Webster, Secretary of State. Mr. Thrasher to Mr. Webster. Madrid, March 22, 1852. Sir: In your dispatch of December 13 last, to the Hon. D. M. Bar- ringer, United States minister to Spain,. as published in the New. York ! Herald, you are led into one or two errors, which I beg leave to cor- rect. You say, " it is much to be regretted that Mr. Thrasher has made no communication whatever to this department respecting the circum- stances of his case, so as to enable us to see what are the precise grounds of his complaint." I was arrested at Havana on the 16th day of October. For the first five days my arrest was merely an honorable detention ; but no sooner had the semi-monthly steamers left for the United States, than I was thrown into a dungeon of the prison, and thence transferred to one in the Punta castle. For sixteen days, or until after the next semi- monthly departure of the steamers, I was kept in strict solitary con- finement, with utter deprivation of all communication with the world. During this time it was impossible for me to transmit any information to the department. When I was allowed to see my friends, Mr. Owen, the American consul, but lately appointed by the existing administration, came to see me, and assured me that he had laid my case fully before the Depart- ment of State at Washington. During the time intervening between this and my subsequent embarkation for Ceuta, Mr. Owen occasionally called at the fortress to see me, and continually expressed his great surprise that no communication had come from the Department of State in regard to my case ; always assuring me that not only the com- munications I made to him, but several that had been made in my be- half by my friends, had all been transmitted to the government of the United States. Under these circumstances, I judged it superfluous to make a direct communication to the department, as I could add no- thing to the information already before it. You say, " if the official account of the Spanish authorities be correct, Mr. Thrasher appears to have expatriated himself, and to have become, at least for a time, a subject of the crown of Spain." The authorities neglected to inform you, that on the 8th of Septem- ber, 1850, in a communication to the Captain General of Cuba, 1 ex- pressly and unequivocally refused to take out letters of naturalization, and thus become a subject of the crown of Spain. 124 CASE OF THE BLACK "WARRIOR, ETC I embrace the present opportunity to transmit you a copy of a letter addressed by me to General Concha upon the subject of domiciliation in Cuba, and the trial of American citizens by the permanent military commission of that country. I submit to you, with much diffidence, the argument it contains, and not as my own views only, but as those of some of the first legal attain- ments in Spain. Whether yon will find them of sufficient weight to induce 3^ou to modify any of the opinions expressed in your letter of 23d December last to the President, I know not; but it is to be hoped they may have some weight with the present rulers of Cuba. The world now knows what an extorted afd unwarranted interpre- tation was given by the Spanish government, both here and in Cuba, to the unfortunate wording of the presidential proclamations in regard to expeditions, and you are well aware of the extraordinary pretensions that have since been made by the Spanish ministers in relation to the right of capture on the high seas, (vide Contoy,) and in subsequent questions that have been suscitated between the two governments. These facts, and the known disposition of the government of Cuba toward American citizens in general, lead me to anticipate the most disastrous consequences from the unwarrantable interpretation it may give to your letter. If the government of C uba was one administered in accordance with statute and justice; if the law were respected by its ministers; or even if the executive power there, absolute as it is, were guided in its action by any fixed principles, I am well aware there is nothing in that letter which would endanger the person or the property of a single American citizen. But while such is not the case; while not only existing laws are disregarded, but new ones are continually "decreed" by the arbi- trary will of one man, as circumstances may seem to him to require; while the ministers of justice, and the administrators of executive power-, seem animated solely by one idea, that a war of races exists, what interpretations and what actions therein may we not dread? • To prove to you that I do not speak from personal feeling alone, I will cite, a well-known fact in the history of that same permanent ex- ecutive military commission, which claims jurisdiction over all Ameri- cans in Cuba. I will only premise that, in 1778, torture was declared by Charles III. to be " barbarous and infamous," and was expressly prohibited in Spanish tribunals ; and that when the inquisition fell be- fore the decree of the famous Cortes of Cadiz, in 1812, that last relic of the barbarous ages disappeared even from the ecclesiastical tribu- nals of Spain. In 1844-'45, in the trials during the execrated invention of a "black conspiracy," hundreds of negroes died under the lash, tied to ladders by order of the permanent executive military commission ; and, in con- sequence of confessions thus extorted, hundreds of others were sent to the presidios and mines of Spain, (to the presidio of Seville alone were sent over 450 ;) large numbers were executed ; and how many died in prison, or immediately after their liberation, can never be known. There were not wanting both American and English victims in this iniquitous affair. Many engineers and even proprietors were arrested, not a few of whom died during imprisonment, or in consequence of the CASE OF THE BLACK WARRIOR, ETC 125 sufferings they then experienced. The sequel is instructive. Pedro Salazar, the tool, fiscal of the military commission, followed his victims condemned to the presidio of Seville. Leopaldo O'Donnell, the master spirit, Captain General of Cuba, retired to Spain with something more than one million of dollars, the fruit of three years' loyal administration of the government. Shall we abandon our countrymen to the tender mercies of such a tribunal and such a government ? I have the honor to be your very humble servant, J. S. THRASHER. Hon. Daniel Webster, Secretary of State, U. S. Mr. Webster to Mr. Sharkey. [No. 16.] Department of State, Washington, July 5, 1852. Sir : Referring to the dispatch from this department, addressed to you under date of April 7, in which the receipt of your letter on the law of domicil, as understood in Havana, was acknowledged, I have •now to inform you that the subject has received the full consideration which its importance demands. The official dispatch to Mr. Barringer, on the 13th of December last, and the communication to the House of Representatives of the 23d of the same month, in respect to the case of Mr. John S. Thrasher, were particularly confined to the state of facts which, at that time, had been placed before the department. Upon the law and the facts, as they wexe then presented, it was considered doubtful whether Mr. Thrasher could rightfully claim the privileges secured to American citizens by the treaty of 1795. But it was carefully stated, in each of the communications above referred to, that no communication addressed to the department had been received from Mr. Thrasher himself, and that it was a matter of regret that the department had not before it his own statement of the case. Since that time additional information has been obtained from your own dispatch, as well as from other sources, respecting the Spanish law of domiciliation, both in regard to its practical operation and the manner in which it has been construed by the Spanish authorities them- selves, and by foreigners who have taken out letters of domiciliation. It appears that the royal proclamation of October 21, 1817, by which provision was made for domiciliating foreigners, was issued at the request of the civil authorities of Havana, for the purpose of increasing the white population of the island of Cuba, by Spaniards from the pen- insula and the Canary islands, and by emigrants from friendly European nations. The reasons assigned for its issue were, the small number of inhabitants in proportion to the extent of the island, the condition of its agriculture, and its limited physical resources ; so that "one of the most important possessions of the royal crown was unpeopled and defence- less, and its fields without cultivation." Many privileges were granted to those who took advantage of the invitation thus extended to them — 126 CASE OF THE BLACK WARRIOR, ETC such as exemption from taxation for fifteen years, perfect liberty to return to their native country at any time during the first fiva years, and free exportation of the property which they brought with them. As they were " strangers," they had permission to leave in case of war with their native country. These and other parts of the proclamation exhibit very clearly its intent — that there was no disposition on the part of the Spanish authori- ties to exercise the power of forcibly domiciliating foreigners, even if such power were not contrary to all natural law. It is true that, on his arrival, the foreigner was required to take out a domiciliatory letter ; but, according to the Spanish law, this " simply authorized a foreign subject to reside in the island more than thre% months, and to employ himself in commerce, or any other useful industry," and, it may be added, that any conditions or restrictions introduced into the domicilia- tory oath inconsistent with the letter and spirit of the royal proclama- tion above referred to, or the provisions of Spanish law, must neces- sarily be null and void. It does not appear that the foreigners who came to the island and took out letters of domiciliation considered that, by so doing, they for- feited their rights of citizenship in their respective countries, or assumed any obligations inconsistent therewith. This, too, appears to have been the general understanding of the Spanish authorities themselves. Throughout the whole Spanish law there is observed a wide distinc- tion between domiciliation and naturalization. This is fully admitted in the communication of Mr. De la Concha to Mr. Calderon, of May 28, 1851, and also in the 14th and 24th articles of the above-mentioned proc- lamation. Thus it appears that, notwithstanding the terms of the oath of domiciliation are so strict, yet, taken in connexion with the provisions of the law above cited, the American residents in Cuba have never, in point of fact, regarded themselves as having changed their allegiance by taking out letters of domiciliation. They appear to have considered these letters as mere formal requisites to an undisturbed temporary residence for commercial or other business purposes. In point of fact, it is believed that these papers are usually procured by purchase — that no oath is taken, and no act done on the part of the American resident, except the payment of a small fee. Change of domicil is matter of in- tention, and notwithstanding residence in fact, there must be the animus manendi. Change of allegiance, which is manifested by the voluntary action, and usually by the oath of the party himself, ought always to be accomplished by proceedings which are understood, on all sides, to have that effect. It is certainly just that acts, which are to be regarded as changing the allegiance of American citizens, should be distinctly understood by those to whom they are applied as having that effect ; that the practical as well as theoretical construction of such acts should be unequivocal and uniform ; and that no acts should be. deemed acts of expatriation, except such as are openly avowed and fully understood. I am, sir, &c, DANIEL WEBSTER. Wm. L. Sharkey, Esq., United States Consul, Havana. CASE OF THE BLACK WARRIOR, ETC 127 Mr. Everett to Mr. Brooh. Department of State, Washington, January 8, 1853. Sir : In respect to the oath of domiciliation required to be taken by- residents in Cuba, a copy of which you requested yesterday at the de- partment, permit me to refer you to executive document No. 14, House of Representatives, 32d Congress, 1st session, and to the letter and accompanying papers of Mr. Owen, No. 32, which embrace all the forms you desire. I regret that I cannot enclose a copy, as the department receives but five copies of Congressional documents, and there is no copy now re- maining. I have the honor, &c, EDWARD EVERETT. Hon. James Brooks, House of Representatives. Mr. Hayes to the Secretary of State. Washington, March 10, 1853. Sir : I would respectfully call your attention to the accompanying letter of J. S. Thrasher. I have the honor to be, sir, very respectfully, your ob't servant, JOHN L. HAYES, Counsellor at Law, Washington. Hon. Secretary of State of the United States. To the honorable Secretary of State for the United States of America. John Sidney Thrasher, a native of the city of Portland, in the State of Maine, late a resident in the city of Havana, island of Cuba, would respectfully lay before the Department of State the following facts, and ask the intervention of the government of the United States of America in the prosecution of his claim against her Catholic Majesty the Queen of Spain. In the month of August of the year 1850, the exponent became pro- prietor of a daily journal, published in Havana, styled the "Faro Indus- trial de la Habana ;" and, confiding in the reciprocal rights usually accorded by friendly powers to citizens or subjects of any other power, and in the stipulations of existing treaties between the government of the United States of America and her Catholic Majesty, and in the ex- isting rule by royal decree, in Spain, that rights not stipulated for for- eign citizens or subjects by treaty shall be enjoyed by these in the dominions of Spain, in a like and reciprocal manner as may be enjoyed by Spanish subjects in the country to which such foreign citizens or sub- jects may owe allegiance, exponent desired to continue the publication of said journal in the city of Havana for his use and advantage. But on or about the 6lh day of September of same year, 1850,, Don Fred- erico Roncali, then Governor and Captain General, did arbitrarily issue a decree, directed to exponent, by the terms of which exponent was prohibited from publishing any newspaper in the island of Cuba, unless 128 CASE OF THE BLACK WARRIOR, ETC. he should first take out letters of naturalization, and become a subject to the crown of Spain. This exponent refused to do, and made the same known to Don Frederico Roncali, Governor and Captain General of the island of Cuba, by a communication, bearing date on or about the 8th of September, 1850 ; and exponent was necessitated to abandon his undertaking, to his very great loss and detriment. For the losses and damages thus caused to exponent he claims remu- neration to him by the Spanish government in the sum of one hundred and fifty thousand dollars. And exponent would further make manifest to the Department of State, that, on the 16th day of October, 1851, while residing in Hav- ana, in the peaceful and lawful pursuit of his avocations, he was arrested by order of the government of the island of Cuba, without the manifestation of any charge against him ; was thrown into a vile and loathsome dungeon in the common jail ; was thence removed to one, more filthy and loathsome still, in the Punta fort ; was deprived of all intercourse with his friends ; was subjected during many clays to a harsh, inquisitorial, and most severe interrogation, during which the govern- ment had the aid and assistance of the most profound legal knowledge and advice, while exponent was denied all counsel ; was charged with the crime of constructive treason to a government to which he owed no allegiance ; was arraigned before a military tribunal, with continued deprivation of legal advice ; was put in the most imminent peril of his life, having been informed that the judges who sentenced him were three for sentence of death, and four for sentence to the galleys ; was denied all legal defence ; was sentenced to eight years labor in chains in Africa; was sent a prisoner to Spain ; was thence transferred to the penal settlement of Ceuta, in Africa, where he was put in chains; and was finally liberated by a royal order of her Catholic Majesty, which expressly recognises his American citizenship, and prohibits his return to any colony of Spain. For the injury done to exponent in the breaking up of all his plans and prospects in life by this arbitrary, unjust, and unwarranted proce- dure ; for the moral and physical suffering which he was compelled to undergo ;- for the peril of limb and life to which he was subjected ; for the moral stigma inflicted upon him, and for remuneration of the great losses and expenses to which he was thereby subjected, he claims from the Spanish government the sum of three hundred and fifty thousand dollars. And exponent would respectfully solicit of the Department of State its interposition in his behalf, and its urgent prosecution, in every proper manner, of this his claim against her Catholic Majesty, as the only means whereby he can obtain justice. And exponent would further solicit, that the Department of State recognize and assist A. H. Lawrence, esq., of Washington, exponent's duly constituted attorney in this matter, in his prosecution of this expo- nent's claim, and in the obtaining of justice. And exponent has the honor to be, respectfully, &c, &c. ' J. S. THRASHER. Alexander H. Lawrence and John L. Hayes, of the city of Washington, counsellors at law, attorneys for J. S. Thrasher. CASE OF THE BLACK WARRIOR, ETC. 129 Mr. Marcy to Mr. Hayes. Department op* State, Washington, March 12, 1853. Sir : In answer lo your letter of the 10th instant, on the subject of the claim of Mr. J. S. Thrasher against the government of Spain, I have the honor to inform you, that a proposition has been recently made to Spam, and other powers, for the organization of a board for the mutual adjustment of all existing claims between the respective gov- ernments. Sufficient time has not elapsed to enable the department to learn whether Spain will accede to the proposition. I am, sir, respectfully, your obedient servant, T TT W. L. MARCY. John L. Hayes, Counsellor at Law, Washington. Mr. Marcy to Mr. Lawrence. Department of State, Washington, April 12, 1853. Sir : In reply to your letter received this day, desiring a copy of such instructions as may have been issued to the United States consuls toy this department, in relation to the citizenship of Americans residing 5 -fn pa ?!?T \ S l ands ' Z beg ieave t0 refer y° u t0 House document? No. 10 and No. 14, 1st session, 32d Congress, which contain the pro- visions of the Spanish laws on the subject of citizenship and domicil, with the construction that has heretofore been given to those provi- sions by this department. r I also inclose a copy of a letter addressed to the United States con- sul at Havana, on the -5th of July last, in which reference is made to the above-mentioned documents, explanatory of the rights enioved bv citizens of the United States in Cuba. J J J I am, sir, &c, A u T „ W. L. MARCY. Alexander H. Lawrence, Esq., Washington. CASE OF THE STEAMER FALCON. Mr. Owen to Mr. Webster. Commercial Agency of the United States, Havana, August 17, 1851. Sir : When I closed my letter on yesterday evening, it was sup- posed that the mail bag would then soon be sent to the steamer ; as the bag wlII be open till 8 o'clock this morning, I am afforded an opportu- nity to state to you that Lieutenant Rogers, commanding the United btates mail steamer Falcon, called at this office late yesterday evening 130 CASE OF THE BLACK WARRIOR, ETC and complained of the conduct of a Spanish commander of a steamer, who boarded the Falcon off the Cabanas, about forty miles from this, on his way from • Chagres to this port, with the mails, $1,500,000 in gold, and a large number of passengers. He says he had previously been chased by another Spanish steamer, say for two hours. He says that the first steamer referred to in this communication fired over his stern and bow four or five times, and that upon being hailed, he stopped and demanded to know what was wanted. In answer, he was asked the name of his vessel ; when he replied, " it is strange you do not know — it is the Falcon ; a United States steamer, which has been here constantly for the past three years." He informed me that he spoke in an angry tone to the officer who boarded him, and said that he should not be detained by him, and that if he had any business it must be done quickly, as he was bound to Havana, and he should go on. Had it not been for the large amount of gold and large number of passengers, the commander of the Falcon thinks he would have fired into the Spanish steamer. He says that he has been informed by some of the passengers, that at the time he " came "to," when hailed, the officers on the Spanish steamer took off hats or caps, and " hurraed," he now believes insultingly. He ended by saying, that at the time he was boarded he believed this port to be in a state of blockade, otherwise he would have resented the conduct of the Spaniards notwithstanding his cargo and passengers. I called upon the Captain General, who expressed much regret at what had occurred between the Falcon and Spanish steamers, and said he would see that it should not be so in future ; that there was a new vessel out here, and that it must have been the officer of her that had so acted. I told him that the officer had expressed a hope that he should not be blamed, as he acted under orders (perhaps) from the general of marine. The Captain General said it could not have been by the order of the general of marine. I think Commander Rodgers said his flag was hoisted at the time of the occurrence. The Captain General having enclosed his reply to me for the captain of the Albany, I said I had sent it to Captain P. He asked me if I had read it ; said I had not, when (he) added, it would be entirely sat- isfactory. It is said that the hisses and curses that met the Albany and Vixen on coming in was not from the people generally, but from some excited persons. I have the honor to be, with great respect, your obedient servant, A. F. OWEN. Hon. Daniel Webster, Secretary of State United States Mail Steamer Falcon, Havana, August 17, 1851. Sir : I desire to make to you the following statement, and through you to forward a copy of it to the Hon. Secretary of State : I have to CASE OF THE BLACK WARRIOR, ETC 131 complain that on the 16th instant, being on my regular voyage from Chagres to Havana, having on board the United States mails from California, with 211 passengers, and specie to the amount of a million and a half of dollars, when in sight of the port of Bahia Honda, and about fifteen miles from the land, I discovered a Spanish steamer-of-war in chase. I hoisted the United States ensign and pennant, and a blue flag at the fore, with " U. S. Mail" in large letters in its centre, and continued on my course for Havana, then distant about fifty miles. I found the Spanish steamer to run very equally with us, and although not gaining, she continued in chase about four miles astern. At 9 o'clock I discovered another steamer coming out from under the land, apparently with the object of intercepting us. Approaching us at a large angle with our course, she commenced firing astern of us before she was in range, and upon her nearer approach I discovered her to be a steamer called the Almandares, recently, I believe, a packet between Matanzas and Havana ; that she was armed with two guns, apparently 32-pounders, and with numerous soldiers and officers on board, the former drawn up on her deck in a threatening attitude. She fired three shotted guns, apparently with the purpose of bringing us to, but I still kept my course. Being faster than the Falcon, she at length ranged alongside within hail, fired a musket, and hailed us to stop. I slowed the engines to enable them to communicate by hail more distinctly if they wished, but they still continued to call loudly to us to stop. After some deliberation, thinking that possibly the port of Havana might be blockaded, and unwilling to jeopard the lives of the passengers by resisting their force, I stopped, and they immediately sent an officer on board in a small boat. Upon demanding of him what he wanted, he said that he wished to know what ship it was. I told him the Falcon, and that it was strange that he did not know what ship, since she had been running to Havana every fortnight for the last three years. He asked me to go on board the Almandares, which I refused to do. He then asked me if there were any Spanish passengers on board, and I replied no. He then got into his boat, and told me to wait until he communicated with his superior ; and I told him that I must hasten, for I could only wait long enough lor him to reach his vessel, which in fact I did. The whole detention may have amounted to twenty minutes or half an hour. When I asked the officer who came on board what their conduct in stopping the ship meant, he said that I must not blame him; he was only acting under orders. The steam-frigate had, in the meantime, ranged up within shot ; and after we again proceeded on our course, the Almandares was seen to communicate with her, and both of the Spanish vessels stood back again to the westward. I had forgotton to say that it was remarked by the passengers of the Falcon, that upon our stopping, the officers on the deck of the Alman- dares waved their caps about their heads, and cheered — whether in exultation, or with what motive, I cannot tell. All of the foregoing matter I conceive to be subject for protest ; and I hereby declare, that for no other consideration but the lives of de- 132 CASE OF THE BLACK WARRIOR, ETC fenceless passengers on board, would I have refrained from using the force of the ship in resisting the indignity offered us. Very respectfully, HENRY RODGERS, Lieut. U. S. .N., commanding V. S. M. Steamer Falcon. A. F. Owens, Esq., U. S. Commercial Assent, Havana. Mr. Derrick, Acting Secretary, to Mr. Calderon. Department of State, Washington, September 13, 1851. The undersigned, Acting Secretary of State of the United States, finds it his duty to place before Don A. Calderon de la Barca, envoy extraordinary and minister plenipotentiary of her Catholic Majesty, the enclosed copy of a formal communication, of the 17th ultimo, from Lieutenant Henry Rodgers, of the United States navy, commanding the United States mail steamer "Falcon," to Mr. Owen, the commercial agent of the United States at Havana, which contains a complaint and statement of facts relating to an insult offered to the flag of the United States by the " Almandares," one of her Catholic Majesty's war steamers, during a recent voyage of the " Falcon" from Chagres to Havana. The undersigned is fully aware that occasions may arise in which the detention and search by a man-of-war, of a suspected vessel sailing under the flag of a friendly power, might be excusable ; but this right of visitation is a belligerent right, and he cannot readily perceive what circumstances would justify the detention and visitation of a mail steamer like the "Falcon," a vessel which for a number of years has regularly visited Havana, and was, at the time of this occurrence, within some fifty miles of that port. The Spanish officer of the " Almandares," who came on board the "Falcon," seems to have been himself conscious of the gross impropriety of thus stopping a steamer in the service and under the flag of a friendly nation, since he apologized for the part which he had taken in this extr ordinary visit, by stating that he was simply acting under orders. The undersigned is not prepared to say what influence intelligence of the indignity offered on this occasion to the American flag may have had in exciting a part of the population of New Orleans to those deplo- rable acts of violence to which Mr. Calderon invites attention in his notes of the 26th and 29th ultimo, and of the 5th instant ; but he may remind Mr. Calderon that the news of the "Falcon's" having been stop- ped and visited by one of her Catholic Majesty's war steamers, had reached New Orleans on the morning of the same day on which those unfortunate disturbances took place. It is not, however, with any view of extenuating the outrages of which Mr. Calderon complains in his notes above referred to, but in the expectation that her Catholic Majesty's minister may be able to furnish the government of the United States with a satisfactory explanation of the detention and visitation of CASE OF THE BLACK WARRIOR, ETC 133 the "Falcon," that the undersigned addresses this note to Mr. Calderon, and has the honor to request an early answer. The undersigned avails himself of this occasion to renew to Mr. Cal- deron the assurances of his high consideration. W. S. DERRICK, Acting Secretary. Senor Don A. Calderon de la Barca, &fc, &fc, fyc. Mr. Calderon to Mr. Derrick. [Translation.] Legation of Spain in Washington, September 29, 1851. The undersigned has received the note which the Acting Secretary- did him the honor of addressing on the 13th instant, enclosing a copy of a report presented to Mr. Owen, commercial agent of the United States at Havana, by Henry Rodgers, esq., captain of the Falcon, relative to the detention which he had been compelled to undergo by her Catholic Majesty's war steamer Almandares, on his way from Chagres to Havana, with the public mail on board. The Acting Sec- retary of State asks the undersigned to give him some explanation of this occurrence, begging him not delay sending an answer. Although the undersigned, in consequence of his not being yet in possession of authentic details, knows very little more of this affair than what has been published in the newspapers of the United States, and the narrative of Captain Rodgers is an ex parte statement, he nevertheless thinks it not inappropriate to the occasion to submit, as he does, some reflections to the enlightened consideration of the Acting Secretary of State. In the first place, although the Falcon carries the United States mail, she is a merchant vessel, and performs this service by contract. In this character, as a merchant vessel, she is clearly established by the additional fact that she receives pay for passage and for transportation of goods, not on account of the government of the United States, but for the benefit of the Steam Company, the agencies of which are estab- lished at various points throughout the United States. At the time when the Falcon made her appearance in the vicinity of Bahia Honda, a considerable number of American citizens had, a few days before, landed near that port, which they invaded by force of arms, perpetrat- ing deeds of violence and of blood. In order to repel this perfidious profanation of Spanish territory, it had been found necessary to assemble vessels of war and some of her Majesty's troops, which came in contact with the invaders, who had thus caused an unheard-of state of war to exist. The invaders had been taken there by the American steamer Pam- pero, from New Orleans, whence they had sailed with the knowledge and consent of the authorities, whose duty it was to have prevented 134 CASE OP THE BLACK WARRIOR, ETC. them. The Pampero had stopped at Key West, for the purpose of waiting for a favorable opportunity to cross the short distance which separates that point from the island of Cuba, in order to make sure of the bold stroke which they contemplated. She had, also, left Key West without impediment or hinderance, landing her infamous freight of passengers on the shores of Bahia Honda, and returned for reinforce- ments. She was every moment expected ; and the Pampero had also been employed before in carrying the United States mail. Other steamers from various points of the United States, with ammunitions, arms, and men, were also expected ; and the authorities of the island of Cuba, as well as the undersigned, had been informed that the schemers of these periodical piratical invasions had been in negotiation with the owners of the Falcon in order to purchase this very vessel from them, with a view of eluding vigilance and carrying out their in- famous designs ; treacherously hiding those designs under the folds of the American flag, and of her previous character as mail-carrier. But whether this accusation be correct or otherwise, the Falcon might have changed owners in Chagres, or have fallen into the hands of the pi- rates during her passage. Vattel, who certainly is not over-indulgent in the matter of detention and the right of search, expresses himself thus : " The transportation of contraband goods cannot be prevented, if neutral vessels which are met with at sea are not visited. The right to visit them, therefore, exists. At this day, any neutral vessel which should refuse to submit to such visit, woulr] be condemned, on that ac- count alone, as a lawful prize." A very modern author, (Richard Widman, chapter on the right of capture,) who has made a compilation of whatever has been considered, down to this day, as established and generally agreed upon in relation to this subject, speaks thus : " Every vessel is bound to submit to visi- tation and search, whether it be the vessel of a friend or of an ally, or even of a subject; and submission may be compelled, if necessary, by force of arms, without giving claim to any damages incurred thereby, if the vessel, upon visitation, should not be found liable to be de- tained. No circumstances can dispense with this obligation. A vessel is not excepted either by its build or by its flag ; such circumstances furnish no proof of the national character of the vessel." The same principles are asserted by Judge Kent, Wheaton, and by other public writers and eminent American jurisconsults, with whom the Acting Secretary of State is better acquainted than the under- signed. If this, therefore, be the doctrine and the practice of civilized people, and if it be true that the Falcon is a merchant vessel, and that she was momentarily detained in the waters within the jurisdiction of the coun- try to which the ship-of-war which detained her belonged, in sight of a port which had been invaded by armed Americans, who were still carrying on hostilities waged by them against a foreign territory, the undersigned, so far from seeing in the circumstance of that detention, caused for the purpose of ascertaining the character and destination of the Falcon, any cause of complaint on the part of Captain Rodgers, pre- fers, on the contrary, such complaint on the part of the nation the sig- CASE OF THE BLACK WARRIOR, ETC 135 nals of whose ship-of-war said captain disregarded, especially as Cap- tain Rodgers, who had been in New Orleans, could not be ignorant of the preparations which were going on there, publicly and without dis- guise, for an invading expedition against Cuba. The aforesaid Captain Rodgers remarks that he has made various uninterrupted voyages to Havana. If he was never troubled before, he ought to have supposed that some imperative cause existed then to call for such a course. Captain Rodgers remarks that the Spanish officer who boarded his vessel alleged, as an excuse for the act, the necessity he was under to obey the orders of his chief; and from this the inference is made that some irregularity had been committed. The undersigned is under the impression that Captain Rodgers did not clearly understand what the Spanish officer said. Even in the cheers given by the crew of the Almandares, which may probably have been the usual salute exchanged between sailors when two vessels separate, or when they descry a friendly craft, Captain Rod- gers desires to spy out an insult. In saying that on that occasion the Almandares was commanded in person by Don Jose Bostillo, com- manding general of the Havana station, is to say more than enough, in order to put an end at once to so malicious an insinuation. A gentle- man, and a Spanish admiral, would never have allowed a crew to in- dulge in any such vulgar and insulting demonstrations. If, on the other side, the circumstance of the Falcon's detention should have contributed, unfortunately, another element of provocation, as the Acting Secretary believes, in creating the infamous disturbances which occurred in New Orleans, it is more natural to attribute the fact, not to the circumstance of the detention itself, which is so simple and so justifiable, but to the seditious and inflammatory manner in which that circumstance was alluded to in several of the newspapers. The undersigned avails himself of this occasion to renew to the Act- ing Secretary of State the assurances of his high consideration. A. CALDERON DE LA BARCA. Hon. W. S. Derrick, Acting Secretary of State of the United States. CASE OF THE SCHOONER LAMARTINE. Mr. Worrell to Mr. Marcij. Consulate of the U. S. of America, Matanzas, February 25, 1854. Sir : I have the honor to enclose copies of a letter from Mr. Henrj* Harris, my agent at Cardenas, my letter to the senior United States naval officer at Havana, and my letter to the Captain General of Cuba, relative to an outrage committed on an American schooner in the Gulf of Mexico, on her passage from Mobile to a port in my consulate. I hope, sir, the time has now arrived when an explicit, full, and une- quivocating demand will be made for redress upon this government. 136 CASE OF THE BLACK WARRIOR; ETC These insults have been so frequent, their contempt so great, that we have become the object of ridicule to all about us. I hope, in the in- vestigation, reference will be made to the false statements made by- even the Captain General, as well as other officers of this government, in the case of the abduction from New Orleans, and let no equivoca- tion screen the perpetrator of this gross outrage upon our flag. Let the demand be commensurate with the act, compel the redress to be equal to the outrage, and let Americans here be able to chime with that glo- rious sentiment uttered on the back porch of the Capitol, " That flag shall protect an American citizen wherever his foot shall be placed," and then, sir, Americans abroad will know they are safe. I have the honor to be, &c, &c, &c, EDWARD WORRELL, United States Consul. Hon. W. L. Marcy, Secretary of State, &fc, &fc P. S. — I have no doubt this is a part of a fleet crusing after " filli- busteroes," and they will make that an excuse. A copy of Mr. Harris's letter will be found in the one to the senior officer of the United States squadron, Havana, therefore unnecessary to add separately. Consulate of the U. S. of America, Matanzas, February 25, 1854. Sir : I hasten to inform you of the contents of a letter received from my agent at Cardenas to-day, viz : "The schooner Lamartine, of Camden, Geo. W. Thorndyke, master, arrived at this port on Wednesday, February 22d, and reports the fol- lowing as an extract from his log-book : " ' Thursday sea-account, February 16, 1854. — A brig displayed Spanish colors to the American schooner Lamartine, from Mobile, bound to Cardenas, island of Cuba, at 4.30 p. m., latitude 27° 14', longitude 85° 25' west from Greenwich. A flag was discovered flying at the brig's main gaff end, which was promptly answered through courtesy, and whilst hoisting our flag we were fired at by the brig. The ball came within forty yards of the schooner, endangering the vessel arid lives of those on board. This a solemn protest against an outrage perpetrated by a Spanish vessel on an American vessel, in American waters, pursuing a lawful trade.' "The said brig was about three-fourths of a mile astern of the schoo- ner, and after firing she stood on her course, and was in company with her two days after. " Respectfully, &c, &c, "HENRY HARRIS, " United States Consular Agent. "Edward Worrell, Esq., " United States Consul, Matanzas." CASE OF THE BLACK WARRIOR, ETC 137 Above you have the history of a gross outrage committed on our flag, and I lay before you the history for your consideration, but I hope you will take immediate and prompt action in the matter. I would advise that the Fulton go to Cardenas and ascertain the full particulars,, and then cruise after the insulter and force an apology or punish his insolence. I have written to the Captain General, and I shall send a copy of the letter to the Secretary of State. Yours, respectfully, EDWARD WORRELL, United States Consul. To the Senior Officer United States Squadron, Havana. Consulate of the U. S. of America, Matanzas, February 25, 1854. Most Excellent Sir : I enclose a copy of a letter I have this day received from my agent at Cardenas, which you will see describes an outrage upon the American flag by a Spanish war vessel. I cannot conceive what cOuld have induced this high-handed measure by a national vessel of Spain, nor have I an opportunity of knowing what vessel it can be ; but as Havana is the port from whence the fleet for the protection of the island sails, and the headquarters of the squadron on duty here, your excellency must know what vessels are at sea. Your excellency must be aware of the nature of this offence — at our very doors, upon the Gulf of Mexico, the very spot that Cuba com- mands as the key of the west and the southwest of the United States, the last spot upon the wide sea that such an act should have been com- mitted, if it was expected to retain the friendly relations with the United States which so happily exist at the present time, and participated in by a large majority of the people. I cannot believe, your excellency, that my government will tamely submit to have a vessel of that gov- ernment fired at by a foreign vessel-of-war whilst in the legitimate and peaceable pursuit of trade, and I therefore make this representation to your excellency that you may exercise your own good judgment in preventing a repetition, as well as to investigate the cause of this unau- thorized and unsupported outrage upon the flag of a friendly power. I shall immediately inform the Secretary of State of the facts above presented, as well as forward him a copy of this letter to your excel- lency. In the mean time I have addressed the senior officer of the United States navy in the harbor of Havana, and requested him to pursue such course as his judgment will dictate for the future protection of American vessels traversing the Gulf or the Atlantic between this and the United States. With high consideration, I have the honor to be, your excellency's obedient servant, EDWARD WORRELL, U. S. Consul His Excellency the Marquis Pazuda, Governor and Captain General, fyc, of the Island of Cuba* 138 CASE OF THE BLACK WARRIOR, ETC. Mr. Worrell to Mr. Marcy. [Extract.] [No. 11.] Consulate of the U. S. of America, Matanzas, March 4, 1854. Sir : In my dispatch of the 25th February, numbered 10, I informed the department of the attack by a Spanish brig-of-war upon an Ameri- can schooner on her passage from Mobile to Cardenas, and that I have communicated with the Captain General upon the subject. I now have the honor to enclose a translation of his reply, received at this office three days ago. I will in a few days transmit to the department the affidavits of the officers and a portion of the crew relative to the matter. I am, very respectfully, your obedient servant, EDWARD WORRELL, t United States Consul. Hon. W. L. Marcy. Government and Captaincy General of the Island of Cuba, March 1, 1854. Sir : His excellency the Governor and Captain General has re- ceived your communication of the 25th ult., (February.) The deed does not appear probable. He will inform himself, and will give an account to our representative in Washington, for the intelligence of both governments. Which, by order of his excellency, I say to you in reply ; remaining Your obedient servant, JOSE ESTEVAN, The Secretary of Government. To the Charge (Encargado) of the Consulate of the United States in Matanzas. Mr. Worrell to Mr. Marcy. [No. 12.] Consulate of the U. S. A., Matanzas, March 9, 1854. Sir : In my dispatch No. 11, under date of the 4th instant, I for- warded a copy of the Captain General's reply to my communication to him, complaining of the attack of a Spanish brig-of-war on an Amer- ican schooner from Mobile to Cardenas, a full statement of which in my dispatch of February 25, No. 10, was forwarded to your depart- ment. I now have the honor to enclose a communication under oath of the captain, mate, and part of the crew, which shows a direct, wilful, and outrageous violation of treaty stipulations, as well as shame- CASE OF THE BLACK WARRIOR, ETC. 139 ful insult to the flag of the United States, and hope it will receive the attention its importance deserves. I am sir, very respectfully, your obedient servant; EDWARD WORRELL, United States Consul. Hon. William L. Marcy, Secretary of State, fyc, 8fc. Consulate of the U. S. of America, Matanzas. Interrogatories and answers given by George W. Thorndyke, Henry L. McKee, mate, and Charles M. Smith, Wm. Harrison, seamen of, and belonging to the schooner Lamartine, of Camden, Maine, said vessel having been fired at by a Spanish brig of-war while on her passage from Mobile, Alabama, to Cardenas, Cuba, in lat. 27° 24' north, long. 85° 25' west. 1. How did the brig bear when first discovered ? Answer. The brig bore, when first discovered, nearly southwest by west, with her larboard tacks aboard and by the wind. 2. Did she run for the schooner ; and if so, what were her actions on approaching her ? Answer. The brig was heading east-northeast nearly, and kept on her course by the wind until night set in. She did not change her course before or after she fired at the Lamartine, as we perceived. 3. Did those on board the schooner observe her all the time after her first discovery until she signalized the schooner ? Answer. We on board the Lamartine, captain, crew, (and one pas- senger, E. Dansville, who was much frightened,) saw the brig before we could see her signal, it being hid by her sails from our view, if set, but saw her signal nearly as soon as it could be seen in her position from the schooner. 4. How long after signal was raised was it before the schooner an- swered by her flag? Answer. The time could not have been more than ten minutes after the brig's signal was discovered when the Lamartine's ensign was run up to her main peak ; and when in the act of setting our flag in plain view of the brig, the Lamartine was fired at. 5. Was there any delay on the part of Captain Thorndyke after he saw the signal of the brig; and if so, what was the cause of that delay? Answer. There was no delay in setting our signal after seeing the brig ; we should be very sorry to depart from that common rule and courtesy practised generally. 6. How does the schooner carry her signal halliards — made fast to the end of his main boom or to his crosstrees? Answer. The schooner carries her signal halliards at sea at her main peak, and made fast at the main boom. 7. What was the relative position of the vessels when the shot was fired? Answer. The brig bore, when she fired the shot, about north from 140 CASE OF THE BLACK WARRIOR, ETC. the schooner, and distant from one-half to three-fourths of a mile — the Lamartine was heading south, half west. 8. Where did the shot range — along his length, across his bows, or across his stern? Answer. The shot ranged along the schooner's length, striking the water on our weather beam, scattering the spray for some distance ; the ball struck about thirty yards from the schooner, a little forward of our beam, if anything. 9. What was his conduct when he again met the schooner two days afterwards ? Answer. We saw the brig the two following days, but not near enough to ascertain any particular movement of her, or the number of guns she mounted, or her name. GEORGE W. THORNDYKE, Captain HENRY L. McKEE, Mate. his CHARLES |xj M. SMITH. mark, his WILLIAM M HARRISON. mark. United States Consular Agency, Cardenas, Cuba. Personally appeared before me, Henry Harris, United States Con- sular agent for the port of Matanzas, George W. Thorndyke, Henry L. McKee, Charles M. Smith, and William Harrison, signers of the fore- going document in writing, and made oath that it is their free act and deed. In testimony whereof, I have hereunto set my hand and affixed the seal of the consulate of the United States, at Cardenas, aforesaid, this sixth day of March, in the year of our Lord one thousand eight hundred and fifty -four. HENRY HARRIS. [l. s.] Consulate of the United States, Matansas, March 10, 1854. I, Edward Worrell, consul of the United States at the port of Ma- tanzas, do hereby certify that the annexed is a true and faithful copy of the original document now on file and of record in this consulate. In testimony whereof I have hereunto set my hand, and affixed the j- -j seal of the consulate, this tenth day of March, one thousand •- ' "J eight hundred and fifty-four. EDWARD WORRELL, United States Consul. CASE OP THE BLACK WARRIOR, ETC 141 CASE OF REY, ALIAS GARCIA. Mr. Barringer to Mr. Clayton. [Extract.] [No. 5.] Legation of the United States, Madrid, January 9, 1850. g IR . ###*#*#* Much concern has been manifested, in private conversation, by influen- tial persons connected with the government and ministry of Spain, on the subject of the arrest and expected trial of Don Carlos de Espana, their consul at New Orleans, for the alledged abduction of Rey. It is stated in the newspapers received at this legation by the last mail from the United States, that the grand jury, on the testimony of the princi- pal witnesses for the prosecution, have refused to find a true bill against the defendant. The action of this body will, I presume, put a final end to the prosecution. It might be important to me to have an official authority for any declaration, verbal or written, I may deem advisable to make on the subject to the authorities here. And if the prosecution is not termina- ted, but still proceeds, I think it important that I should be fully in* formed of all the steps taken in its course. CASE OF PEDRO RAICES. Mr. Robertson to Mr. Matey. [Extract.] [No. 64.] Consulate of the United States, Havana, November 7, 1853. g IR .####### A serious case has just occurred within four or five days. Pedro Raices was taken from his bed at midnight ; his papers were seized : among them was, as his wife assures me, his certificate of American citizen- ship, which, she says, he refused to let the officers have, but they took it by force from him. It is very likely that the certificate is merely one to the effect of his having signified an intention of becoming a citi- zen when allowed by law. The document was issued, I believe, in New Orleans. Mr. Raices is now confined in complete incommunica- tion in the Moro castle. His mother and wife have presented themselves to me, informed me that he has several children entirely dependent on him for support, and begged me to extend to him the protection of this consulate. Several other arrests have been made within a few days ; among them those of three Creoles, besides Raices, who have certifi- cates obtained in the United States. I promised the mother and wife of Raices that, in my first interview with the Captain General, I would bring the subject to his attention ; and so I did on Saturday, 5th instant, although I had no hope of affording them the least satisfaction. You 142 CASE OF THE BLACK WARRIOR, ETC. are fully aware that the government here deny the right, on the part of a consul, to meddle in anyway in such matters. The Captain General informed me that he was aware, that among the arrested were four who had certificates of American citizenship, which he did not intend to acknowledge; that he knew them to be conspirators against his gov- ernment, and bad men, whom he was going to put on trial ; and if, after being tried, they were proved to be guilty, that he would have them severely punished. I have the honor to be, &c, WILLIAM H. ROBERTSON, Acting Consul'. Mr. Robertson to Mr. Marcy. [No. 76.] Consulate of the United States, Havana, December 1, 1853. Sir : Referring to my dispatch No. 64, under date of the 7th ultimo, I beg leave to inform you that the wife of Pedro Raices (whose name is mentioned in my said dispatch) came to me this morning, and made known that her husband was yesterday allowed, for the first time since his arrest, to communicate with his family and friends ; that she imme- diately went to the Moro castle, where he is confined, and saw him; that he told her he was accused of being an accomplice in the print- ing (he is a printer by trade) and publication of papers against the Spanish government and the authorities of this island. He declares the charges to be false ; that he has never, in a»y manner, said or done anything against the government here. He also informed her that the only paper found in his possession, any way criminating him, was a copy of a letter written by him to a friend in New Orleans, at the time that the "Faro" newspaper was purchased by John S. Thrasher, which letter, among other things, expressed his satisfaction and pleasure that there was an American at the head of that paper. He was employed in his trade at the "Faro" office. Mrs. Raices also told me that her husband had assured her that he was a naturalized citizen of the United States, and had produced his certificate of citizenship at this office some months since, of which certificate a note has been taken at this office. On referring to the general record-book, I find the following entry: — "May 30, 1853, Pedro Raices, a native of the island of Cuba, this day appeared at the office of the consulate of the United States, and pro- duced a certificate of American citizenship, by naturalization, in his favor, issued out of the fourth district court of New Orleans, on the 26th day of October, 1852, signed and sealed by Thomas Gilmore, clerk of said court, whose signature is duly authenticated by Mortimore M. Rey- nolds, judge of the court aforesaid, on the date before mentioned." This clearly shows that Raices is a citizen of the United States. Mrs. Rai- ces tells me that she has been informed that the Captain General is enraged against her husband, and has said that he will have him se- verely punished. Both she and her husband have likewise been assured CASE OF THE BLACK WARRIOR, ETC 143 that the best result that he can expect will be his being sent to Spain, which would be a great misfortune, for he is a poor man, having, besides his wife and four children, and another soon to come into the world, his aged mother — all entirely dependent on his labor for support. Although I fear that the Captain General will not give heed to any remonstrances I may make in favor of Raices, on the plea that consuls, and especially myself, who have no exequator, are mere commercial agents, having no right to intermeddle in such affairs, I will still, feel- ing, as I do, great interest in the fate of the unfortunate man and his family, who will be left entirely destitute, address his excellency on the subject, and exert myself (as long as I have charge of this office) as much as possible to obtain his release. I beg to renew the request made in my communication before men- tioned, for specific instructions in relation to this case, that may serve as a guide for other cases of the like nature that may occur in future. I have the honor to be, sir, with great respect, your most obedient servant, WM. H. ROBERTSON, Acting Consul. Hon. William L. Marcy, Secretary of State of the United States. Mr. Robertson to Mr. Marcy. [No. 15.] Consulate of the United States, Havana, January 11, 1854. Sir : I beg leave to lay before you a copy of my communication to his excellency the Governor General, dated 7th instant, on behalf of Pedro Raices, of whom I treated in my dispatch No. 76, (old series.) I likewise enclose you a translation of the General's reply, through his political secretary, which reply supercedes all interference, on my part, for the relief of the prisoner ; and yet his right to American citizenship is recorded in this consulate since the 30th of May last. This will clearly show how insufficient the consulate is to give protection to American citizens. So much has been said on this subject by every one that has been consul here, as appears by the records, that any com- ments from me seem unnecessary. I send you simply the facts of the case. I received, last evening, from the Captain General, Mr. Clayton's exequator, as consul for Havana. It is in the usual form. I have the honor to be, &c, WM. H. ROBERTSON, Acting Consul. Consulate of the United States, Havana, January 7, 1854. Most Excellent Sir : I was this morning called to the military hospital by a Mr. Pedro Raices, who was born in this island, but be- 144 CASE OF THE BLACK WARRIOR, ETC. came some time since a citizen of the United States. This fact ap* pears in the records of this consulate, where an entry is found to the effect that he had, on the 30th day of May last, produced in this office a certificate of American citizenship, issued in his favor by the fourth district court of New Orleans, on the 25th of October, 1852. He states that he was taken up on suspicion of doing something wrong against the government of this island — he knows not what — and that his papers have all been taken from him, even to his certificate of American citizenship. He assures me that he is entirely innocent of any culpability ; that he has been confined in the Moro, in a dungeon, for a length of time, a great part of it incommunicated, and the rest, though allowed to be visited by his family, subjected to continual insult and abuse, until he became very ill, when he was transferred to the military hospital. I am informed that Mr. Raices has a wife and several children, and that his wife is on the eve of confinement ; and besides that, he has also his aged mother dependent upon him. I beg leave to call your excellency's attention to this case. If the prisoner has been guilty of an intentional infringement or disregard of the laws of the country, he has made himself liable to the consequences of his acts ; but, at the same time, I must observe, without any in* tention of going beyond what is conceded to the office I fill, that the government of the United States expects of me to see that the accused is fairly tried by a proper tribunal, and allowed all the facilities he may require for his defence, in conformity to the treaty existing between the United States of America and her Catholic Majesty ; but if, on the con- trary, the accused is innocent, that he be not subjected to unnecessary delays and inconveniences, but set at liberty. This is the more requi- site in the present case, where a numerous family, destitute of resources, is entirely dependent on the accused for support. As Mr. Raices is undoubtedly an American citizen, it becomes my duty to report the facts to my government, and for this reason I would request your excel- lency to be so good as to inform me of the cause of imprisonment of Mr. Pedro Raices, and the state of his case. I would also desire to be informed if Mr. Raices will be allowed all facilities for his defence in case that it is deemed proper to bring him to trial. Feeling confident in your excellency's desire to see that speedy justice is done in the present case, I have the honor to remain your excellency's very obedient servant, WM. H. ROBERTSON, Vice Commercial Agent, in charge of the Consulate. His Excellency the Marquis de la Pazuda, Governor, Captain General, fyc, &fc, 8fc, of the Island of Cuba. Havana, January 10, 1854. Dear Sir: His excellency the Governor and Captain General has charged me to say to you, as I do, that he has received your official letter of the 7th of this month, relative to Mr. Pedro Raices ; but that, as his excellency cannot enter into communications with that consulate CASE OF THE BLACK WARRIOR, ETC. 145 upon these affairs, as he is so ordered, he gives all necessary informa- tion, in regard to this particular, to the minister of Spain in Wash- ington. On complying with his excellency's command, I repeat myself your attentive and true servant, that kisses your hand. JOSE ESTEVAN, Government Secretary. The Commercial Agent in charge of the Consulate of the United States. Mr. Marcy to Mr. Robertson. Department of State, Washington, February 9, 1854. Sir : I will thank you to inform the department, by the earliest op- portunity, if the case of Pedro Raices, to which you have repeatedly adverted in your dispatches, has been decided. You will transmit any further information that you may be able to obtain respecting it, so that the department may be prepared to act with a full knowledge of all the facts. Your dispatches Nos. 21 and 22 have been received. I am, sir, &c, W. L. MARCY. W. H. Robertson, Esq., Acting U. S. Consul, Havana. Mr. Robertson to Mr. Marcy. [Extract.] [No. 29.] Consulate of the United States, Havana, February 20, 1854. ^kTT> • *?P * Tr •$ * ?F "3F M? In answer to the last, relative to the case of Pedro Raices, I have to inform you that his wife came to see me last week, and told me that the " fiscal " (prosecuting officer) had demanded against him " banish- ment to some interior place in Spain for three years," and that the mil- itary court were to render their decision on Saturday. Mrs. Raices has seen me again to-day, and notified me that her husband's case was brought before the court on that day, but she has not yet been able to ascertain what the decision has been ; that she is trying to find out the result, and will, when she does learn it, without delay make the same known to me. In my dispatch No. 15, (receipt of which you acknowledged on the 24th ultimo,) I enclosed a copy of my communication to the Captain General in behalf of Raices, and also a copy of the political secretary's letter in reply thereto, wherein he informed me that he had been in- structed by the Captain General to acknowledge the receipt of my 146 CASE OF THE BLACK WARRIOR, ETC letter, and to tell me that, as his excellency could not correspond with this consulate on such subjects, as he had orders to that effect, all necessary information had been transmitted to the Spanish minister at Washington. I do not perceive that I can, after receiving such a per- emptory answer, say anything further to the Captain General on the subject. Should I be able to obtain more information of this case before the departure of the steamer Isabel, that conveys this to Charleston, I will avail myself of the opportunity to transmit it. I have the honor to be, &c, WM. H. ROBERTSON, Acting Consul* Mr. Robertson to Mr. Marcy. [Extract.] [No. 36.] Consulate of the United States, Havana, March 5, 1854. Sir: The wife of Pedro Raices came to see me yesterday, and re- ported that she has been informed that the military court which tried her husband's case did not grant the petition of the prosecuting officer, which was " banishment for three years to Spain," but condemned him to the chain-gang. The case has been referred to the superior court, (audiencia,) and Mrs. Raices has been assured that the chief justice has disapproved of the sentence, as many who were more culpable than he had been condemned to lesser punishment ; and that he (the chief justice) is of opinion that a few months' imprisonment is a suffi- cient penalty. I suppose the Spanish minister in Washington will, in conformity with what the Captain General wrote me, be placed in possession of all information on this subject, and will not hesitate to lay the same be- fore 3 T ou. A Cuban named Isidore Richoux, a naturalized citizen of the United States, who has presented to me a passport signed by you, received, day before yesterday, an order from the Captain General to leave the island immediately. The officer that communicated to him the order made him understand that he was directed to conduct him (Richoux) to prison, if he asked for more than five days to effect his departure. I have the honor to be, sir, with very great respect, your obedient servant, WM. H. ROBERTSON, Acting Consul Hon. Wm. L. Marcy, Secretary of State of the United States, Washington. "CASE OF THE BLACK WARRIOR, ETC. 147 Mr. Marcy to Mr. Magallon. Department of State, Washington, March 15, 1854. Sir : I beg leave to call your attention to the accompanying extract of a dispatch from the acting consul of the United States at Havana, dated the 5th instant, and to request that you will do me the favor to communicate to this department the information referred to therein. I avail myself of this occasion, sir, to offer you a renewed assurance of my high consideration. W. L. MARCY. Don Jose Maria Magallon, 8fc, §c, fyc. Mr. Magallon to Mr. Marcy. [Translation.] Legation of Spain in Washington, March 18, 1854. The undersigned, charge d'affaires of Spain, has the honor to inform the honorable Secretary of State of the United States, that he has read the extract of the communication which the acting consul of the United -States at Havana addressed to the Department of State, under date •of the 5th instant, relative to the judgment pronounced in the suit which had been brought againt Pedro Raices. In conformity with the wishes expressed by the honorable William L. Marcy, in his note of the 15th instant, the undersigned proceeds to state, that the notices which have reached his knowledge on the sub- ject only come down to the 10th of January last, at which time Raices was subject to the process which had been instituted by the permanent military commission of that island, against several individuals, for hav- ing instituted and distributed about the streets of Havana, and forwarded -to other parts of the island by mail, certain productions and other seditious documents. The arrest of this individual, who, although born in Havana, alleges to have been naturalized a citizen of the United States in 1852, no doubt induced Mr. W. H. Robertson, consul ad interim of this country in that city, to write to the Captain General on the 7th of last January, in behalf of Raices. This communication was answered by the au- thority last mentioned on the 10th of the same month, through the medium of the political secretary, stating that he had furnished this legation with all the necessary information on the subject. This in- formation referred then to the seizure of various suspicious papers in possession of Raices, together with a portion of printing materials, a gun, and a sabre ; there being among the former a writing in English, which Raices sought to destroy by snatching it from the hands of the police officer. Mr. Robertson must have referred to this communica- tion of the Captain General, in his aforesaid dispatch of the 5th instant. The undersigned has received no official dates since, but he does 148 CASE OF THE BLACK WARRIOR, ETC not hesitate to assure the honorable Secretary of State of the United States, that while he does not believe that the president of the court of judicature (regente de la audiencia) had given his private opinion be- fore trying the case in court, he is firmly persuaded that his decision will be in conformity with strict justice. The undersigned avails himself of this opportunity to renew to the honorable William L. Marcy the assurances of his high consideration. JOSE MA. MAGALLON. Hon. Wm. L. Marcy, Secretary of State of the United States. Mr. Robertson to Mr. Marcy. [Extract.] [No. 45.] Consulate of the United States, Havana, March 21, 1854. Sir :******* The case of Pedro Raices has been brought to a termination : he has been sentenced to banishment for one year in the Isle of Pines, as his wife has just informed me ; the Captain General has not yet approved or disapproved. Should the former be the case, as the Isle of Pines is an out of the way place, where no employment may be procured for a man of weak constitution like Raices, his numerous and indigent family will, unless something is promptly done in his behalf, suffer severely ; and the said isle being the place where vagrants and confirmed drunk- ards are sent, the consignment of Raices to it appears to me to be intended to ruin his character and good reputation. I have the honor to be, &c, WM. H. ROBERTSON, Acting Consul. CASE OF CHARLES PETER V. ESNARD. Mr. Campbell to Mr. Clayton. Consulate of the United States, Havana, February 1, 1850. Sir : I have the honor to enclose herewith a copy of a short corre- spondence with the Captain General, and of an affidavit of Mr. Esnard, whose arrest and imprisonment gave rise to the correspondence. You will observe that my letter to the Captain General is a cour- teously expressed request to be informed of "the cause of arrest, and confinement in the royal prison, of the American citizen, C. P. V. Es- nard." To this civil, proper, and in my opinion necessary request, I am informed by his excellency that Mr. Esnard is imprisoned, but the CASE OF THE BLACK WARRIOR, ETC 149 cause is not given ; and his excellency concludes the letter by saying, "it being an affair of the government, it belongs exclusively to me." This letter of the Captain General appears to assume the principle that when an American citizen is arrested, with or without cause, by the Spanish authorities, neither the government of the United States nor its agents can claim to be informed of the circumstances which induce arrest and imprisonment. My feelings and opinions prompted an immediate reply, contesting this position ; but they yielded to a sense of duty which required me to obey instructions contained in your official communication of the 26th day of May, 1849, in which, while alluding to difficulties which I then thought might be impending over Americans in Cuba, you say : " Should the difficulties you seem to apprehend arise, you will immediately re- port the occurrence to the department, which will receive prompt at- tention." In obedience to which instructions, this communication is now made. In Mr. Esnard's case it appears somewhat strange that the officer at the prison should, in the first instance, have denied to me having such a prisoner in custody; and it is equally strange that Mr. Esnard under- went no examination in Havana, although he had been informed by the governor of Alacranes, "that the Captain General wished to get informa- tion from him in relation to certain persons." Had the arrest been made solely to collect the fine of twenty-five dollars, the fine could have been collected where Mr. Esnard had funds and friends, and he would there- by have escaped the painful incarceration of more than nine days. To secure Mr. Esnard from the despondence and alarm so apt to overwhelm the firmest when incarcerated in a Spanish dungeon, I had him repeatedly visited in prison. I have the honor to be, &c, ROBERT B. CAMPBELL. Hon. John M. Clayton, Secretary of State, Wash'mgton City. Consulate of the United States, Havana, January 24, 1850. Sir: At four o'clock yesterday afternoon I was called on by a lady, reporting herself as the wife of C. P. V. Esnard, an American citizen, who, she stated, had taken out a carte of domiciliation on the 29th of October last, had been arrested the day before at Nueva Paz, by order of the government, and brought to this city for imprisonment. The lady represents herself as knowing nothing of the cause of arrest, but states that her husband directed her to inform me, as the consul of his country, that he had been arrested, accompanied with a request that I would call at the royal prison to see him. In conformity to that request I called at* the prison, inquired for the alcalde, and was shown a person who I presume held that office; from him I learned that no such person was in prison. About 6 p. m. I was informed, by the individual who I supposed to be the alcalde of the royal prison, that he had been mistaken in telling 150 CASE OF THE BLACK WARRIOR, ETC; me that Mr. Esnard was not in confinement, as, upon examination, he discovered that he had arrived about 12 m., and that I could see him. This morning I sent my clerk to the prison, who saw the prisoner in the galera de Santa Rosa, and learned from him that he was entirely ignorant of having committed any offence upon this island, or of the cause of his arrest. The alcalde, however, informed my clerk that the prisoner had been sent by the governor of Alacranes to be placed at the disposition of your excellency. Failing in my efforts to obtain any definite knowledge of Mr. Esnard's offence, your excellency will excuse my asking of you the cause of arrest and confinement in the royal prison of the American citizen, C. P. V. Esnard. An early reply to this communication will confer a favor. I have the honor to be, with considerations of great respect, your excellency's most obedient servant, ROBERT B. CAMPBELL. His Excellency the Governor and Captain General of the Island of Cuba, fyc, fyc, Sfc. [Translation. Political Secretary's Office. The individual C. P. V. Esnard is, in fact, detained as subject to a judicial investigation, and I communicate to your lordship, for your in- formation, although being an affair of the government, it belongs ex- clusively to me. God preserve your lordship many years. Havana, 26th January* 1850. EL CONDE DE ALCOY. To the Consul of the United States. Consulate of the United States, Havana, January 31, 1850. Personally appeared C. P. V. Esnard, who declared that he was ar- rested on the 22d day of January, 1850, at his house in Vegas, depart- ment of Alacranes, and taken to the city of Nueva Paz, in presence of the lieutenant governor, by whom he was questioned : " Where he had resided during his stay on the island in July last?" He answered, " Upon his father's property." "What persons he had visited while there?" He answered, "Dr. Francisco Gonzalez, and no other." " When did he leave the island ? " Answer, " The latter end of July." " Who had given him passport ? " "Nobody." "What port had he sailed from ? " " Havana, and that he had left without a passport, with the intention of returning to Havana with his family, which he did in October last; that upon his arrival at Havana he made application for a carte of domiciliation, which was given to him a few days afterwards ; that the agent who got out the carte for him told him that his name CASE OF THE BLACK WARRIOR, ETC 151 was on a list, which he doubts not has been the cause of his (Esnard's) arrest ; that the governor of Alacranes, at the time of the arrest, told him that the Captain General wished to get information from him in relation to certain persons, although no names were mentioned ; that on the 23d instant he was sent, accompanied by the captain of the par- ish of Nueva Paz, to the prison of Havana, to be kept there at the dis- position of the Captain General; that during his stay in the prison, which was to this date, in the department called Santa Rosa, with tke thieves and cutthroats of the whole island, he was not questioned at all ; that on the 31st January he was called by the jailor and taken in the presence of a respectable gentleman, who informed him that he would be set at liberty upon paying a fine of twenty-five dollars, and that if ever he made himself liable to suspicion he would be expelled from the island ; that he answered that he had no money, as his wife had gone out to the country, but the gentleman told him that he could take his time for paying the money, and that the American consul having lent him the money he went and paid it ; but what the fine was for he is entirely ignorant, except what is to be seen on the face of the receipt given for the money, viz : for having left the island without a passport. CHARLES PETER V. ESNARD. Sworn to before me, on the day of the date written on the first page. ROBERT B. CAMPBELL. CASE OF JOHN SALINERO. Mr. Morland to Mr. Webster. Consulate of the United States, Havana, April 7, 1851. Sir : I have the honor to enclose to you herewith a translated copy of a communication which I sent to the Captain General, and of his excellency's reply thereto, in consequence of an American citizen having been taken up and imprisoned in a dungeon without being allowed any communication. I beg leave to draw your attention to the Captain General's answer to my application, by which you will see that he does not allow consuls to interfere in such cases, stating (which is true) that their exequatur from Spain only allows them to exercise the functions of commercial agents. This has been stated before to General Campbell; and unless the government of Spain permits consuls to protect American citizens so far as to give them an open and fair trial, it may be very oppressive, and grow worse and worse. In the present case the Captain General did put the individuals in communication. The United States steamship Saranac, with Commodore Parker on board, arrived here on the 19th ultimo, and sailed for Pensacola on the 3d instant. Everything is quiet here; but there are reports, credited by the Cap- tain Genera], that there are some eight or nine hundred men, embarking 152 CASE OF THE BLACK WARRIOR, ETC. from Florida to invade this island. It is understood, however, that they sail unarmed, and for Yucatan first. I have the honor to be, sir, with great respect, your obedient servant, JOHN MORLAND, Acting Consul. Hon. Daniel Webster, Secretary of State, Washington City. [Translation.] Consulate of the United States, Havana, March 27, 1851. Most Excellent Sir : I have just been informed by the friends and relatives of Mr. John Salinero, a citizen of the United States and a resident of New York, where I understand he has a wife and family, that he has been arrested, on the 25th instant, by order of your excel- lency's government, and put in prison, in a state of incommunication, without his friends having any knowledge of the cause of his arrest. I therefore request, respectfully, of your excellency, to have the good- ness to state to me the cause of the arrest of that individual, so as to have the opportunity of offering some explanations, or of making his defence, if he is accused of having committed any crime. With the greatest respect, I have the honor to be, your excellency's very obedient servant, JOHN MORLAND, Acting Consul. His Excellency Senor D. Jose de la Concha, Governor and Captain General of the Island of Cuba. [Translation.] Office of the Political Secretary, Havana. April 3, 1851. Mr. John Salinero, of whom you treat in your communication of the 27th ultimo, is, in fact, imprisoned in this city, and subject to the court of the alcalde mayor, Senor Don Justo Sandoval, before whom pro- ceedings are carried on against him, as he appears as an accomplice in a crime of falsehood. This being a mere affair of justice, to the courts of the territory that exercise it in her Majesty's name belong the prosecution and decision of the cause of the citizen to whom you refer, whose defence, by any means that he may think himself entitled to use, will be heard when the opportunity arrives. For this reason, I must remind you that the powers committed to foreign consuls in this island do not extend to their interfering in affairs of this nature, the regium exequatur annexed to the certificate of their appointment pre- scribing to them the merely commercial limits to which they must confine themselves in their powers. God preserve you many years. JOSE DE LA CONCHA. To the Commercial Agent of the United Slates. CASE OP THE BLACK WARRIOR, ETC 153 CASE OF CAPTAIN LARRABEE, &c. Mr. Trist to Mr. Forsyth. [Extract.] Washington, September 29, 1853. Sir : Among other subjects, in regard to which, owing to the con- stant employment which my duties gave me, it proved absolutely impossible to find time for making the necessary communications to the department previously to my departure from Havana in August last, and the materials concerning which I therefore brought with me for that purpose, is the case of the master and two men of the brig Franklin, of Portland, to which the enclosed papers relate, and which would have been reported at an earlier day had I uot been compelled to postpone doing so by the loss of time occasioned since my arrival in the United States by repeated indisposition, and by the exercise de- manded by extreme debility from which I have suffered, whereby I have barely been enabled to give to my private affairs the attention they required. The circumstances which led to my letter to the Captain General of Cuba, under date of May 28, 1835, (a copy whereof, A, is enclosed,) being therein detailed, it is needless to swell this communication by their repetition. From the enclosed reply (B) of his excellency, under date May 29, it will be seen that my letter was referred to the Auditor of War, the officer to whom the cognizance of the subject, under the general power of supervision and correction vested in the Captain General as supreme judge, regularly belonged ; and the course which the matter look ap- pears in detail in the accompanying copy (C) of the " expediente" or paper book, made up of all the "diligencias" or proceedings which was communicated to me by the Captain General, with his letter of July 20th (D) herein enclosed. I will state such particulars as may be necessary, to spare the trouble of reading the expediente, and afford a right understanding of the case. Agreeably to the ordinary mode of proceeding of Spanish judicial functionaries, an accident of the kind which befel Captain Larrabee|is always sufficient to seal the ruin of any man, unless he be protected by circumstances altogether foreign to the merits of his case. The first step is to throw every person, who can, by any pretext, be implicated in the matter, into a dungeon ; from which he can hope for release only when it shall suit the will and pleasure of the interminable series of auditors, fiscals, assessors, notaries, &c, &c, whose action may be requisite in the case, to reach that stage in the proceedings at which an order can issue for his liberation. If he be altogether destitute of both money and friends, there is no motive for alacrity in disposing of his case, and it drags on most heavily, or lies neglected, and perhaps entirely for- gotten. If he have, or be suspected of having, either money, or friends able to use it in his behalf, motives are not wanting to put his resources and their feelings to the strongest test ; and nothing can be more easy, 154 CASE OF THE BLACK WARRIOR, ETC. under a system where no officer engaged in the administration of the laws is ever expected to do any act as a matter of duty, and where the only responsibility or accountability attached to any office is to a court, at which nothing can be effected except by empcnas or money, and where there is nothing which may not be effected by their means. In the present instance, everything was done in behalf of Captain Larrabee which could be accomplished by the joint influence of my official interference, addressed to the Captain General, (who is an honest man, and perhaps the only one holding office in the island, and the fear of whom does, to a greater or less degree, influence the conduct of them all) and the private exertions of Mr. George Knight, of the house of Mariatigue, Knight & Co., the consignees of the vessel; who, having long and extensive experience in all sorts of transactions with these gentry, took, in the most skilful way, every step that could be taken to hasten the case to a close. Nevertheless, although it was notorious to all, and acknowledged in the Captain General's answer to my first letter, that the death of the Spanish cooper was entirely " casual" Captain Larabee was, in the regular course of proceeding required by law, immediately brought to Havana at a time when the yellow fever was raging furiously, and thrown into a horrid dungeon, in the com- pany of wretches of all shades of skin and crime, where, I am satisfied, a confinement of a few hours would have certainly caused my death, and whence it proved impracticable to obtain his release, even provis- ionally and under bond, until he had lain there a fortnight. As a great favor, granted at their peril and in violation of the law, by the mili- tary officers (whose general character is, from obvious causes, very different from that of the civil) of the guard, he was allowed, for some days previous to his release, to emerge from his dungeon for a few hours, to recover from the effects of its pestilential atmosphere. I could not with any propriety interfere any further than I did, nor even know anything of the proceedings, until the result should be officially communicated by the Captain General. But I was kept privately apprized of them by Mr. Knight, as fast as he obtained any intelligence on the subject, and in that way I learned that, in pursuance of the " dictamen," or semijudicial opinion of the fiscal of the Auditor of War, (every officer, judicial or executive, has one or more of these fiscals or assessors, whose province it is to half judge or decide what his judgment or decision is to be) the case of Captain Larrabee and his imprisonment was to be protracted by sending the proceeding back to Bahia Honda, where they had begun, for new investigations, in regard not only to the occurrences which involved the death of the Spanish cooper, but also to the previous ill-treatment of the crew of the brig Frank- lin, which had, in the course of the investigation, been alleged by the mutineers against the captain. A point more utterly foreign to the death of the Spaniard, the only ground of the whole proceeding, and the only assign- able pretext for the imprisonment of Captain Larrabee, could not be conceived, and the real object of this manoeuvre to find a new subject for proceedings and extortion was but too evident. In this point of view, however, it could not be noticed by me, even if I could have avowed any knowledge of it. But, considering that, agreeably to every prin- ciple of international law, the cognizance of all questions between the CASE OP THE BLACK WARRIOR, ETC 155 masters and crews of our vessels, retrospectively founded upon alleged breaches of the shipping contract as to services required and food fur- nished, and having damages in view, properly belonged to the author- ities of the United States ; and convinced, if the right of those of Cuba to interfere in such matters were once generally established, there would be no end to the vexatious proceedings to which our ship-masters would become subject in every port of the island, as a mode of extorting money from them, my first impulse was, to address to the Captain General a remonstrance against any such pretension. The only dif- ficulty was, that such a step would imply a knowledge that it had been advanced. This, however, I got over by founding my letter on the generally known facts, that the complaint of hard usage had been made, and that the proceedings had gone back to Bahia Honda, and the gen- eral presumption that such was the object. It was written and trans- lated, but on further reflection I determined not to send it. In the first place, by the terms of my exequator, (and all granted by the court of Spain are precisely alike,) which would be appealed, to as the rule of their government, my right of interference in controversies between masters and seamen is expressly limited to the exercise of my "arbitrio" which, in one of its senses, and probably the sense in which it is intended by the Spanish government, (whose treaties and laws show the utmost jealously and circumspection on this point,) means my arbi- tration, and implies the previous voluntary submission of the parties thereto. On the other hand, the practices which have imperceptibly grown up at Havana, in relation to consuls, are very liberal, and leave foreign seamen at the absolute disposal of their consul, so that he is enabled to exercise a powerful control over their conduct in all respects ; and where he cannot himself decide on their complaints, he may put them under the necessity of waiting until they can be brought before a court in the United States. For instance, as happens there among our shipping every week, and sometimes every day in a week, a seaman or two, or a whole crew, with or without cause, get the devil into them, refuse to do work, and come to the consul to demand payment of wages, damages, and their discharge. He examines into the case, and finds that, although they may, by our laws, be entitled to damages for the usage they have received, (which is but too frequently the case,) they are not entitled to their discharge. He tells them so, and that they must wait to be righted by a jury in their own country, and he requires them to return to duty. If they prove unmanageable, he gives to the master an order (in its terms a request) to the captain of the port for their arrest and confinement until the vessel be ready for sea, or they see fit to return to their duty, which they generally do very quickly. Except under circumstances which do not allow it to be waited for, a seaman is never arrested without this order from his consul, and, being founded on the fact of mutinous conduct, it is considered as bringing him under his exclusive custody. This mode of proceeding, together with the difficulty of communication with lawyers and magistrates, arising from the difference of language, proves a practical protection against our seamen having recourse to litigation there, which would never be attended with any other result than to strip them of any loose cash they might have or be entitled to, and subject the masters to ex- 156 CASE OF THE BLACK WARRIOR, ETC tortion for the exclusive benefit of the judges, &c., for recourse would necessarily be had in every case, by the master or his consignee, to the only argument in which they can perceive any force, or by which a cause can be made to move ; and the seamen would invariably be found, prima facie, in the right, but, on full investigation, in the wrong. The established custom being such as I have stated, I thought it dan- gerous to raise, in this case, a general question; the agitation of which, by awakening attention to a power so calculated to subserve their notorious rapacity as that of receiving complaints of seamen against their captains, might lead to general results of a permanent character, the most injurious to the interests of our shipping. In the next place, I knew that, at the very quickest step known in the tactics of Spanish law officers, even with the fear of Tacon in their hearts, the various reports on which the official determination of such a question must depend, would, on the most favorable calculation, require from three to twelve months in their production ; and that it would, to a certainty, be mixed up with the case of Captain Larrabee, so as to expose him to all the evils of such a delay. Governed by these considerations, I confined myself to a simple demand made in my letter (E) of June 15, 1835, of the two seamen in question, as offenders against the laws of the United States, whom it was my duty to send home for trial. This demand did not require any reference to the inquiry which had been ordered with regard to the treatment of the crew by Captain Larrabee; and I entertained a hope that an order might forthwith issue from the Captain General, putting them at my immediate disposal, in which case I proposed to send them off by the first merchant vessel; and, by thus removing the chief if not the only complaints, to cut short a proceeding which might last, there was no conjecturing how long, and subject Captain Larra- bee to new sufferings, and his owners to ruinous expenses and delays. This hope, however, was not realized. My letter was referred to the Auditor of War, whose fiscal, as appears from the expediente, decided, on the 2d of July, that he reserved his opinion upon it until the inquiry above referred to should be brought to a close. To return to the circumstances immediately connected with the imprisonment of Captain Larrabee : The first decision of the auditor's fiscal, as was at the time privately learned, required that before any opinion on the merits of his case could be given, the widow of the de- ceased must make a notarial declaration, whether she renounced or adhered to her personal actions against Captain Larrabee, which com- prised an action for a maintenance for herself and children. This renunciation being a sine qua non to his release from his dungeon, every hour's confinement in which endangered his life, it had to be bought ; and the captain being very poor, and altogether unable to sup- ply the means, the necessary sum had to be raised by subscription. Fortunately, the widow proved to have some conscience, and made the renunciation at once, on receiving the assurance that something better than what could be wrung out of the prisoner's substance would be raised for her. Mr. Knight authorized me to subscribe six ounces ($102) for his house, as I did for myself, and the list thus cammenced was carried to between one and two thousand dollars ; not, however, CASE OF THE BLACK WARRIOR, ETC 157 without the necessity of a resort to other consuls and foreigners, that took place without my knowledge, and in violation of the heading of the list, and of my letter accompanying it, which were addressed, and confined the subscription, exclusively to American ship-masters and other citizens. As was very natural, the incarceration of Captain Larrabee caused a high excitement among the masters of our vessels, of whom there were upwards of ninety then in port, and, as was also not to be wondered at, from the ignorance and unreasonableness of the greater portion, this excitement was, in the minds of many, directed against me, for not procuring, by a wave of my consular sceptre, the instant liberation of this American citizen. The renunciation of the widow being obtained, and his consignees having given bonds for his appearance, Captain Larrabee was released from prison and permitted to go to Bahia Honda, whence, on com- pleting the lading of his brig, he returned in her early in July. There being no assignable pretext for any further suspension of his case, he had every right to expect his immediate discharge, so as to enable him to put to sea as soon as his vessel should be cleared, which was but the work of a few hours. His disappointment in this just expectation caused me, after waiting several days in the hope that the necessity for my further interference would be obviated, to address to the Cap- tain General my third letter, of July 9, (F,) which also was referred by his excellency to the Auditor of War, the decision of whose fiscal, ap- proved by himself, was at length brought forth, under date of 15th July, and was instantly acted upon, in the final instance, by the Cap- tain General. In this decision, besides an acknowledgment that the death of the Spaniard was purely accidental, the allegation of ill-treatment of the crew is stated to have been entirely disproved ; and the latter circum- stance is made a distinct ground of the captain's acquittal and escape without any penalty or punishment, thereby implying their right to prose- cute an American ship-master criminally, on the allegation of having required too much work of his crew, and given them bad fare. It then proceeds (after a reservation of the principle that it belongs to the local authority of every country to punish those who offend against its laws, and that therefore the offences of the crew of the brig Franklin may and ought to be judged by " this superior government,") to consent that, without prejudice to his jurisdiction, and in the spirit of cultivating the harmony, &c., with the United States, the seamen may be delivered up to the consul, &c. This parade of the right to judge the local offences of the crew, which had never been called in question, and when the prosecution of Captain Larrabee had been the sole object of their whole proceeding, which was the only one they cared about or even contemplated, is a fair sample of the way in which these people always bring forward some common-place, as a means of shuffling out of view the real points of the case. The British con- sul has repeatedly told me that in his discussions with them he al- ways receives some prolix compound of irrelevancies, in which the point in question is not so much as approached. And this is ascribable not only to their rooted habit of ill-faith in all transactions, but also to 158 CASE OF THE BLACK WARRIOR, ETC. their indolence and ignorance, whence results an absolute incapacity to do justice to a subject, even when they may chance to be so disposed. The decision winds up with strictures upon my interference, to this effect: first, the "tribunal" (that is to say, the auditor and his fiscals, in secret conclave in his bed-chamber, or bed, perhaps.) had never decreed the detention of the vessel ; and if this resulted from that of the persons proceeded against, it afforded no ground for my reclamation, inasmuch as those persons might have been replaced by others ; sec* ondly, the case having been conducted in the course established by the laws, there has been no delay in bringing it to a conclusion ; and thirdly, that it is highly desirable that, confining itself to its functions of repre- senting the individual interest of the subjects of its government on proper occasions, the consulate should not overstep the limits defined by the laws and reciprocal treaties, and should thus leave the authorities in the free exercise of their attributes. The reason assigned under the first of these heads is specious ; but, in such a case as this, it was, as they well knew, 'practically untrue ; and the confinement and detention of Captain Larrabee (even inde- pendently of the costs of the proceeding, in the way of fees and dou- ceurs, the latter of which always constitute by far the heaviest item) was unavoidably attended with serious pecuniary loss to all interested in the voyage. And knowing well that the most serious if not the only real responsibility which a Spanish officer could incur in such a case towards his government would be that of subjecting it to claims for money, I have never omitted to present every subject of the kind in a way calculated to awaken this idea in their minds as strongly as the circumstances of the case allowed. With regard to the second head they would have said the same thing, and with just as much truth, had they made the case last twelve months or twelve years. God help the man who once gets the clutches of Spanish judges upon him, and has nothing to depend upon but " the course established by the laws!" The third branch of these strictures manifests the vexation of the auditor and his first fiscal * * * * * at my interposition ; and it is not to be wondered at, seeing that I can at any moment, and without an hour's delay, bring to this Captain General's knowledge any fact I see fit to ask his special attention to ; whereas, in the course established by the laws, an appeal to him on the proceedings in a case, before it be regularly matured, must, of ne- cessity, be always a matter of extreme and generally insurmountable difficulty. These objections offer an excellent opportunity for address- ing a representation to the Captain General on the subject of consular powers, as I propose to do on my return, if, on a thorough exami- nation of the subject, it should appear advisable to agitate it. Their treaty with us stipulates only for the footing of the most favored na- tions ; and that with France, which, as they affirm, gives the general rule in relation to the powers of consuls, as it does, of course, to those of France, reduces them to mere cyphers. And if this proves to be the case, as it appeared to be on a close inspection of all the documents that I had the opportunity of obtaining any knowledge of, the less that is said about the matter the better. But if it prove to be otherwise, as CASE OF THE BLACK WARRIOR, ETC 159 the British consul informed me, just before I left Havana, would appear from the last treaty with Great Britain, it will be most important to come to such an understanding on the subject as will put the interests of our shipping beyond the reach of their villany. Although the office of consul will, everywhere, even in the most civ- ilized country, conduce to the convenience of commerce, and its security against the petty vexations to which, even if they be not brought upon them by any other course, mariners will subject themselves through ignorance and inadvertence ; yet, in a truly civilized country, the ne- cessity for a consul is of very secondary importance. Bat under such an atrocious system as that of Spain, which combines all the evils of the absence of. all government, where no man is secure; and of the total extinction of individual liberty, where no man is allowed to de- fend himself— the case is very different. From what I know of the rapacity and irresponsibility of its functionaries, I had much rather risk my person and property in a tolerably armed merchantman at the an- chorage of Quallah Battoo, than that they should be in a port of Cuba, unprotected by a consul, and subject to the various casualties which might put them at the mercy of the Spanish authorities, proceeding un- checked "in the course established by the laws." Even the unlimited power of supervision and correction vested in the Captain General, although exercised by a man so unique in their service as the present Governor, is a totally inadequate protection — it being utterly impracti- cable for one man, however vigilant, honest, and severe, to hold in check the universal rapacity which constitutes the sole spring of action in the whole administrative branch, from the constable to the highest judge. Hundreds of cases must occur every day, in relation to which he is under the necessity to adopt, without examination, in regard to both facts and law, the views of others ; and it is only to those of a most flagrant nature that his own examination can be occasionally given, even when the difficulties of bringing them to his notice have been surmounted. The two mutineers of the brig Franklin having, in the way stated, been put at my disposal, the only course left me was to pursue that with reference to which I had made the demand ; although my chief motive in making it, and but for which I. should have scarcely deemed it worth while to make it at all, no longer existed. I deemed them, under the circumstances of the case, a sufficient ground for at least hinging against these men the charge of revolt or piracy, and going through the form of sending them home as prisoners, rather than that they should be turned loose without any show of pro- secution ; which, after all the trouble and excitement to which the case had given rise, and the sufferings which their misconduct had brought upon their captain, would have had a very bad effect upon our seamen in that quarter. It is proper to add, in regard to my communications to the Captain General, that, except in cases of mere form, they were al- ways sent in the Spanish language. Any communication addressed to him in any other, is subject to delays arising from its necessary reference to some government translator, who always takes his own 160 CASE OF THE BLACK WARRIOR, ETC time about it, and may, if he have any motive, carry the delay to a ruinous extent ; and, what is worse, its meaning is ever liable to total perversion. I do not know of one of these translators who is capable of making a decent version of any paper in the English language ; and if they were all ever so capable, there would be no security against intentional perversion. My only chance of conveying my real senti- ments and views on any subject to the Captain General, or any other functionary, was, therefore, to send them in the Spanish language ; my acquaintance with which, although very limited, is sufficient to ena- ble me to judge if my meaning be exactly rendered. The certainty that it would always be wretchedly perverted by one of their official translators, besides being known to me from the general character of such of their productions as I have seen, was in every instance brought forcibly home to me, by the great difficulties encountered in getting a faithful version made under my own eye ; although I employed the most capable man in that line at Havana, (whom I know the official translators have recourse to, in their straits) with the advantage, too, of explaining my meaning to him in French, when he did not seize it in English. The trouble and time required by every communication was thus at least quadrupled. But it was better not to write at all, on any subject requiring delicate treatment, (and this was more or less the nature of every subject, except mere matters of form, on which I had to make a communication,) than to expose my matter and manner to the certainty of perversion. This departure from the diplomatic rule of making all official communications in the language of the writer, being therefore a matter of absolute necessity, to secure the object I might have in view, I entertained no doubt of its propriety ; only taking the utmost care, as I always did, that my precise meaning, and nothing else, was conveyed. The perusal of this letter must, from its length, if no other cause, prove a very tedious job. But the necessity that I should convey some idea of the circumstances in which I was placed, in regard to the various aspects of the subject, will, I trust, be deemed a sufficient apology for the tiresome details into which I have entered. I am, sir, very respectfully, your obedient servant, N. P. TRIST. Hon. John Forsyth, Secretary' of State. Consulate of the United States. I have just received from Messrs. Mariatigue, Knight & Company, consignees of the brig Franklin, of Portland, intelligence of a most un- fortunate affair that occurred at Bahia Honda, on the 25th instant, in relation to which I beg leave to trouble your excellency with the fol- lowing statement and request. The said vessel, commanded by Captain Nehemiah Larrabee, a highly respectable man, left here on the 15th instant for Bahia Honda, to take in a cargo of molasses, having on board, for the necessary work to be done to the hogsheads, two coopers of this place, named Jacinto Munson and Andrez Fer. CASE OF THE BLACK WARRIOR, ETC 161 On the morning of the 25th instant, when Captain Larrabee came upon deck, he perceived that his long-boat and two of his crew were missing. He immediately got into his. small boat, with three of his seamen to row her, and accompanied by the two coopers above named, to assist him against his mariners should they all turn against him ; and having done so, he proceeded to the mouth of the harbor, where he saw his launch pulling out to sea, and pursued her. Not having confi- dence in the fidelity of any of his crew, he had taken with him a gun, two pistols, and a sword. The sword and pistols he gave to the two coopers, keeping in his own hand the gun. When he had got near enough to the launch he hailed his two men, who were rowing her, and ordered them to stop, but they did not pay any regard to him. He then fired a shot at the boat, but this had no effect. He continued the pursuit, and, having approached still nearer, again ordered them to stop ; but they still persisted rowing away from the harbor, when he fired another shot, which caused them to stop. When the small boat got up with the launch, Captain Larrabee jumped into the launch, and one of the two men showing a disposition to persevere in the mutiny, Captain Larrabee struck him with his gun, which, though at the half- cock, went off. The load, most unrortunately, entered the head of the cooper, Jacinto Munson, who was in the other boat, and caused his immediate death. Captain Larrabee immediately proceeded to the fort, and they were all taken into custody. My object in troubling your excellency now is to. state these facts, of the accuracy of which I have no doubt, and to ask, if it be consistent with your excellency's view of what is proper in the case, that Captain Larrabee may be permitted to take in his cargo without interruption, and bring his vessel round here ; or, if your excellency should think it not proper to trust him at sea, that he be allowed to take in his cargo under any guard which may be thought necessary, and then be brought here in such way as your excellency may see fit to order. The taking in a load of molasses is a work which requires constantly the eye of the master of the vessel; and if Captain Larrabee should experience a long confinement at Bahia Honda, or should be obliged to come here before his cargo is all taken in, the consequence will be a long detention, which will probably result in the ruin of a poor and honest mariner, who is already, sufficiently afflicted w T ith the calamity of having taken, however unintentionally and innocently, the life of a worthy man, who was in the act of rendering him service. God preserve, &c. Havana, May 28, 1835. N. P. TRIST. Exemo. Sor. Don Miguel Tacon, &c, &c, Captain General, fyc., fyc Consulate of the United States. William Marion and Ellis (alias Ezra) Buzzle, the two seamen be- longing to the brig Franklin, of Portland, who committed the crime of putting to sea in the boat of said brig, and revolting against their cap- 162 CASE OF THE BLACK WARRIOR, ETC. tain when overtaken by him, which led to the fatal accident that oc~ -curred at Bahia Honda on the 25th of last month, have thereby offended against the laws of the United States in a degree which makes it my duty to send them home for trial and punishment. I have therefore to request that your excellency will give the necessary orders for putting them at my disposal, and securing against their release until I shall find an opportunity for sending them away. God preserve, &c Havana, June 15, 1835. Exemo. Sor. Don Miguel Tacon, Captain General, tyc, &fc, fyc N. P. TRIST- CoNSULATE OF THE UNITED STATES. I beg leave to call your excellency's attention to the case of Captain Nehemiah Larrabee, of the brig Franklin, of Portland, whose misfortune in accidentally causing the death of a fellow-being has been not a little aggravated by the confinement experienced by him for some time in the callaboso de la fuerza, and by other harassing circumstances in the measures which it has been judged proper to pursue on the occasion. After his release from the callaboso, Captain Larrabee returned to Bahia Honda, where he had been compelled to leave his vessel ; and having completed her lading there, he brought her to this port, where she was cleared several days ago, and is now detained, to the serious injury of her cargo, (molasses) and of her owners in various other ways. Captain Larrabee having applied to me to know the cause of his deten- tion, I am altogether unable to give him an explanation of it, except that the proceedings (providencia) in the case are not closed; but Avhy they are not closed, it is out of my power so much as to imagine a reason. I am, therefore, under the necessity of asking the favor of your excellency to take the subject into consideration, and cause everything to be done which may properly be done to prevent the further deten- tion of said Captain Larrabee in this port. God preserve, &c. Havana, July 9, 1835. N. P. TRIST. Exemo. Sor. Don Miguel Tacon, Captain General, Sfc, fcc, Sfc. Mr. Robertson to Mr. Marcy. Consulate of the United States, Havana, March 9, 1854. Sir : I hasten to fulfil the promise I made in my dispatch No. 38. The"judicial tribunals in the island of Cuba are as various as the modes of procedure that each one of them has adopted. The tribunals proceed according to their special regulations, in conformity to the divers and even contradictory Spanish laws, and also in conformity to tJASE OF THE BLACK WARRIOR, ETC 163 the practice of the royal audiencias of the island. (There is one audi- encia only at present, called the " Real Andiencia Pretorial de la Habana " that of Puerto Principe has lately been suppressed.) The following named tribunals exist : The court of the royal ex- chequer, tribunal de real hacienda. The war or ordinary military court, tribunal de guerra 6 militar ordinario. The permanent and executive military commission, tribunal de la comision militar exseculivo y permanente. Special court of the navy or marine, tribunal privativo de la real armada 6 marina. Special artillery court, tribunal privativo de artilleria. Special engineers' court, tribunal privativo de injenieros. Tribunal of commerce, tribunal de comercio. Tribunal of the church or ecclesiastical, tribunal eclesidslico. The ordinary or common courts, that judge all matters not coming within the jurisdiction of the various tribunals above mentioned. As the island is divided into various governments, and lieutenancies of government, politico-military, each governor and lieutenant governor has jurisdiction as adjudge of first instance (juez de primera instancia) upon all civil and military matters within his district. There is another court, called "Juzgado de Difuntos" attached to the royal audiencia, that has jurisdiction upon all property belonging to resi- dents dying intestate, when the heirs are abroad. v The delays and ex- penses for the settlement of such estates, caused in said court, are not equalled In any other part of the world. Each court has the simple and mixed imperium — that is, each has power to render sentence and enforce or execute the same. However, the decisions of the tribunal de real hacienda are appealable to the junta superior contenciosa. Those of the ordinary military court, if one of the parties to the suit is an officer of militia, may be appealed against by petitioning that the cause be re-examined or revised : this revision is effected by the judge of the first instancia, (the Captain General,) 'with his auditor de guerra, and another lawyer appointed for the case. If no one of the parties is a militia officer, the appeal is admitted and carried before the supreme court of war and navy, supremo tribunal de guerra y marina, residing at Madrid, where the parties must appear personally, or appoint attor- neys, to whom they are to furnish full instructions and the means to pay expenses. To the same superior court must go all suits appealed from the marine, artillery, and engineer courts. Against the decisions of the ordinary or common civil and criminal courts, appeals may be carried to the real audiencia pretorial, which superior court resolves upon them in second and third instance, (en se- gunda y terciera instancia,) according to the amount or thing that is in dispute ; and even these decisions may be appealed against and carried before the supreme court of justice in Madrid, whose first sentence may be revised. To make even a brief report of the various regulations of each one of these tribunals, would require many days, and to write some reams of paper. It is sufficient to know that in all of the tribu- nals, besides their special regulations and the laws of the Indies, the followins^Spanish codes are in use : Fuero juzgo, Fucro real, Leyes del Estilo, Las siete Parlidas Ordenamiento de Alcald, Ordenamiento Ileal, Nucva Recopilacion de Castilla, Novissima liecopilacion, Ordcnavzas Mu- nicipales, Ordenanzas de Intendentes de Nucva Espana, Cod/go de Comercio, 164 CASE OF THE BLACK WARRIOR, ETC. Sinodo Diocesana, Reglamento de Milicias, and other various codes which it is not necessary to enumerate ; also all the royal ordinances and orders that, in a prodigiously large number, emanate from the sovereign of Spain. The most general practice in the proceedings of what is called a common civil suit, juicio civil ordinario, is the following : In the first place, the plaintiff must appear before the court and de- sire that the defendant be summoned before the same for the juicio de conciliacion ; in this act the judge endeavors to bring the parties to an amicable settlement. No suit at law can be carried on without having gone through that form, as all subsequent proceedings, no matter in what stage the suit may be, are illegal, and may be made null and void, if that prerequisite has not been complied with. If the parties come to no arrangement, the act is recorded. The plaintiff, if he de- sires to establish a suit at law, procures a certificate from said record, and then presents before the proper court his demand against defendant, in writing, upon stamped paper, accompanying the certificate before mentioned. The plaintiff's demand is ordered to be notified to defend- ant, and is called contestation : of this notification is given to the plain- tiff, which is called replica ; then the defendant or accused is again notified under the name of duplica. The cause is afterwards brought to proofs for the term that the judge may consider necessary, which term may be prorogued to ^eighty days, or even to six months, if the proofs or evidence are to be received abroad. When the term has elapsed, the evidence is made public, (to the parties,) and then the parties may challenge the witnesses. This proceeding lasts for a short time ; and when decided upon, the autos (papers connected with the suit) are handed to the parties in the suit that they may plead, (alegar.) After the pleadings have been gone through, sentence is rendered. If the sentence or decision is not appealed from within five days after, the judge that issued it has' it executed, and sometimes sixty days are allowed to argue against it as null. When the sentence is appealed against, the suit is carried before the audiencia as a superior court, where it is examined and decided upon. The first decision of the su- perior court may be approved or revoked on a revision. In criminal cases, the same modes of procedure must be observed, according to existing laws ; but the audiencias have restricted the pro- ceedings and length of time formerly allowed for the defence. The present practice in criminal cases before the common courts is reduced to the following: 1. The summarial investigation of the criminal act; this is generally done by the commissaries of wards or 'captains of districts. Z. The charges are made known to the accused and his confessions taken. 3. Answers of the accused and his assertions against the charges received. To this precedes the appointment of counsel, whom the ac- cused selects himself, if he is aged twenty-five years or upwards ; and if a minor, he nominates a guardian, or curator, ad litem. 4. The proofs are received during the time that the judge may deem proper. 5. Sentence is rendered ; which, whether it be appealed from or not, CASE OF THE BLACK WARRIOR, ETC. 165 is carried to the audiencia, who confirms, revokes, or amends the sen- tence, either in favor or against the prisoner. The Governor and Captain General is an authority very difficult of defining; it is still more difficult to define what his attributes are. The all-powerful authority that he comes clothed with by secret royal orders, is the cause of the difficulty. He, the Captain General, may act agreeably to his own will, or according to circumstances ; so that, although his powers are determined in the common laws that have been promulged, still there is a great difference in the practice. There are many facts to make evident that the Governor and Captain Gene- ral has authority superior not only over all corporations and tribunals of Cuba, but even to that of the sovereign, as he revokes or amends the decisions of her tribunal and corporations, annuls or alters all regulations, and even leaves unfulfilled the sovereign's orders when he, (the Captain General) deems it proper. v The Governor and Captain General is the chief of the island in all respects. He is the chief in civil, military, and naval affairs, as well as those appertaining to the royal treasury. And as the sovereign is the natural patron or protector of the church in the Spanish dominions, the Captain General is her vice-royal patron in Cuba. His legal powers are expressed in the laws of the Indies, and' in a multitude of royal orders, all of which cannot be seen, some of them being secret. Executive and permanent military commission. — This tribunal was estab- lished in Havana by order of the Governor and Captain General, on the fourth of March, 1825, to try all cases of conspiracy and treason, and robbery, murder, and other crimes committed on the highways or in the country, out of the jurisdiction of cities or towns. On the 16th October of the same year, (1825,) as such tribunals had been suppressed in the whole of Spain, the King ordered the suppression of that in Cuba. That royal mandate remained unfulfilled, because the Captain General deemed it proper that it should subsist. In the royal order of Novem- ber 3, 1838, greater powers were given to this military commission, as the jurisdiction over causes before it cannot come in competition with that of any other tribunal in cases of doubt, be it of any class and nature whatsoever. There is no appeal or human recourse from its decisions, as will hereafter be seen, relative to the mode of executing its sentences. The tribunal is composed of a brigadier, who presides ; four members of the rank of majors or colonels of the regiments that garrison the city, or attached to those regiments ; four or more fiscales, (prosecuting offi- cers,) of the rank of captains or majors, each with his respective secre- tary, who is also military, of the rank of lieutenants or sub-lieutenants. The mode of procedure of said commission or court is contrary to all Spanish legislation subsisting, and to all rational jurisprudence ; as the mere denouncing that an individual is engaged in a conspiracy, or is suspected of holding treasonable ideas, whether the denouncer is pres- ent or absent, even in a foreign country, is sufficient. The military com- mission commences its proceedings by taking possession of the accused and all his papers ; the person of the accused is secured in a bartolina, (dungeon,) and entirely incommunicated, that is, debarred from all communication with his family, friends, and the world, until the pre- ventive proceeding called sumario, (the taking of his confessions, the 166 CASE OF THE BLACK WARRIOR, ETC. informing him of the charges, and receiving the declarations of wit- nesses, &c, have been concluded. * The melancholy and horrible spec- tacle has been very commonly seen of the accused dying in the prison during the incommunication. Very often the accused, after a long im- prisonment of that nature, are set at liberty, because no evidence of guilt could by any possible means be established against them. This barbarous system destroys all social guarantees. Neither the subject of the country, nor the foreigner, the child or the old, nor any human being, is exempted from coming under this tremendous tribunal. . The proceedings in the causes before said court are diametrically opposed to the general laws of the kingdom, and contrary to reason or equity. The following is the manner in which those causes are established, which always put in imminent danger the lives and fortunes of men, and the welfare and peace of families. . After one or more persons have been denounced, or the least sus- picion entertained against him or them, their bodies are put in prison, &c, then the investigations that the fiscal thinks proper are com- menced. That officer is entirely at liberty to form judgment upon the investigations he has made, and the result depends thereupon. All his proceedings are secret. When the summarial examination has been concluded, and the fiscal deems it proper, the confessions of the accused are received, and charges are preferred against him without informing him of the nature of the summarial investigations, or the names of the witnesses who have testified against him, and he is made to select a defender out of the ten or twelve officers whose names appear in a list made out by the fiscal, (the officer for the prosecution.) The officer named (who generally has no idea or knowledge of the law r s, and in some cases, cannot even write his own name in a readable manner) makes out some sort of written defence, a mere form, because, being entirely ignorant of the laws, very little or nothing can he do in favor of the rights of his client. These defences are made within the peremptory and brief time allowed to the defender, and out of the memoranda of notes given to him, or that he extracts from the pro- ceedings. A day is appointed when the cause is brought before the court, and the military judges decide upon it and issue their sentence. This sentence is reported to the Captain General, who refers the same to his auditor de guerre, and with the advice of this officer confirms or revokes the sentence, or amends the same, and the resolution of the Captain General is executed without appeal or recourse of any nature. From the foregoing, the following conclusions are arrived at : 1. That the government of Spain has acknowledged and resolved that the tribunals of the military commission are not good; that it has suppressed them in the peninsula, and retained them in Cuba. 2. That the proceedings and modes of substantiating the causes over which such tribunals have jurisdiction, are contrary to the general laws of the realm. 3. That the military judges and defenders, who have no knowledge of the common law, judge according to their will and by military laws, which are not those established for the people. 4. That the inquisitorial system of secresy, in all proceedings, CASE OF THE BLACK WARRIOR, ETC 167 destroys all social guarantees, and makes the lives, liberty, and fortunes of men depend upon the intrigues of a villain. 5. That as the accused is compelled to choose a defender from among the officers whose names are written down on a list, and lim- ited in number to ten or twelve, he is deprived of a natural defence, and prevented from selecting the person that he may consider proper and capable for such a delicate trust. "' 6. That there being no appeal or recourse from the decision of the military court, and subsequently from that of the Captain General, the will of the said Captain General is the supreme law that disposes ot the life and fate of every human being in Cuba. The lawyers I have consulted advise me that, to avoid the confusion that the reading and studying of so many codes, regulations, and royal orders would produce, and to escape the many contradictions of the same, it is best to consult the work written by Don Jose Ma. Lamora, formerly chief justice (regente) of the audiencia of Havana, called Biblioteca de Legislacion UUramarina. This work is considered to con- tain all that is important. It is now very scarce. The price, like that for every other book here, is extravagant; but 1 have the pleasure to be able to send you a copy of it. I had omitted to state that the audien- cia has exclusive jurisdiction over causes for slave trade. I have the honor to be, sir, with great respect, your obedient servant, WM. H. ROBERTSON, Acting Consul. Hon. William L. Marcy, Secretary of State of the United States. ANNULLING OF THE CUBAN DECREE OF OCTOBER 7, 1844. Mr. Buchanan to Mr. Irving. [No. 43.] Department of State, Washington, May 9, 1845. Sir : On the 7th day of October last the supreme authorities of Cuba issued a decree, a copy of which, in translation, is herewith trans- mitted to you, authorizing the importation, duty free, of lumber and other articles necessary for building, and of corn, corn-flour, beans, Irish potatoes, and rice. This decree, by its terms, was to continue in force during six months from its date. It was dictated, as you will perceive, by a desire to relieve the distress of those who had suffered by the dreadful hurricane which the city and environs of Havana had then just experienced. No citizen of the United States could have supposed that the operation of a decree so humane and so politic would be arrested by the home government before the brief period had elapsed to which it was limited ; and this more especially, after the confident conviction, expressed on the face of the decree itself, that her Majesty would give it her approbation. On the faith of this decree our merchants, with a laudable prompti- tude, imported into Havana the materials for rebuilding the houses of CASE OF THE BLACK WARRIOR, ETC the suffering people, and the flour, rice, &c., necessary for their subsist- ence. Whilst this trade was in full progress, the decree itself was annulled, without one moment's previous notice, on the 25th of Feb- rury, 1845, by the promulgation of the fact that her Majesty had re- fused to give it her sanction, and that the former duties must hencefor- ward be levied. Many heavy shipments had been made in the United States of the articles embraced by the decree, under the confident belief that it would continue in force until the seventh day of April ; and you may judge of the disappointment with which the information of its repeal must have been received by the masters of those vessels upon arriving at Havana after the 20th of February. Severe losses were the inevi- table consequence ; and these ought, in justice, to be borne by the Span- ish government, which has received heavy duties on the articles that ought to have been admitted free. It would be a vain labor to enlarge upon the injustice of annulling this decree without any previous notice, and its violation of the com- mercial usages prevailing among enlightened nations. In the opinion of the President, those of our fellow-citizens who imported any of the articles embraced by the decree into Havana between the 20th Feb- ruary and the 7th April, 1845, without any knowledge, at the time of their departure from the United States, that the decree had been an- nulled, are entitled to be indemnified by the Spanish government for the losses which they may have sustained. "Without stating specifi- cally what ought to be the measure of this indemnity, it would seem reasonable that, at the very least, the duties actually received upon the importation of these cargoes ought to be refunded by the Spanish gov- ernment. I transmit herewith a copy of a communication from Mr. Campbell, the consul of the United States at Havana, to the Count de Villanueva, intendente of Cuba, dated on the day the fact of the Queen's reversal of the decree was made public, solemnly protesting against the pro- ceeding, and a copy of the reply which his excellency thought proper to make on the occasion. I transmit also a copy of a memorial from the Charleston Chamber of Commerce, and translation of the decree of 7th of October, with copies of other papers relating to the same subject. With the motives and policy of her Majesty in reversing a decree dictated by humanity, and apparently by the best colonial interests of Spain, this government has nothing to do ; but it has a deep concern in everything which affects the safety of the commercial intercourse be- tween the two countries. And in submitting the facts here presented for the consideration of her Majesty's government, you are instructed to express to the Minister of Foreign Relations the confidence felt by your own government that prompt and effectual measures will be taken to repair the wrong which has been done to citizens of the United States. Your dispatches No. 62, inclusive, have been received. I am, sir, respectfully, your obedient servant, JAMES BUCHANAN. CASE OF THE BLACK WARRIOR, ETC 169 Consulate of the U. S. of America, Havana, October 14, 1844. Sir: By the public journals forwarded by this consulate you will have seen that all duties for six months have been taken off the articles of rice, corn, com meal, lumber, potatoes, &c. In this condition ot things I would respectfully suggest that the discriminat.ng tonnage du- ties between Spanish and American vessels m the ports of the United States, where the former are loading with free articles for this island, be emoved for the space of time in which they are admitted free from duty. Such a modification would not injuriously affect our navigating inteLts, nor benefit that of Spain, for it is doubted if any Spanish veLel enters into the trade; the effect, however, might be beneficial, as evidencing, on the part of the United States, a disposition of recipro- city in the removal of commercial restrictions. Not that the authori- ties here, in the present instance, have been prompted in their action by auoht but the necessities of the island. They are, however, dis- posed to lessen duties generally on American products, so far as the intendente and his council feel authorized. In the article of flour, in which our western States are so vitally in- terested, I have endeavored, in conversation, to impress upon them the importance to the island of more moderate duties, and have discovered a favorable disposition. My suggestion in relation to the tonnage duty is made with a view to this great interest, the extent and importance of which needs no comment from me. I cannot, however, promise that the adoption of my recommendation will insu fi re /, mod ff f p C ; t ^ il ° f the present onerous daty upon flour, but am satisfied the effect would be to strengthen the parties interesting themselves about a reduction. I have the honor, &c, R. B. CAMPBELL. Hon. J. C. Calhoun, Secretary of State. Consulate of the U. S. of America, Havana, February 26, 1845. Dear Sir: I have the honor to enclose to you a copy of an official communication addressed by me to the intendente, on the subject ot the restoration of the duties on certain articles, which, by the decree of the 7th of October last, were admitted free. Accompanying this communication you will receive a translation of his reply thereto. I have the honor, &c, ROBT. B. CAMPBELL. Hon. John C. Calhoun, Secretary of State, Washington. 170 CASE OF THE BLACK WARRIOR, ETC. Consulate of the United States, Havana, February 20, 1845. Sir : I have been astonished to find in the Diario of this morning an official communication from your excellency to the effect that her Majesty has refused to sanction the measures adopted by the authori- ties of this island, and promulgated by the publication of a decree dated October 7, 1844, which authorizes, free of duty, the admission of certain articles for the period of six months from the date of that decree, provided the royal assent is given thereto ; and in consequence of the royal disapprobation of the said decree, the duties are now restored. The. citizens of the United States of America engaged in commercial transactions with this island had well-grounded reasons for supposing that the royal approbation would not be withheld. No fears were en- tertained that the duties would be restored until the expiration of the time stipulated, and on these views have their transactions been based. They presumed that the authorities of this island were well acquainted with the wants of the inhabitants, that they had reflected maturely on the steps they had taken, and had the best opportunities of knowing what would be the action of her Majesty. These Considerations, and their confidence in the integrity and wisdom of your excellency and your advisers, induced large shipments from the United States, con- tributing to the comforts and relieving the necessities of her Majesty's subjects who were suffering from the effects of the disastrous gale that caused the remission of the duties. It is moreover understood that there has been an increased revenue from imports, and that your con- cessions to suffering humanity have not diminished the revenues, there-, by giving additional force to the conviction that your order of 7th of October last would not be repealed. There is known to be in transitu from the different ports of the United States, predicated on your previous order, large quantities of rice, lumber, and all the various articles em- braced in that order ; and if the shippers are compelled by this sudden and unexpected edict to pay duties, they must sustain great and unjust losses; against all which, in their name, I solemnly protest, as no timely notice of the intention of this government had been given — a notice, in my opinion, good faith and common usage required. The observance of which faith and usage I must urge upon your excellency, so far as to suspend the execution of the decree for such a limited period as will protect the innocent and deceived shipper, and save others from the disastrous effects of this precipitate and unforeseen action. I have the honor to be, &c, your excellency's, &c, ROBERT B. CAMPBELL. Havana, February 26, 1845. Sir: According to the royal instructions which govern this treasury in regard to foreign consuls of the island, the department does not deem itself competent to take cognizance of the subject referred to in your dispatch of the 20th inst., which I state to you as a reply, to be used in the manner you may judge most expedient. God preserve your worship many years. EL CONDE DE VILLANUEVA. CASE OF THE BLACK WARRIOR, ETC 171 The Charleston Chamber of Commerce to Mr. Buchanan. Charleston, S. C, April 14, 1845. The memorial of the Charleston Chamber of Commerce respectfully represents, that your memorialists, taking into view the late act of the Spanish government, would beg leave to bring to your notice the great injury done to the merchants engaged in the trade between the United States and the island of Cuba, and to request that the subject may be taken into consideration by you, and redress obtained if practicable. The losses are heavy, and brought about entirely by the confidence in the integrity which all felt in the authorities of Cuba, and by which the merchants have been deceived into heavy shipments. In the spring and summer of 1844 a severe and long-continued drought caused the loss of the grain and fruit crop in the island, and induced the intendente de real hacienda to issue a decree reducing the duty on breadstuffs and certain other articles one-half. The decree continued in force until the 6th of October last, when, owing to a se- vere hurricane by which a large portion of the island was devastated — ruining the crops, blowing down many houses, and destroying almost all their ground provisions — the intendente immediately, with a philan- thropic spirit, seeing the immense sufferings of the people, issued a de- cree — a copy of which, translated, is annexed — admitting free of duty, for six months from the 6th October, rice, potatoes, and other vegeta- bles, lumber, and all other building materials ; thus fixing a definite period during which the above articles should be admitted free of duty. This led to large shipments from this country to Cuba, nothing doubting that the government of Spain would continue to permit imports of the above articles for the above time — five or six weeks being still wanted to complete the same. Much, however, to the surprise, and greatly to the injury of the shippers, they were informed, by letters da- ted 20th February, that the duties were to be levied instanler in fall, thus allowing no time to avoid heavy losses. The shippers certainly had no right to conclude or suppose that the time fixed by the decree might be shortened, and that at a period when it might be expected heavy shipments would be on the way. But if even, as it is affirmed, the home government at Madrid has refused to confirm the decree taking off the entire duty, the tariff which was established in the sum- mer, of half the duties, might have been expected to take effect. The injury done to the shippers has been very materially aggravated and increased by the manner in which the above order from Madrid was promulgated. The order, it is well known, was received in Ha- vana prior to the 15th February, and was not promulgated until the 20th February. The regular packet, Hayne, sailed on the 16th Feb- ruary, and brought a large number of letters for this country. Most of the heavy shipments which are caught were made between the arri- val of the Hayne and the 5th March, the time when the news of such order reached this place. Had the order been published at Havana on the receipt thereof, it would have been known here by the 20th Feb- ruary, and thus have prevented most of the shipments which were made, and have made a difference of several hundred thousand dollars 172 CASE OF THE BLACK WARRIOR, ETC to the merchants of this country. We are aware of heavy shipments of lumber from Maine, North Carolina, and Georgia, as well as from this State, besides other articles. From this State the loss on rice alone is heavy; the exports from Savannah and Charleston between the aforesaid periods being near 10,000 tierces, on which the duty will be $120,000. Craving reference to the subjoined list of duties on the different arti- cles as levied, and relying on your well-known regard for the interests of the commerce of this country, the subject is most respectfully sub- mitted to you. And your memorialists will ever pray, &c. Signed by order and in behalf of the Charleston Chamber of Com- merce. KER BOYCE, President. Attest : William B. Heriot, Secretary. A list of duties on the different articles as levied. Lumber per 1,000 feet, valued there at $20 per thousand, at 24f per cent , $4 95 Add 2 per cent 40 5 35 Balanza duty 1 per cent 5 Per thousand 5 40 Rice per 100 pounds, valued there at $6 per 100 pounds, at 30f per cent., add 2 per cent 1 97 Balanza duty 2 Per 100 pounds rice 1 99 Potatoes, valued at $2 50 per barrel, at 24f per cent 62 Add 2 per cent 5 67 Beans, valued at $3 per barrel, at 30f per cent 93 Add 2 per cent 6 99 Balanza 1 Per barrel of beans 1 00 CASE OF THE BLACK WARRIOR, ETC 173 Translation of Decree. At an extraordinary meeting of the superior junta for direction of the royal revenues, the administrators general of the maritime and land rents, being present to take into consideration such measures as can be adopted by the (real hacienda) administrators of the royal revenues to alleviate the incalculable evils caused by the dreadful hurricane this city and its environs have just experienced, after taking into consideration, with the grief which should be felt, in view of the immeasurable calamities which are to be relieved, and the horrible distress which threatens all classes if such assistance as is within the control of the above authorities, who are charged with the well-being of all, be not promptly afforded — well assured that the magnanimous heart of her Majesty cannot but condole with us when she comes to the knowledge of such distress, and cannot but approve all that is done for the good of the inhabitants of this the pre (erred part of her monarchy — it was agreed : 1. To concede absolute liberty to the importation of lumber, slate, tiles, shingles, and all kinds of wood for the construction of buildings. 2. The same freedom from duties for six months, to count from to- morrow, to corn, corn-flour, beans, Irish potatoes, and rice, which, by resolution of the directive junta of 3d June last, do not pay but one- half; and that sweet potatoes, yams, and plantains continue to enjoy for the same term of six months that which was dispensed to them at that time, it being understood for this port, with reservation to extend to any other ports where necessity should require it for equally sad causes. 3. That the reduction of duties on the consumption of meat, granted by the aforesaid junta on the ninth of the month anterior, take effect from the fifteenth of the present month on the following terms : the larger classes of animals — such as oxen and cows — shall not pay more than three and a half dollars per head, in place of the four which have been designated, and which shall continue imposed upon calves. Hogs shall pay according to weight — from one to four arrobas, four rials per arroba ; over four to eight arrobas, three rials ; from eight and upwards, two and a half rials. 4. A subscription shall be immediately opened among the chiefs and those employed in the collection of the Queen's funds, (hacienda real,) the amount of which shall be placed for distribution under the orders of his excellency the Captain General. 5. That the loans of 300 dollars from the Mountains of Piety be applied, and the period of the payment of the loans be extended. By all which measures, which shall be submitted for the sovereign approbation of her Majesty, and which they will announce to the public, the junta considered some of the effects of so terrible a calamity might be remedied without impeding any other measures which may be deemed necessary by his excellency the superintendent, in connexion with the other authorities of the island. And his said excellency having determined upon the accomplishment of the foregoing, it is published by his order for general information. JOAQUIN CAMPUZANO, Secretary. Havana, October 7, 1844. 174 case of the black warrior, etc Consulate of the United States, Cardenas, March 3, 1845. Sir : I have the honor to enclose to the department a copy of a me- morial signed by the American merchants of this place, which I send at their request. I have also given notice of the same to the collector of this port. Very respectfully, &c, FRANKLIN GAGE. To the Secretary of State of the United States. Cardenas, February 26, 1845. Sir: The undersigned, citizens of the United States, engaged in commercial pursuits at this port, respectfully represent, that by an offi- cial order promulgated by the government of this island, under date of 20th February instant, certain articles which were declared free of duty on the 7th October last, for the six months then ensuing, are made to pay the same duties, with only a slight modification, as were levied previous to the issuing of that order; that this sudden re-im- position of duties, nearly two months previous to the expiration of the limited time, and without any notice whatsoever, most seriously will affect the interests not only of the undersigned, but more particularly of very, many of their correspondents, in the United States, who, re- lying on the good faith of this government, and the representations of the merchants of this place, that these certain articles would be ad- mitted free of duty until the 7th April next ensuing, the date limited in said order, have made, and are about making, large shipments of such property as will now be subject to duty, anticipating that they would be admitted free under the pledge given by this government and our representations; and that, in consequence, great and serious loss will accrue to all parties who may have availed or may yet avail, of the privilege given, particularly as we are advised of many adventures on foot and in course of shipment to afford the island extraordinary supplies, just previous to the expiration of the time named in said order of 7th October last; that these shipments, arriving here now in quick succession during the next six weeks, will all be subject to duty, under the new order, when it was anticipated they would be free, thus un- doubtedly entailing great and certain loss to all concerned, aside from the breach of faith which the new order makes public. The undersigned, therefore, in behalf of themselves, and more, pai- ticularly of their friends in the United States, who are most likely to suffer under this state of things, consider it their duty to represent the same to you, as the constituted representative of the United States at this place, and to respectfully request you to remonstrate with the collector of this district and port of Cardenas, and, if necessary, to protest against this sudden and uncalled for change in the tariff; and CASE OF THE BLACK WARRIOK, ETC 175 further, to represent the matter to your government at home, for its information and action in the premises. JOHN R. STANHOPE. MATTHEWS & SAFFORD. TAYLOR & THOMPSON. Franklin Gage, Esq., U. S. Consul, Cardenas. Consulate of the U. S. of America, Havana, March 17, 1845. Dear Sir: It appears from the public papers that a good deal of excitement exists in the United States on the subject of the restoration of duties on certain articles, which by the decree of the 7th of October last were to be admitted free of duty for the period of six months, pro- vided that decree met the royal approbation. The Queen of Spain having refused to sanction the measures then adopted by the authorities of the island, an order was issued on the 20th of February last, by the inten- dente, for the immediate restoration of the duties. On the same day I addressed an official communication to him, protesting against this sudden and unexpected measure, without previous notice having been first given ; a copy of which, and a translation of his reply, were forwarded to you by the ship Norma, that sailed from New York on the 5th inst. It is impossible for me to say whether the duties that have been paid since the 20th of February will be refunded or not. The intendente has given directions that a separate account be kept of all articles imported since the 20th of February embraced in said decree, and consequently since his order for the resumption of the duties with the names of the several vessels bringing these articles, and the amount of duties paid thereon ; from which it is inferred that it is his im- pression that the excess of duties paid into the customs will be refunded by the Spanish government. On the faith of the decree of the 7th of October last, that the duties would not be exacted until the expiration of the time therein mentioned, (7th of April, 1845,) several cargoes of rice, lumber, potatoes, &c, have arrived from the United States, the shippers of which must, in case the duties are not refunded, sustain great and perhaps unjust losses. I am frequently called upon by parties interested for my opinion of the probability of these amounts being refunded, and have invariably found the querist dissatisfied with anything short of an affirmative assurance, which I am not able to give. The course pursued by the intendente in ordering separate accounts of the duties collected on the articles that were temporarily free, would seem to indicate this opinion (as he has the wish,) that these amounts would be restored to the importer, and it is probable the interest of the parties thus situated may be advanced by the American minister at Madrid being instructed by his government to urge that restoration with all his official influence. It is true, the removal of the duties for six months was contingent on the royal approval, and the shippers knew this fact; but as the measures of this colony have generally been ap- 176 CASE OF THE BLACK WARRIOR, ETC proved, no apprehension was entertained in this instance, although cases have previously occurred of the refusal of the Spanish govern- ment to sanction the changes made by the intendente and his advisers. You will perceive by my letter to the intendente, and his answer, (already forwarded,) that I did not communicate with the Captain General, the subject being one over which he could exercise no control, and belonging entirely to the department of the intendente, it would have been useless to address him. It is understood that the course of the intendente, who is every way disposed to a liberal tariff, has made him unacceptable to the Spanish ; his removal is deemed certain. I have the honor to be, &c, &c, ROBERT B. CAMPBELL. Hon. John C. Calhoun, Secretary of State, Washington City. Messrs. Henry A. Coit, Spofford, Tileston Sf Co., and Howland Sf Aspin- wall, to Mr. Buchanan. Sir : For ourselves, and in behalf of our fellow-citizens engaged in the trade with the island of Cuba, we take the liberty of soliciting your attention to a recent act of the Spanish government, affecting our in- terests. It is, doubtless, known to you, that for the purpose of alleviating the distress occasioned by the hurricane and drought which have visited that island, a decree was promulgated by the authorities at Havana, several months since, liberating from the payment of duties certain articles of lumber, corn, corn meal, rice, beans, &c, upon their intro- duction into that and other ports in the island, for the term of six months, now about expiring. In virtue of this decree, importations have been made to a very con- siderable extent into the island from this country, up to the latest dates which have reached us, all of which, subsequent to the date of a new decree, dated Havana, February 20th ult., reimposing duties on the articles referred to, in consequence (as therein stated) of orders received from Spain to that effect, have been subjected to the payment of duties, and have resulted in heavy losses. We would, therefore, respectfully submit to your decision, whether, acting in the good faith of the original decree, and without a previous intimation of its reversal in season to prevent shipments which were in progress, or contracted for, from being made from this country, full re- dress, extending to the amount of duties thus levied, as well as to any damage which their interests may have sustained, is not due to us and our fellow-citizens who may have suffered in the manner described. Very respectfully, &c, &c, &c, HENRY A. COIT. SPOFFORD, TILESTON & CO. HOWLAND & ASPINWALL. CASE OF THE BLACK WARRIOR, ETC 177 Mr. Irving to Mr. Buchanan. [Extract.] |No. 67.] Legation of the United States, Madrid, June 25, 1845. ***** Dispatch No. 43 (accompanied by documents) relates to injuries, resulting to citizens of the United States from the annulling, by the Spanish government, of the decree of the supreme authorities of Cuba, authorising the importation of certain articles into the island for six months free of duty. I passed a note to the Spanish government some days since in conformity with your instructions, but as yet have received no reply. The Belgian charge d'affaires is making an urgent representa- tion on the same subject, and it is vigorously advocated in the Cronica, a paper recently set up here, and devoted to colonial interests, especially those connected with the island of Cuba, and to which paper I occa- sionally furnish facts and intelligence. It is extremely difficult, however, to get any questions of that kind attended to by this government at present. The disjointed state of the cabinet, part at Madrid and part at Barcelona, interrupts the regular course of business; while the complicated negotiations with the court of Rome; the perplexed question of the marriage of the Queen; the agitations and alarms caused by the recent abdication of Don Carlos, and the manifesto of his son ; the reports of plots, conspiracies, internal and external, and the disastrous fluctuations of the funds, in which some persons high in place are supposed to be implicated — all these distract the attention and disturb the minds of ministers, and ren- der them heedless of all affairs but such as are immediately important to their political existence. I am, sir, very respectfully, your obedient servant, WASHINGTON IRVING. Mr. Irving to Mr. Buchanan. [Extract.] [No. 69.] Legation of the United States, Madrid, July 10, 1845. Sir: ******* 1 have received no reply as yet to my note to the Minister of State, claiming restitution of duties wrongfully imposed on American merchandise shipped to Cuba under the " duty free" decree. Indeed, the absence of part of the Cabinet with the Court at Barcelona inter- rupts the whole course of business. 1 have forborne to follow the Court to Barcelona this year, having received no instructions from government on the subject, and there being a probability that the royal sojourn in that city would be very short. Should the absence of the Court from the capital be prolonged, I may find it expedient to pay a brief visit to prevent being thought wanting in respect. ********* Hon. James Buchanan, Secretary of Stale, Washington. 12 178 CASE OF THE BLACK WARRIOR, ETC Mr. Barringer to Mr. Marcy. [Extract.] [No. 152.] San Ildefonso, August 11, 1853. Sir: On the 7th of October, 1844, the Captain General of Cuba issued a decree, suspending for a given period the usual import duties on provisions, with a view to induce a rapid supply of the scarcity under which the inhabitants were then suffering. Various vessels of the United States, England, France, Sweden, and others, on the faith of this decree, went with large cargoes of provisions ; and although they reached Cuba within the period fixed in the same decree, and complied in all respects with its requisites, they were nevertheless com- pelled to pay the accustomed duties. Reclamations have been made against Spain for the injury thus in- flicted, and the claim of England especially is now being prosecuted with urgency. She has a demand for about $100,000. The loss sus- tained by vessels of the United States by this transaction is stated to be at least double that sum, or about $200,000. The subject was brought to the attention of the Spanish government shortly afterwards, under instructions from the department, but nothing was definitely done, and the matter has not been since considered. It was not until recently that I have obtained knowledge of the fact that other govern- ments were prosecuting these claims, and I have not deemed it advi- sable, after so long a length of time, to renew the claims of our own citizens without fresh instructions from our government. Under all the circumstances, the subject is now brought again to the attention of the department, either for new instructions to my successor, or the adop- tion of such other course as .may be deemed best by our government, respectfully adding my opinion that something ought to be done in reference to this claim. ####### Hon. W. L. Marcy, Secretary of State. CASE OF MICHAEL D. HARANG. Mr. Gallaher to Mr. Forsyth. [Extract.] Consulate of the U. S. of America, Ponce, Porto Rico. March 2, 1839. Sir : Since I had the honor to address you on the 23d November last, a demand of 15 per cent, on the property of Luis Alexander Harang, deceased, has been made and exacted by the intendant of Porto Rico. On application of Michael D. Harang, one of the heirs, the other three of whom are residents of Parish Jefferson, State of Louisiana, I ad- CASE OF THE BLACK WARRIOR, ETC 179 dressed a letter, of which the enclosed is a copy, to the intendente, and hoping to have heard from him, I have delayed writing you till now, but as yet no answer has been given, although our consul in the city has waited on him several times to know his determination. In the mean time the exaction of near $11,000 has taken place, and the sole resource of the heirs of Luis Alexander Harang, who are citizens of the United States, remains in the view which will be taken by the government of the United States on this proceeding. I remain, with great respect, your obedient servant, J. C. GALLAHER. Hon. John Forsyth, Secretary of State, Washington. P. S. I open my letter to enclose copy of protest made before me this day, by Michael Drausin Harang. Consulate of the United States of America, Ponce, Porto Rico, February 4, 1839. Sir : I have the honor to represent that Michael Drausin Harang, a native of New Orleans, in the United States of America, and for some time past a resident of the district of Ponce, has applied to me, claim- ing to be a citizen of the United States, and stating that the government of Porto Rico, in virtue of the real cedula of August 10, 1815, have demanded of him 15 per cent, for duty of extraction on the property left by his deceased father, Luis Alexander Harang, said Michael Drausin Harang believes (and I concur in opinion,) that said real cedula cannot apply to citizens of the United States without violating the lltn article of the treaty, made at San Lorenzo el Real, between the United States and Spain, on the 27th of October, 1795, which said treaty was confirmed in all and each one of its articles, excepting the 2d, 3d, 4th, 21st, and 2d clause of the 22d article, by another treaty made at Wash- ington on the 22d February, 1819. Under these circumstances, I beg leave respectfully to ask, that if any orders may have been given for the collection of said 15 per cent., that they may be suspended, until the understanding of the govern- ments of the United States and of Spain may be had on this subject — said Michael Drausin Harang giving sufficient security in the mean time for the amount claimed. I have the honor to be, &c, J. C. GALLAHER, United States Consul. Al Senor Don Antonio Maria del Valle, Intendente de la Isla de Puerto Rico. Know all men by these presents, that, on this second day of March, in the year one thousand eight hundred and thirty-nine, before me, James C. Gallaher, consul of the United States of America, at this port of Ponce, in the island of Porto Rico, personally came and appeared Michael Drausin Harang, a native of parish Jefferson, State 180 CASE OF THE BLACK WARRIOR, ETC. of Louisiana, in. the United States of America, who declared, that his father, Lewis Alexander Harang, died in the city of New York, in the United States of America, on the fifteenth day of September, in the year one thousand eight hundred and thirty-five, having left by will, to his four children, Lewis, Matilda, John Pascal, and the deponent, his property in the island of Porto Rico, which consisted of a sugar estate and some other property — of which said property deponent, by order of, and in pursuance of a power of attorney from the other heirs, made sale for the purpose of remitting the proceeds to the other heirs, re- siding in parish Jefferson, State of Louisiana, and all natives of said State. Deponent further states, that by order of the intendencia he has been forced to pay the sum of ten thousand nine hundred and seventy-eight dollars one real and sixteen maravedices, for the duty of extraction, contrary to the eleventh article of the treaty made between the United States and Spain, on the twenty-seventh of October, one thousand seven hundred and ninety-five, and confirmed by another treaty, made on the twenty-second day of February, one thousand eight hundred and nineteen. And, therefore, the said Michael Drausin Harang doth solemnly protest against the order of the intendencia, as also against all and every other person or persons whom it shall or may concern, for all losses, damages, and detriments that have occurred, or may occur, to the estate of his father, Lewis Alexander Harang, deceased, in conse- quence of these proceedings, as well as for deponent's detention in this country, and doth appeal to the government of the United States of America, of which he is a citizen, for protection. Of all which act I have hereunto affixed my hand, in Ponce, Porto Rico, this second day of March, in the year one thousand eight hun- dred and thirtv-nlne, as aforesaid. M. D. HARANG. Before me, J. C. GALLAHER, United States Consul Ponce, Porto Rico, March 2, 1839. Mr. Forsyth to the Chevalier aV Argaiz. Department of State, Washington, February 28, 1840. Sir: A representation has been addressed to this department by Mr. M. D. Harang, a citizen of the United States, setting forth that the authorities of the island of Poito Rico had compelled him to pay, into their hands, a sum of money demanded of him as duty of extraction (derecho de estraccion) upon the proceeds of estates descended to him on the death of his father, Lewis Alexander Harang, also a citizen of the United States, who, some time before his death, had resided in said island. If the facts stated by Mr. Harang are such as he represents them, the demand referred to is so manifest an infraction of the eleventh article of the treaty of 1795, one of the articles confirmed by the treaty of 1819, that it must be supposed to have been occasioned CASE OF THE BLACK WARRIOR, ETC 181 by inadvertence or misconception on the part of the colonial authori- ties. No doubt is entertained that a proper application to her Majesty's government, at Madrid, would be followed by immediate orders for the repayment of the money thus wrongfully demanded of Mr. Harang ; but as the delay necessarily attending such a step would greatly add to the injury already suffered by him, in consequence of the detention of his property, I request that you will use your influence with the au- thorities of the island to prevail upon them to re-examine the question with as little delay as possible, in order that justice, which is so clearly due under the treaty to which I have referred, may be done to the claimant. I avail myself of the opportunity to convey to you renewed assur- ances of my distinguished consideration. JOHN FORSYTH The Chevalier d'Argaiz, &c, &c, Spain. The Chevelier d'Argaiz to Mr. Forsyth. [Translation.] Washington, March 2, 1840. My Dear Sir : I have received the letter which you were pleased to address me on the 28th February last, to inform me of the applica- tion which Mr. M. D. Harang, a citizen of these States, had ad- dressed to the Department of State, setting forth that the authorities of the island of Porto Rico had exacted from him a certain amount of money for exportation duty upon the produce of property he inherited on the death of his father, who was for some time established in that island ; and, inasmuch as this measure could not have been adopted, except through carelessness or misunderstanding on the part of the authorities of that island, of the eleventh article of the treaty of 1795, and that to apply to her Majesty's government at Madrid would involve new delays and injury to the party interested, you ask me to use my influence with the authorities of that island, recommending them to re-examine the question with all possible speed, in order that justice, so clearly due, according to the treaty you have quoted, may be rendered to the peti- tioner. In reply, I must say to you, that herewith enclosed you will find a communication for her Majesty's intendant in the island of Puerto Rico, to whom, at the same time that I transmit a copy of your letter, I enclose a copy of the 11th article of the treaty of 1795, and recommend to him, as much as it is in my power to do, a favorable and prompt settlement of this business ; and I have no doubt that, if it is in his power, he will hasten to give a new proof of the respect which her Majesty's government and its authorities have and observe for the stip- ulations of treaties which unite them with those powers that are her Majesty's allies and friends. 182 CASE OF THE BLACK WARRIOR, ETC I avail myself of this occasion to renew to you the assurance of my D'ARGAIZ. distinguished consideration. Mr. Forsyth to Mr. Gallaher. Department of State, Washington, March 4, 1840. Sir : A letter has been addressed to this department by M. C. Ha- rang, asking its interposition in obtaining from the authorities of Porto Rico restitution of a sum of money which he alleges to have been levied as a duty of extraction upon the proceeds of estates descended to him from his father. So far as the circumstances of this transaction appear from Mr. Ha- rang's letter and your several communications on the subject, the demand of the duty referred to cannot be viewed in any other light than a direct infraction of existing treaty stipulations between the 0nited States and Spain, calling, very properly, for the representation inter- posed by you. In support of the renewal of it, which you are hereby instructed to make, I have requested the minister of Spain near this government to use hi§ influence with the proper authority in Porto Rico, recommend- ing a just observance of the treaty ; and the letter which, to that effect, he addresses to the intendant of the island is herein enclosed, to be for- warded by you. Should the* repayment of the money be longer resisted, you will state the fact to this department, and transmit to it all the information neces- sary to a full understanding of the merits of the question, with a view to a direct application for redress to the metropolitan government, if circumstances should be found to authorize it. A letter from Mr. Harang to yourself is, likewise at his request, here- with transmitted to you. I am, &c, JOHN FORSYTH. J. C. Gallaher, Esq., United States Consul, Ponce. Mr. Gallaher to Mr. Forsyth. [Extract.] FNo. 18.] Consulate of the U. S., Ponce, Porto Rico, April 11, 1840. Sir : I have the honor to acknowledge the receipt of your communi- cation of the 4th ultimo, enclosing a letter for the intendente, a letter from Harang, with pow T er of attorney, and instructions with regard to my further proceedings in this business. CASE OF THE BLACK WARRIOR, ETC 183 From the accidental mislaying of a paper, I was inadvertently led into an error in my communication to the department, No. 16, dated January 18, with regard to my never having received a communica- tion from the intendente. On a careful re-examination of my papers, after receipt of your instructions of 4th ultimo, I discovered a commu- nication which, according to my endorsement, had been received by me on the 19th March, 1839, (seventeen days after Harang's protest had been made,) but had been unaccountably mislaid and forgotten, in the press of other business. It however does not, in the least, affect the representations I have made to the department, as will be seen by the copy which I herewith enclose, attached to which I have put very nearly a literal translation in English. The true question, although at- tempted to be mystified by these gentlemen, is simply whether Mr. Harang is an American or not, and as an American is he entitled to the protection of the treaty. I have the honor to enclose you copies of the letters I have addressed to the Captain General and to the inten- dente, and will forward you copies of their replies the moment I receive them. Consulate of the U. S., Ponce, Porto Rico, April 6, 1840. Sir: I have the honor to inform your excellency that I have feceived dispatches from the government of the United States approving of the representations made by me, as contained in my letter of February 4, 1839, to the Senor Intendente of the island of Porto Ripo, of which I have the honor to enclose herewith a copy, as also of the protest made before me by Michel Drausin Harang, on the 2d of March, 1839, of which, on the same date, I forwarded a copy to the Senor Intendente. I am instructed by the government which I have the honor to repre- sent to state, that " the demand of the duty referred to cannot be viewed in any other light than a f direct infraction of existiug treaty stipulations between the United States and Spain ;" and I am further instructed respectfully to ask of your excellency to give the necessary orders for the repayment of the money exacted from said Harang by the author- ities of Porto Rico, amounting to the sum of ten thousand nine hundred and seventy-eight dollars one real and sixteen maravedices ; for the pur- pose of receiving which the power of attorney of said Michel Drausin Harang, sealed and certified by the chief judge of the circuit court of the United States, by the Secretary of State of the United States, and by the secretary of the Spanish legation at Washington, has been for- warded to me, under cover of the dispatches before mentioned, and can be examined by whomsoever your excellency thinks proper to name for that purpose. I have the honor, &c, J. C. GALLAHER, United States Consul. His Excel' cy the Governor and Captain General of the Island of Porto Rico, and Swperintendente of the same. 184 CASE OF THE BLACK WARRIOR, ETC. Consulate of the U. S., Ponce, Porto Rico, April 6, 184a Sir : I have the honor to inform you that, under cover of despatches from the government of the United States, I have received the enclosed letter, with directions to, and which I have now the honor to forward. I have the honor to remain, with great respect, your ob*t servant, J. C. GALLAHER, United Stales Consul. To the Intendentk of the Island of Porto Rico. I have received your communication of what Michel Drausin Harang has stated with regard to the 15 per cent, which is exacted as duties on the extraction of the property left by his deceased father, Luis Alexander Harang, and have passed it to the gentlemen, the fiscal of the royal custom-house and the assessor of this intendency, and, with dates of the 15th and 23d of the present month, they have answered me as follows : " Sr. Intendente : The fiscal of the royal custom-house ought to state that, without doubt, Harang has purposed to confound and dis- naturalize this business j that, if this minister does not recollect badly, Harang has made reclamations as a subject of the French government, after having placed himself before a tribunal ; and, finally, that all these conducts are extemporaneous and captious, your excellency not being able to prescind manifesting it in this manner to the consul, indicating to him that Harang has suits pending before the tribunals, and in them is where he o»ght to represent without treating of surprising the con- suls and authorities. Thus verified, this expediente ought to pass to the tribunals." Sr. Intendente : I adhere to the opinion of the Sr. Fiscal, Dn. Miguel Harang being at liberty to use all the recourses which he may consider will assist him before the competent tribunals, being assured that that of the royal custom-house will observe religiously the existing laws, as well with respect and veneration for treaties which exist between Spain and the United States, without forgetting that Harang has made a representation to your excellency, through the French consul, not many days since. Your excellency may answer in this manner, or as you may judge more proper, being pleased to pass this answer to the tribunal, in order to give it the corresponding course. And in con- formity with the foregoing opinions, I remit them to you for your infor- mation and as an answer. God preserve you many years. Porto Rico, 27th February, 1839. ANTO. MA. DEL VALLE. Sr. Consul of the United States of America, Ponce. CASE OF THE BLACK WARRIOR, ETC 185 [Translation.] Office of the Captain General, and of the Superior Political Government, Section 1. Porto Rico, April 18, 1840. By the official letter you have addressed me on the 6th instant, I learn what you state to me concerning the claim of Mr. Miguel Drausin Harang, relative to the reimbursement to him of the amount of ten thousand nine hundred and Eighteen dollars one real and sixteen maravedis, which was exacted from him on account of 15 per cent, duty on the exportation of property which he inherited from his father, and which he conveyed to the United States ; and, in replying to you on the subject, I must say, that the matter in question, of which until now I had no notice whatsoever, coming under the private cognizance of the intendente, to whom he has already submitted his claims by means of the document, a copy of which you enclosed to me ; and the aforesaid intendente being in correspondence upon the same subject with the charge d'affaires of Spain, near the government of the United States, he can settle the matter with the financial authority alluded to, in all that concerns the exaction of the duties which have occasioned his com- munication aforesaid. God preserve you a thousand years. MIGUEL LOPEZ DE BANOS. Mr. J. C. Gallaher, United States Consul at Ponce. The Chevalier oVArgaiz to Mr. Forsyth. [Translation.] Washington, December 24, 1840. Sir : You wall remember that, in consequence of the note which you were pleased to address to me under date of the 28th of February last, I had the honor to enclose to you, with my reply of the 2d of March following, a dispatch to the most excellent intendant of the island of Porto Rico, in which I communicated to him your above-mentioned note, together with a copy of the eleventh article of the treaty of 1795. The intendant answered me, under date of the 30th of August, as follows : " After a long delay I had the high honor to receive your excellen- cy's official communication of the 2d of March last, containing, inserted, another from the Secretary of State at Washington, making various observations relative to the claim addressed to him by the citizen Mr. Miguel Drausin Harang, for the recovery of a certain sum of money which the royal treasury of this island extracted from the portion of the estate of his deceased father, Don Alejandro Harang, inherited by him, on carrying it to a foreign country,, of which affair your excellency requested me to make an immediate examination, agreeable to the desires of the Secretary of State, based upon the literal expression of the eleventh article of the treaty of October 27, 1795, between the court of Madrid and the States of the Union. 186 CASE OF THE BLACK WARRIOR, ETC " The absence of the legal counsellor, (ministro asesor) of this in- tendency, and the circumstance that the documents relative to the claim before the courts of justice are not to be found, prevent me from answering your excellency by satisfactory observations on a matter so complicated, and which really no longer remains within the limits of my authority, since the person, who is now regarded as a citizen of the ynited States, has subjected it to the course of law. "I will state to you, with my characteristic frankness, agreeable to the suggestions made by the legal counsellor of this intendency, under my charge, that Mr. Miguel Drausin Harang has advanced several different pretensions with the view of freeing himself from the payment established by the royal cedula of colonization of August, 1815, upon all personal property (capital) acquired by persons naturalized in this island, after a certain number of years of residence, when it is to be taken to a foreign country, without an}?- difference in regard to Span- iards or strangers. Harang pretended that his father should be consid- ered as a Spaniard, from having been born at New Orleans when that place belonged to Spain ; he then pretended that he should be considered as a Frenchman, because New Orleans was transferred to that nation by treaties ; and, finally, he appears in the garb of a citizen of the United States of America. These observations will serve to convince your excellency that Harang' s whole object has been to elude compliance with the laws governing this colony. No one will be conscientiously persuaded that his father could have been a Spaniard of New Orleans, a Frenchman of New Orleans, a colonist of Porto Rico, a naturalized Spaniard, and a citizen of the United States at one and the same time, with rights entirely contradictory. " Don Alejandro Harang accepted the cedula of August 10, 1815, and all its consequences. The 14th article of that cedula, with which the Secretary of State of the Union is probably unacquainted, is in these exact words, which I have the honor of copying : " Art. 14. During the first five years of residence in this island, Spanish mid foreign colonists shall have liberty to return to their countries, or former places of resi- dence, and in that case they shall be permitted to take away from the island the money and effects which they brought thither; but of what they acquired, or added, they shall contribute ten per cent., it being well understood that the lands which may have been allotted to such colonists as leave the island voluntarily, shall revert to my royal patri- mony, to be appropriated for the benefit of others, or as I may consider most advantageous." Your excellency will here observe, that in this article no distinction is made between Spaniards and foreigners, or father that it comprehends both expressly, and consequently Harang can have no ground for complaint, and cannot cite in his behalf the eleventh article of the treaty of 1795, since that article requires a reci- procity which Spain never fails to observe, though it never can take place in the present question, as I shall in a few words demonstrate. The 15th article on which the court of revenue [tribunal de ren- tas] relies in this case of Harang, says as follows: "I grant to the old and new colonists (Spaniards and foreigners, according to the 14th article) who may die in the island without regular heirs, the privilege of leaving their property to their relations or friends, wherever they CASE OF THE BLACK WARRIOR, ETC. 187 may be ; and if such heirs wish to establish themselves in the island they shall enjoy the privileges conceded to the person from whom they inherit ; but if they prefer carrying away the property inherited they may do so on paying upon the whole fifteen per cent., as duty of ex- traction, in case the colonist from whom they inherit had been more than five years established, and only ten per cent, if he had been estab- lished only for a shorter period, agreeably to the terms of the preceding (14th) article. With regard to those who die inteslate, their fathers, brothers, or relations, even though established in a foreign country, shall inherit fully, provided they establish themselves in the island, being Catholics ; and, in case they cannot or do not wish to reside there, I allow them to dispose of their inheritance by sale or cession, according to the regulations prefixed in the two preceding articles." Your excellency will easily understand that, by the articles which I have copied, Don Alejandro Harang, a colonist of the island of Porto Rico, whether considered as a North American, as is now solicited, or as a Frenchman, in which character he appeared at first, or as a Span- iard born in New Orleans, as pretended at another time, or even if born in Madrid, could, before the end of five years of residence in the island, himself or his heirs, take away his property to a foreign country, as he pleased, on paying ten per cent, as duty of extraction ; and as Don Alejandro Harang did hold a letter of naturalization, and was converted into a Spaniard, which rights, according to the cedula, he could not have acquired until after having resided five years in the island, (where he indeed resided more than ten or fifteen years,) he was at liberty to dispose of his property by testament in favor of his children, who would inherit it ab intestato, or of his relations or friends, with the condition of paying fifteen per cent, upon the whole, as duty of extraction, if they wished to carry it away. Such is the case of Mr. Miguel Drausin Harang, in which he is not sustained by justice. His father, in soliciting the letter of naturalization rendering him a Spaniard, complied with the laws in force in the colony ; and consequently, as the royal cedula of colonization bears date the 10th of August, 1815, twenty years pos- terior to the treaty alluded to, it cannot be cited in favor of Harang without straining its sense ; and 1 do not understand how the Secre- tary of State at Washington can endeavor to support this claim, seeing that the same duty of extraction is levied upon subjects of Spain and foreigners. Harang, indeed, cannot with any justice complain of the payment required from him in virtue of the above-mentioned cedula. The muni- ficent character of that document may, perhaps, be unknown to the honorable Secretary of State at Washington. It has always merited the highest praise from subjects and foreigners, on account of the innu- merable privileges and immunities accorded by it to the colonists. They thereby became freed for fifteen years from all duties on impor- tation of articles of commerce from a Spanish country, and even from duties on exportation of the produce of the island. They were ex- empted from tithes, as also from alcabala, alcabillila, and every species of contribution or tax on consumption, transportation, or introduction. These colonists, whether Spanish or foreign, received grants of land according to their condition, sex, and family. At the end of five years 188 CASE OP THE BLACK WARRIOR, ETC. of residence they entered, if they wished, into the enjoyment of the rights of Spanish citizens, by receiving letters of naturalization for the colonists and their children, without the slightest distinction. For so many favors, exemptions, and privileges some recompense, certainly trifling when compared with these great and abundant benefits, was demanded ; and this shows the justice of the fourteenth and fifteenth articles of the above-mentioned cedula. The colonists' accepted what was useful and profitable to themselves ;. and they also, at the same time, accepted all the consequences. The honorable Secretary of For- eign Affairs of the United States cannot certainly desire that the laws of other countries should be treated as jests and trifles. He certainly will not expect that the children of Don Alejandro Harang should be in a better condition than Spaniards themselves. He will not maintain that Alexander Harang, a Spaniard, who for so many years before his decease enjoyed the rights of a Spaniard, should at the same time have beeen, and have enjoyed the rights of, a citizen of the United States.- This would be a play upon words, giving no rights and supporting no acts. And even though he should never have ceased to be a citizen of the United States, yet this plea would not avail in his favor ; and still less would the treaty of 1795, and its eleventh article, since it only requires reciprocity. The cedula establishes that for Spaniards and foreigners. Although I have no necessity to enter into another discussion, and with this treaty, which is invoked by the distinguished Minister of For- eign Affairs of North America, I will prove conclusively that not one of the articles meets the question. I regret that your excellency has not examined the 11th article, which is as clear as light. I shall abstain from inquiring into other details, which will not have escaped the pene- tration of your excellency, such as the origin and motives of this treaty of peace, amity, limits, and navigation, between the two powers. It will be sufficient for my purpose to analyze the 11th article, which is considered as the support of the extravagant pretension of Mr. Miguel Drausin Harang, the son of Don Alejandro Harang, a Spaniard of the island of Porto Rico, under the laws and in the faith and religion of which he died. That oft-mentioned article says : " The citizens and subjects of each party shall have the power to dispose of their personal goods, within the jurisdiction of the other, by testament, donation, or otherwise ; and their representatives, being subjects or citizens of the other party,- shall succeed to their said personal goods, whether by tes- tament or ah intestato, and they may take possession thereof, either by themselves or others acting for them, and dispose of the same at their will, paying such dues only as the inhabitants of the country wherein the said goods are shall be subject to pay in like cases." Such is the first part of the said article — the only part which can be made to bear, even by a forced interpretation, on the question. Don Alejandro Ha- rang was a naturalized Spaniard, and consequently he could not, at the same time, have been a citizen of the United States, and have appealed to a treaty which applies only to citizens of the Union who might be in Seville or Cadiz as foreigners. If Don Alejandro" died a Spaniard he could not have been consid- ered as a citizen of the United States— that is evident ; nor could his CASE OP THE BLACK WARRIOR, ETC. 189 heirs lay claim to rights other than those of their father. Moreover, the same article says, in the last sentence of the part already quoted, that if their heirs be subjects or citizens of the other contracting party, they shall succeed to their goods by testament, or ah intestato. They may take possession by themselves, or by others, and dispose of them at their will, without paying higher duties than the inhabitants of the country where the property inherited is situated would pay in similar cases. Now, Mr. Miguel Drausin Harang, son of Don Alexander Harang, is the son of a Spaniard. Spaniards pay, as duty of extrac- tion, alter five years of residence, fifteen per cent, on the amount of the property inherited which is taken away, according to the 15th article of the above-mentioned cedula. Even though that cedula had not been posterior to the treaty of 1795, your excellency will see, that if it be carried into effect towards Spaniards, citizens of the United States can- not require any thing but reciprocity ; and thusMr. Miguel Drausin Ha- rang complains in vain, evidently most unjustly. On my part, I would, if it were incumbent on me, request your ex- cellency to interpose your good offices with the supreme government of the Union, for the purpose of having that treaty executed according to its terms, as laid down in itself, without interruption of its text, leaving to each authority the full and complete exercise of its own attributes. This affair belongs to the courts of justice, according to the laws of Spain, and according to the very treaty cited, as clearly proved by the second part of the eleventh article, the terms of which are so direct and evident that they admit no doubt. That this may appear fully, I will copy that second part at length : " And in case of the absence of the heirs, such care will be taken of the goods as would be taken of the goods of a native in like case, until the lawful owner may take measures for receiving them. And if questions shall arise among several claimants to the inheritance, they shall be determined finally agreeably to the laws, and by the judges of the land wherein the said goods are. And when on the death of any person holding real estate within the territories of one of the contracting parties, such real estate would, by the laws of the land, descend to a citizen or subject of the other party, who should, as a foreigner, be incapable of holding it, he shall be allowed a reasonable space of time to sell the same, and to collect the proceeds without molestation, and exempt from all right of detraction on the part of the government of the respective States." " If questions shall arise," says the article, "between different claimants to the property left, they shall be decided finally according to the laws, and by the judges of the country wherein the property lies. One of the claimants to the inheritance of Don Alejandro Harang is the trea- sury, which requires, according to law, the sum of fifteen per cent, upon all the exisiting property of Don Alejandro Harang; exceptions to this claim must be urged before the Spanish courts, and they are to be decided according to the Spanish laws, which will be justly admin- istered. This has been actually done ; and the affair in question is now by appeal before the supreme court of the island, which will decide on it with due attention to all the treaties and orders now in force with regard to the matter." 190 CASE OF THE BLACK WARRIOR, ETC. All which I transmit to you, Mr. Secretary of State, for your infor- mation and consideration, and I remain Your most obedient servant, PEDRO ALCANTARA D'ARGAIZ. Mr. Vail to Mr. Webster. [Extract.] Legation of the United States, Madrid, May 2, 1841. g IR .###*###* Our consul at St. John's, Porto Rico, and Mr. Michael Drausin Harang, a citizen of the United States, have applied for my intervention to ob- tain from the government here an order for the return of a sum of moriey levied by the colonial authorities as duties of detraction upon the proceeds of the estate of Mr. Harang's father, who died possessed of property in that island. While I was in the Department of State, the case was brought by Mr. Harang, in person, to the notice of the Sec- retary, who deemed it entitled to his official intervention. The know- ledge I then acquired of the circumstances of the case, has induced me to acquiesce in the request of the claimant, which I have done by ad- dressing to the Minister of Foreign Affairs the note of which a copy is enclosed. ######## I am, sir, respectfully, 3 r our obedient servant, A. VAIL. Hon. Daniel Webster. Secretary of State of the United States, Washington. Mr. Vail to Mr. Be Ferrer. Legation of the United States, Madrid, April 27, 1841. The undersigned, charge d'affaires of the United States of America, has the honor to transmit to his excellency Don Joaquin Maria de Ferrer, First Minister of State and of Foreign Affairs of her Catholic Majesty, a paper recently received from the American consul at St. John's, in the island of Puerto Rico. From this paper, and from letters* accompanying it, it appeal's that the authorities of the island recognise the legality of a claim presented to them by Michael Drausin Harang, a citizen of the United States, for the return of a sum of money exacted of him, in contravention of existing treaties between the United States and Spain, as duties of detraction upon the proceeds of the estate of bis father, likewise a citizen of the United States, who died possessed of property in said island. It appears, further, that their refusal to refund the money rests on the ground that there do not exist in the archives of CASE OF THE BLACK WARRIOR, ETC 191 the island copies of one of the treaties referred to, and of a certain royal order, mentioned in the enclosed paper ; and in consequence of this — although the legality of the claim is admitted on all hands — it seems that the case has, with all the documents, been referred by the colonial authorities to her Majesty's government at home. The under- signed, impelled by a sense of the wrong inflicted upon the claimant by the long detention of his property, feels it his duty to recommend the subject to the early attention of Mr. de Ferrer, and to request that directions may, as speedily as possible, be given to the authorities of Puerto Rico no more to delay the repayment of the money so unjustly demanded in the first instance, and the restitution of which has now so long and so injuriously been withheld. The undersigned avails himself of the opportunity to offer to his ex- cellency the renewed assurance of his most distinguished consideration. A. VAIL. Mr. Vail to Mr. Webster. [Extract.] [No. 31.] Legation of the United States, Madrid, July 24, 1841. Sir: * * * * * * * I have received an answer to my interposition in behalf of the claim of Michael Drausin Haran^. for the return of monevs demanded of him by the colonial government of Porto Rico, as duties of extraction upon the proceeds of property descended to him from his father, late a resi- dent of that island. I communicate a copy of Mr. Gonzalez's note, but not of the enclosure, though itself constituting the answer, because that document — a letter from the intendant of the island to the Spanish minister at Washington — will doubtless, by the latter, have been laid before you. A motive alleged for not granting to Harang's property the exemption from duty claimed by him under the treaty is, that his father had become a Spanish subject by naturalization ; and that, therefore, his estate was liable to the same charges as those of other Spanish sub- jects descending in the ordinary course of law. As the American citizenship of Harang, the father, was the only ground on which I rested my representation, and as I have no means of disproving or dis- puting the fact of his naturalization, I let the matter rest tor the present, having informed the claimant of the state of the case, and of my inten- tion to wait for further orders from your department. I am, sir, respectfully, your obedient servant, Hon. Daniel Webster, Secretary of State, Washington. A. VAIL. 192 CASE OP THE BLACK WARRIOR, ETC. Mr. Webster to Mr. Vail. [Extract.] [No. 14.] Department of State, Washington, September 1, 1841. Enclosed you will find copy of a correspondence and of certain papers relating to the claim of Michael Drausin Harang and others, of Ponce, Porto Rico, upon the intendencia of that island, for " detrac- tion " of a sum of money due upon the sale of his late father's estate, the payment of which was enforced against him and his co-heirs by the intendente, contrary, as the claimants allege, to existing treaties between the respective countries. Under the impression that the colo- nial decision was rash, and with a view to lose no time in obtaining repa- ration for an injury supposed to have been occasioned by inadvertence, a letter was addressed to the Spanish minister here, stating the circum- stances, and asking his influence with the authorities of the island to prevail on them to re-examine the case, and to repair the alleged dam- age. After some delay, the Chevalier d'Argaiz replied, and enclosed the answer of the intendente on the subject of this claim. This answer has proved unsatisfactory to the parties, and you are now instructed, on the receipt of this dispatch, to bring the subject to the attention of her Majesty's government, which would have been done in the first instance, at the desire of the claimants, if the department had not be- lieved that the course that was adopted would have resulted in speedier justice. The facts are sufficiently explained in the accompanying papers to enable you to present the matter in a strong light at Madrid ; and believing the case to have been one of manifest injustice, it is not doubted that the home governmant will hasten, not only to remedy the evil originally done by the authorities of the island, but to make repa- ration for so long a delay in rendering justice to the parties. I enclose, for your further 'information, a statement of the case drawn up by Mr. M. D. Harang, who is now in Washington. Mr. Vail to Mr. Webster. [No. 48.] Legation of the United States, Madrid, November 2, 1841. Sir: I have been led, by the directions in your dispatch No. 14, into a closer examination, and, by the documents accompanying it, I am enabled to arrive at a clearer understanding than before of the claim of Michael Drausin Harang upon the colonial treasury of Puerto Rico. The circumstances set forth by the papers, and the law and arguments adduced against the claim by the colonial authorities, have raised strong doubts in my mind of the practicability, with the means within my reach, of a successful interposition in behalf of the claim upon the principles hitherto invoked in support of it. The circum- stances upon which the claim is founded appear to be these : CASE OF THE BLACK WARRIOR, ETC 393 On the 10th of August, 181 5, a royal cedula, or decree of coloniza- tion, was issued, to encourage immigration and promote the settlement of the colony. It offered to all persons, Spaniards or foreigners, gra- tuitous grants of land, and certain advantages to foster their cultiva- tion; but it likewise imposed upon all settlers, Spanish and foreign equally, certain obligations, inherent to their character of colonists. Thus a continued residence of five years conferred upon the former the quality of Spanish subjects, and of course imposed upon them the corresponding obligations. It granted to all, without distinction of origin, who might die without heirs, the right of bequeathing their property to relatives and friends, who, if they chose to reside in the colony, were to enjoy the same privileges as the original grantees ; otherwise the land itself was to revert to the crown, and the legatees were at liberty to withdraw from the colony such part of the inheritance as had been acquired by the grantee during his residence therein, but on payment of a duty of extraction, whether the grantee had been of Spanish or foreign origin, of ten per cent, if his residence had been of five years, and fifteen per cent, if over. Now it appears from Mr. Michael Drausin Harang's own statement, that it was in consequence of the inducements held out by the cedula that his father removed to, and established himself in, the colon}'-. If he thereby accepted the benefits of the law, he, as a matter of course, according to the argument of the Spanish authorities, which must be allowed to have great force, assumed likewise its obligations. Thus, after a five-years' residence he became a Spanish subject ; and thus the property acquired by him became chargeable with the duty of ex- traction specifically provided ; and all this in consequence of a volun- tary and deliberate act of his — a species of agreement between him and the Spanish government. If by this act Mr. Harang's father divested himself of his American citizenship, and placed his property beyond the pale of the protection of the United States, can the provisions of the treaty be invoked in the case ? I am unable, without other information than that now in my possession, to arrive at any but a negative solution of that question, which, however, with all deference, I submit for your consideration. In case the foregoing view of the subject should not prove the cor- rect one, or if the claimant should be able to present his case in a light which would bring it clearly within the purview of the treaty, I would ask you to consider whether, under its provisions, exemption from the duty of detraction can be demanded for the proceeds of any other than real property. As my dispatch No. 31, with the negative answer of the Spanish government to the application made in the case, will have reached your department since the date of your No. 14, I will, before I move further in the matter, await your ulterior directions on that and the present communication. I am, sir, with great respect, your obedient servant, A. VAIL. Hon. Daniel Webster, Secretary of State of the United States, Washington. 13 194 CASE OF THE BLACK WARRIOR, ETC Mr. Webster to Mr. Vai [Extract.] [No. 16.] Department of State, Washington, January 31, 1842. * * * # # ■ # A copy of that part of your dispatch, No. 48, which relates to Mr. Harang's claim, will be communicated to him ; and anything further that the parties interested may have to offer will be transmitted to you. If the view taken by the intendente of Porto Rico be confirmed by the Spanish government, the claimants, unless able to set their case in a new light, will have to look to, and abide by, the decision of the tribu- nals of the island. Your No. 31 upon this subject has not yet reached the department. Your dispatches Nos. 55 and 56 have been received.] I am, sir, respectfully, your obedient servant, DANIEL WEBSTER. Aaron Vail, Esq., Charge aV Affaires of the United States, Madrid. Mr. Webster to Mr. Irving. [Extract.] [No. 4.] Department of State, Washington, July 30, 1842. Sir : Enclosed is a copy of a letter from M. D. Harang, dated at New Orleans on the 5th instant, the subject of which you will under- stand by referring to the correspondence on it in your legation, espe- cially to dispatches, Nos. 14 and 16, to Mr. Vail, and to his dispatch, No. 48, to this department. As soon as convenient, after the receipt of this communication, you will address the Spanish government again upon the claim of Mr. Harang, and do all in your power to procure a favorable decision from it.. * # # # # * Washington Irving, Esq., #*c, fy c - Mr. Irving to Mr. Webster. [Extract.] [No. 4.] Legation of the United States, Madrid, October 8, 1842. Sir : I had the honor to receive, on the 12th ultimo, dispatch No. 4 from the department, enclosing a copy of a confidential letter of the Captain Genera] of the island of Cuba, and from Mr. M. D. Harang, CASE OF THE BLACK WARRIOR, ETC 195 dated at New Orleans, on the subject of his claim upon the Spanish government. In relation to the latter I made an informal application to the Office of State for a copy of the royal decree under which the authorities of Porto Rico acted ; and soon after I had procured it, I addressed, on the 24th September, a note to Count Almadora, Minister of State, of which the enclosed is a copy. To this I have, as yet, received no answer. After a careful examination of the treat}' of '95, and the provisions of the decree above referred to, it appears to me very doubtful whether the case of Mr. Harang can be supported under the stipulations of the treaty ; still, the reasons heretofore assigned by the Spanish govern- ment for then- refusal to make restitution do not appear to have much force, and are mainly on the presumption that Harang, the father, was a naturalized subject of Spain; of which no proof is adduced, and which is totally denied by his heirs. [Enclosure.] Legation of the United States, Madrid, September 24, 1842. The undersigned, envoy extraordinary and minister plenipotentiary of the United States, has the honor to call the attention of Count Alma- dora, First Minister of State and of Foreign Affairs of her Catholic Ma- jesty, to the case of Mr. Michael Drausin Harang, an American citizen, w^hich has ahead}- been the subject of correspondence with her Ma- jesty's government. It appears that Luis Alexander Harang, the father of the applicant, was a native of Louisiana, and citizen of the United States. In con- sequence of royal cedula, or decree, of 10th August, 1815, holding out inducements to foreigners as well as Spaniards to settle in the island of Porto Rico, by offers of gratuitous grants of land, and various privileges, he removed to that island, purchased land there with the funds which he had brought with him, cultivated, with his own means and industry, a sugar plantation ; and, after having amassed consider- able property, died at New York in 1815, bequeathing his propertv amoug his children. After his death his son, Michael Drausin Harang, in his own behalf, and in virtue of a power of attorney from his co-heirs, sold the property lying and being in the island of Porto Rico, with the intention of con- veying the proceeds out of the island, when the intendente interfered and exacted a dcrccho de extraction, or duty of exportation of 15 per cent., upon the gross amount of the sales ; the proceeds of which duty, amounting to near eleven thousand dollars, were gathered into the royal treasury. Against this exaction Michael Drausin Harang protested; his father having been a citizen of the United States, and his property, bequeathed to his heirs, exempted from all derechos dc extraction, according to the eleventh article of the treaty of 1795. The intendente maintained the justice of the exaction by alleging 196 CASE OP THE BLACK WARRIOR, ETC that Luis Alexander Harang, in accepting the royal cedula of August 10, 1815, and its benefits, subjected himself to its consequences, among which was this duty of extraccion of 15 per cent, on any property he might devise ; and further, that in becoming a naturalized subject of Spain he forfeited the protection of the eleventh article of the treaty of 1795, which only extended to citizens of the United States. At this point the matter rested when last brought before this govern- ment. In reply, Michael Drausin Harang observes that his father, Luis Al- exander Harang, when he migrated to the island of Porto Rico, never accepted the royal cedula — that is to say, the grants and benefits held out in it as a lure to colonists ; and in not accepting these, he did not subject himself to "all the consequences" of that decree. The most prominent inducement held out in that cedula was the gratuitous grant of land to any Spaniard or foreigner who would settle on the island and cultivate it; the said land to be assigned out in por- tions according to the number of colonists' families, and his slaves; and the assignment to be entered into the register of population, with the name of the colonist, the day of his admission, the number of the indi- viduals of his family, &c. Luis Alexander Harang neither asked nor received any such grant of land. Had he done so, a record thereof would exist in the register of population, and an authenticated copy of it would no doubt have been produced by the intendente to support his assertion. But no such record exists. Mr. L. A. Harang purchased land with his own funds which he had brought with him; he cultivated and improved it at his own expense, and by his unassisted means and industry. So far, therefore, from being a. beneficiary of the royal or colonial government, and, of course, subject to pay for the benefits re- ceived, he was, in this respect, a benefactor of the island. Then, as to his being a naturalized subject of Spain : The article twelve of the royal cedula says : " The first five years of establishment of foreign colonists in the island being past, and they then obliging them- selves to remain permanently on it, all the rights and privileges of naturali- zation will be conceded to them, as well as to the children they have brought with them, or which may have been born in the island, that they may consequently be admitted to the honorable employs of the republic and the militia," &c. Now, Mr. Michael Drausin Harang declares that his father never, either at the time of his arrival at the island, or during his residence there, did or contemplate any act to divest himself of the character of a citizen of the United States, or to acquire the character and rights of a naturalized subject of Spain. This point, on which the intendente rests the main stress of his justification, ought to have been substanti- ated b} r documentary evidence. The mere evidence in the island for any number of years could not make him a Spanish subject, without some overt act or declaration on his part ; nor could the royal offer of naturalization render its acceptance obligatory; a specific formality was necessary — the declaration of an intention to remain permanently in the island. If such declaration had been made for the purpose of obtaining naturalization, some record of it must exist, and ought to have been produced to maintain this vital ground of defence on the CASE OF THE BLACK WARRIOR, ETC 197 part of the intendente. No such proof is furnished, and Mr. Michael D. Harang declares that the archives of the secretaria of the island of Porto Rico have been diligently searched, but no evidences of his father's naturalization, or even domiciliation, can be found. In fact, he went to the island merely at the time when the decree of August 10, 1815, threw the door open to foreigners ; he availed himself of the general license of the decree, without accepting its specific grants and bene- fits, and incurring the consequent obligations. He lived and died a citizen of the United States ; and, as such, his heirs claim for the estate the right secured by the following paragraph of the eleventh article of the treaty of 1795 : " And where, on the death of any person holding real estate within the territories of the one party, such real estate would by the laws descend on a citizen or subject of the other, were he not disqualified by alienage, such subject shall be allowed a reasonable time to sell the same, and to withdraw the proceeds without molesta- tion, and exempt from all rights of detraction on the part of the govern- ment of the respective States." The government of the United States, maturely examining the case, are of opinion that the duty of fifteen per cent, has been wrongfully exacted on the property of the deceased, Luis Alex. Harang, a citizen of the United States, and ought to be refunded, with damages for de- tention, to his heirs. They are convinced that her Majesty's govern- ment will concur with them in this opinion when they have investigated the case ; and they have instructed the undersigned to use his utmost exertions in procuring a speedy adjustment of a claim where so much injury has been caused by delay. The undersigned avails himself of this occasion to renew to Count de Almadora the assurances of his distinguished consideration. WASHINGTON IRVING. Mr. Irving to Mr. Webster. [Extract.] TNo. 5.1 Legation of the United States, Madrid, November 5, 1842. ******** I enclose likewise a note from Count Almadora received in reply to my application in favor of the claim of Michael Drausin Harang ; a reply which, according to the slow process of Spanish investigations, does not promise a speedy decision of the question. [Translation of a note from the Secretary of State of Spain.] Chief Department of State, Palace, October 22, 1842. Sir: It being shown to this department that a claim is now pending in the courts of Puerto Rico, advanced by Michael Drausin Harang 198 CASE OF THE BLACK WARRIOR, ETC for the restitution of $10,978, which were exacted from him as duties of extraction to a foreign country on the estate of his deceased father, L. Alexander Harang, to which your letter of the 24th of September refers, I have ordered that the necessary information should be obtained on the subject ; and so soon as it has been received, I shall have the honor to reply to your above-mentioned note. I avail myself of this occasion to renew to you the assurances of my distinguished consid- eration. COUNT DE ALMADORA. Hon. Washington Irving, Envoy Extraordinary and Minister Plenipotentiary, Sfc. Mr. Calhoun to Mr. Irving. [No. 31.] Department of State, Washington, April 30, 1844. Sir: Since the receipt of your dispatches Nos. 4 and 5, no informa- tion has been received from your legation on the subject of the claim of M. D. Harang. You will, on the receipt of this dispatch, take an early occasion of renewing the subject, and endeavor to obtain a final decision, agreeably to the promise made by the Minister of Foreign Relations, in reply to your note renewing the claim under instructions from this department. I am, sir, respectfully, your obedient servant, J. C. CALHOUN. . Washington Irving, Esq., fyc, fyc, fyc, Madrid. Mr. Calhoun to Mr. Irving. [Extract.] [No. 32.] Department of State, Washington, May 29, 1844. Sir: At the request of M. D. Harang, I enclose, herewith, certain papers respecting his claim upon the government of Spain, and refer you to my dispatch No. 31, dated on the 30th ultimo, for instructions on the subject. Mr. Irving to Mr. Calhoun. [Extract.] [No. 45.] Legation of the United States, Madrid, June 24, 1844. Sir: I have the honor to acknowledge receipt of dispatch No. 31, recalling my attention to the claim of Michael Drausin Harang. I CASE OF THE BLACK WARRIOR, ETC 199 have not lost sight of this claim since my correspondence with the Spanish Secretary of State on the subject in September, 1842, but have not been able to procure any other reply to my inquiries than that the government was waiting for information on the subject. I have now addressed the Marques de Viluma, and hope the reply may be more explicit. It is difficult to give any view, however, of the delays and evasions to which all applications of the kind are at all times subjected in the Spanish offices, and more especially in the pres- ent agitated and revolutionary. times. I believe, in general, I have fared better in my negotiations with the Spanish government than most of my colleagues, some of whom complain bitterly that their personal applications are unavailing and their letters unanswered. Mr. Irving to Mr. Calhoun. [Extract.] (No. 48.] Legation of the United States, Barcelona, July 14, 1844. ******** The documents which you forwarded relative to the claim of Michael Drausin Harang throw no new light on the case, which was discussed by me, to the best of my judgment, in a note passed to the Spanish gov- ernment on the 24th of September, 1842, a copy of which was sent to your department. I was informed yesterday that I should soon receive a written answer on the subject. Mr. Irving to Mr. Buchanan. [Extract.] [No. 71.] Legation of the United States, Madrid, August 23, 1845. Sir: I have the honor to acknowledge the receipt of dispatch No. 47, with its enclosure. I transmit herewith a copy of a note addressed to Mr. Martinez dela Rosa, concerning the long pending case of Michael Drausin Harang; also a note to Mr. Alexander Mon, Minister of Finance, relative to the nullification of the Cuba decree. The reply of Mr. Mon, herewith sent, states that the matter is undergoing investigation — a usual reply with the Spanish government when pecuniary indemnity is required. ***##*#* Hon. James Buchanan, Secretary of State. 200 case of the black warrior, etc Legation of the United States of America, Madrid, August 12, 1845. Sir : It is with much regret that I find myself again obliged to urge the action of her Majesty's government in a case long since and re- peatedly presented for its consideration. I allude to the case of Michael Drausin Harang, a citizen of the United States, claiming the restitution of several thousand dollars, wrongfully exacted by the in- tendente of the island of Porto Rico from the proceeds of the sale of the estate of Luis Harang, deceased, under the title of derechos de extrac- tion, and in contravention of treaties existing between the United States and Spain. The claimant, who represents the heirs of the deceased, first at- tempted, many years since, to get redress from the tribunals of the island, bat was put off with the declaration that the case, with all its documents, had been referred to her Majesty's government at Madrid. To her Majesty's government, therefore, he addressed himself, through my predecessor, Mr. Vail, but with no better success ; so that, on my taking charge .of this legation, I found the claim among the matters especially charged by my government upon my attention. I accordingly addressed a note, on the 24th of September, 1842, to Count Almadora, then Minster of State and of Foreign Affairs, giving a full statement of the case, and complaining of the delay that had already occurred in its adjustment. Count Almadora, in reply, ob- served that, finding the claim pending before the tribunals of Porto Rico, he had inquiries made into the matter, the results of which he would communicate to me. A year and eight months elapsed without my receiving any further com- munications from her Majesty's government on the subject. I therefore, on the 16th of June, 1844, addressed a note respecting it to his excellency the Marquis of Viluma, then Minister of State. He retired from office before he had time to reply. I made a verbal representation of the case to General Narvaez, who held the office ad interim. With his characteristic promptness, he wrote me a note, dated the 20th of July, informing me that on the same day the Minister of Finance had been written to with urgency, for information in the premises, and that as soon as he should receive such information he would send me an explicit answer. I was also assurred, about the same time, at the Department of State, that a reply was actually in the course of preparation. Gen- eral Narvaez, however, ceased to have charge of the Department of State ; and with his relinquishment of it apparently ceased all further attention to this case — the promised reply having never been provided to this legation, nor any other communication made, on the subject by her Majesty's government. Thus for nearly ten years has this claim been in a manner bandied backward and forward between the colonies and the mother country, and between tribunals and departments. Answers have been promised to this legation, but have never been sent ; and there would seem to be a disposition to evade all definite action in the case, and tacitly consign it to oblivion. The respect, however, which this legation owes to itself and to the government which it represents, will not permit it passively to acqui- CASE OF THE BLACK WARRIOR, ETC 201 esce in such inattention to a matter which has so repeatedly been the subject of earnest communication ; and I now most respectfully, but urgently, claim from her Majesty's government that explicit answer on the case which has so long been promised. I have the honor to be, with high consideration, your excellency's obedient servant, WASHINGTON IRVING. His Excellency Mr. F. M. de la Rosa. Legation of the U. S. of America, Madrid, August 9, 1845. Sir : Your excellency cannot but be fully aware of the serious losses sustained by citizens of the United States, who made heavy shipments to the island of Cuba in the course of last winter, on the faith of a decree of the supreme authorities of the island, admitting certain articles free of duty for the space of three months, but who found their mer- chandise, on its arrival, subjected to the old duties, in consequence of an act of her Majesty's government, carried into effect in the interim, and without due notification, annulling the aforesaid decree. The government of the United States, keenly alive at all times to everything which may affect the rights of its citizens and disturb the harmonious relations of the two countries, could not but be deeply aggrieved by an irregular act, which took the confiding American mer- chant by surprise, and was calculated to impair that confidence and security in commercial intercourse, which it is the interest of both gov- ernments to sustain inviolate. I received instructions from my government, therefore, to make urgent remonstrances against this irregular proceeding on the part of her Majesty's government, manifestly unjust in itself, and in contradiction to the commercial usages prevalent among enlightened nations. I was instructed, furthermore, to say that the government of the United States felt confident that prompt and efficacious measures would be taken by her Majesty's ministers to redress the wrongs thus occa- sioned, and I was instructed to intimate, that, in the opinion of the President of the United States, those citizens who had imported any of the articles embraced in the decree into the Havana between the 20th of February and the 7th of April, 1845, without knowledge, at the time of their departure from the United States, that the decree had been annulled, were entitled to be indemnified by the Spanish government for the losses they had sustained. I accordingly, on the 15th June last, addressed a note to the foregoing purport, to his excellency Mr. Francisco M. de la Rosa, her Majesty's First Minister of State, and I trusted that the gravity of the case, the obvious justice of the claim presented, and the importance attached to it by the government of the United States, would have procured instant and satisfactory attention to my communication. It is with surprise and regret, therefore, that I find nearly two months suffered to elapse without the least notice being taken of my note, and without even the receipt of it being acknowledged. 202 CASE OF THE BLACK WARRIOR, ETC. To address a second note to the Minister of State appears to me, under present circumstances, useless. If he suffered the first to lie un- regarded, when he was present in the capital, it is not likely he would pay more attention to a second, now that he is attending her Majesty in the distant provinces. Under these circumstances, and knowing the earnestness with which my government looks for a speedy adjustment of this matter, I have deemed it expedient to press it upon the attention of your excellency. I will merely observe that it is a case in which nothing is gained by delay; on the contrary, it grows in importance under silence and neglect, so that an act which, if promptly remedied, might be palliated as the unintentional result of hurry or inadvertency, may be tacitly aggravated into a serious cause of offence. I have the honor to be, with high consideration, your excellency's obedient servant, WASHINGTON IRVING. His Excellency Alexander Mon, Minister of Finance. [Translation.] Madrid, August 13, 1845. Sir : I have the honor to acknowledge the receipt of your note of the 9th instant, and, as the business to which it refers is actually undergo- ing investigation, (pendiente de instruction,) the resolution which may be formed concerning it will be duly communicated to you through the regular channel of the Department of State, without more delay than is necessary. I have the honor to reiterate, &c, &c, A. MON. Mr. Buchanan to Mr. Saunders. [Extract.] [No. 17.] Department of State, Washington, December 6, 1847. * * * # # # My present object is to call your special attention to the claim of M. D. Harang, respecting which ample instructions were transmitted to Mr. Vail in 1841, and to your predecessor, accompanied by documents and papers connected therewith. These will be found on file in your legation. You will discover that no reply has ever been given to a note of Mr. Irving, of the 12th August, 1845, representing the claim of Mr. Harang in very strong language, and urging upon the then Minister for Foreign Relations the necessity of a decision upon it. Since Mr. Irving quitted the mission, the subject does not appear to have re- ceived any attention. ****** You will, as early as practicable after the receipt of this dispatch, remind the Spanish government that the letter of Mr. Irving, above CASE OF THE BLACK WARRIOR, ETC. 203 referred to, remains unanswered, and will, at the same time, take oc- casion to urge a prompt and favorable decision upon the claim. I have not, at present, leisure to look carefully into this case, and therefore express no opinion upon its merits, or the amount of indem- nification that ought to be demanded. This examination will devolve uDon you, with the advantage of all the evidence before you, fur- nished at various periods by the parties themselves, who will, doubt- less, cheerfully supply you with any additional information or papers which they or yourself, after examination, may deem useful or neces- sary ; and will correspond directly with you on the subject. I am, sir, respectfully, your obedient servant, F J JAMES BUCHANAN. Mr. Saunders to Mr. Buchanan. [No. 29.] Legation of the United States, Madrid, February 8, 1848. Sir : I have the honor to acknowledge the receipt of your dispatch No. 17, with its enclosures, calling my " special attention" to the claim of M. D. Harang. As the counsel for the claimant seems to be laboring under some misapprehension as to the attention given to the claim by this legation, and to afford you some idea of the difficulties and delays which have to be encountered in all cases involving a pecu- niary demand against this government, I take the liberty of giving you a brief recital of what has transpired in regard to this particular case. The claim was first presented to the minister here by Mr. Vail, in April, 1841. In September, 1842, Mr. Irving renewed the application, giving, at the same time, a fall and accurate statement of the facts in- volved in the case, with a reply to the grounds taken by the intendente of Porto Rico in support of his proceedings, in which he denied that Alexander Harang had ever been a naturalized citizen of Porto Rico, or that he had done anything to bring him within the operation of the royal decree of August, 1815. In June, 1844, he addressed a note to the minister, requesting to be furnished with certain information which, it appears, had been called for from the authorities at Porto Rico. Again, in August, 1845, Mr. Irving addressed a strong note to the minister, complaining of the delay, and urging, in the most pressing manner, the necessity of an early decision. Finally, in June, 1846, a few weeks before his departure, he again urged upon the minister, in the most earnest terms, that he should give some definite reply. In the dispatch to the department, No. 82, which followed, he states he had learned the case was then before the " royal council," for final ad- judication. In this situation I found the claim when I succeeded to the business of the legation. I certainly did not feel myself called upon to do anything until such time should elapse as might be sufficient to enable a Spanish council to come to a conclusion. I had revived and pressed one or two other cases, with as little success as my prede- cessors. On inquiry, I find an answer had been received from the ministry of State, a' short time before my return from France, which had been filed by the Secretary, and had escaped our attention until 204 CASE OF THE BLACK WARRIOR, ETC. the receipt of your dispatch. But as the decision is not final, I pre- sume nothing will be done by the authorities at Porto Rico before informing the parties interested. As the matter now stands, I do not see what further can be done here, unless I shall be furnished with some new matter, to ask for a reconsideration. That you may understand the grounds of the decision, so as to direct the attention of the council to the points on which it is made to rest, I herewith enclose a copy, and shall await your further directions. I am, sir, yours, respectfully, R. M. SAUNDERS. James Buchanan, Esq., Secretary of State. [Translation.] Chief Department of State, Palace, September 7, 1847. Sir : With respect to the various communications made to this de- partment by the legation of the United States, praying that Mr. Drau- sin Harang, a subject of that republic residing in Porto Rico, should be exempted from paying the duty of extraction on the property inherited by him from his deceased father, and that the sum of $10,978 exacted from him with that object should be repaid, I have the honor to inform you that a communication has been addressed to me by the Treasury Department, being a copy of the resolution (or order) on this subject given to the intendente of Porto Rico. Agreeably to this resolution, (or order,) it appears clearly that, ac- cording to the testament and codicil of Mr. Harang, he was natural- ized. In the treaty concluded in 1795 between Spain and the United States, it is established that the subjects of either power may freely dispose of the property possessed by them in the territory of the other, as well as their heirs, agreeably to a will or ab intestato, without pay- ing other duties than those which the natives of the country would have to pay, declaring them free from the duty of retention ; but as this latter duty is not now in question, the duty of extraction being that con- cerning which the present resolution is given, to the payment of which all persons who carry property out of Porto Rico are subject, even though they be Spaniards and colonists of the island, as well as their children and heirs, in virtue of the royal cedula of August 10, 1815, now in force, and confirmed by the treaty between Spain and the United States of October 27, 1819, the claim of Mr. Drausin Harang is not founded in justice. Accordingly, by agreement with the report of the assessor of the superintendency, and of the united sections of the State, grace and justice, treasury and the colonies, the acts and other documents annexed relating to this case are returned by the Treasury Department to the intendente of Porto Rico, in order that the superin- tendent, sub-delegate, and superior board of treasury of that Island may determine what they consider just, until the case be terminated. I avail myself of this occasion, &c. ANTONIO CABALLERO. To the Acting Charge d'affaires of the United States at Madrid. CASE OF THE BLACK WARRIOR, ETC 205 Mr. Saunders to Mr. Clayton. [Extract.] [No. 50.] Legation of the United States, Madrid, July 7, 1849. I have received from Mr. Charles De Selding, the attorney for the heirs of Harang, sundry documents in support of their claim on the Spanish government, and as these proofs change, in some degree, the nature of the demand in favor of the claimants, I shall lose no time in taking the necessary steps for reviving the claim, and, as I trust, with more success. ***** Mr. Saunders to Mr. Clayton. [Extract.] [No. 51.] Legation of the United States, Madrid. September 25, 1849. #*#***## I also submit copies of the correspondence relative to the claim of Michael Drausin Harang ; from which you will see the matter has assumed a question of importance, not so much from the amount involved as from the construction given to the 11th article of the treaty of 1795, a construction which, as I humbly conceive, is not warranted either by the intent or letter of the treaty. As I considered it a matter of im- portance to have the question decided, and believed it not likely that the claimants would ever receive anything without some arrangement of the kind, I was induced to submit the proposition as contained in my note of the 26th of July. The claim of Mr. D. Harang stood rejected, without the smallest probability of its being reconsidered. The claim of Madame de Viar had been presented by my predecessor — had been again and again urged by him, and revived by myself, under special instructions from the department, to which no answer had ever been given. I considered it time to close the matter in some way. I was further induced to submit th,e proposition, from the belief that if ac- ceded to by the government here, and approved of by the President, it might facilitate the appropriation by Congress for the settlement of the " Amistad case." This question, as you are aware, has already excited some feeling; and as the appropriation has been three times recom- mended by the President and refused by the House, it is likely to em- barrass the legation here, unless the appropriation shall be made at the next session of Congress. It is a matter of importance, too, that those, who have made investments in real estate in the island of Cuba, which, as I understand, are considerable, and which have been made under the impression they were protected by the treaty, should know whether the interpretation of the royal council is to be sustained. The question 206 CASE OF THE BLACK WARRIOR, ETC. is now altogether one of construction, as the facts are no longer in dispute. If the government has the right to levy this duty of 15 per cent., under the title of " derechos de extraccion," then one thing is certain — they are more likely to increase than to lessen it. But as I was unable to obtain any answer to my note, I felt constrained by a sense of self-respect to withdraw the proposition. Indeed, after my note of the 20th of August, I had no alternative but to adopt that course or to suffer the matter to rest, which I could not think of doing. The proposition had been made on my own responsibility, and, as I thought, I was entitled, as an act of common courtesy, to an answer. I know that Mr. Irving had addressed two very strong notes of remonstrance to the minister in this very case of Harang, and had been unable to com- mand even an acknowledgment, and I considered it time to let them know that such gross inattention was not to be submitted to. Indeed, this very case of Harang strongly illustrates their manner of doing business, and what the foreign minister (it is not confined to one case alone) had to encounter in his intercourse with them. The case had been pending for ten years; notes of argument, of complaint, and of angry remonstrance had been repeatedly addressed to the different Ministers of Foreign Affairs, without receiving any other attention than the mere verbal answer that the matter was pending before the royal council; and after this long deliberation, they announce a decision which, if correct, should not have required twenty-four hours. Under these circumstances I felt fully justified in the steps I have taken. But as the minister has at length found time to answer, in which, as you will see, he declines the proposition, it will be for the President to decide what further is to be done in regard to the matter. Mr. Barrin- ger will, of course, await your instructions on the subject. Legation of the United States, Madrid, July 10, 1849. Sir: I have to call the attention of your excellency to the case of Michael Drausin Harang, and to the decision of the royal council, re- jecting his claim, as notified by his excellency Don Antonio Cabellero, in his note to me of the 7th September, 1847. The claimant, when in- formed of this decision, complained of its injustice, as being in conflict with the treaty of 1795, but was unable until the present time to furnish the necessary documents to enable me to call the attention of your excellency to the subject, and to ask a reconsideration of the matter. These proofs I beg now to submit to the consideration of your excel- lency, from which it will be seen that the decision is clearly erroneous, and by which great injustice has been done to the claimant. It appears that Luis Alexander Harang, the father of the present claimant, a citizen of the State of Louisiana, was induced to remove, about the year 1818, and to settle in the vicinity of Ponce, in the island of Porto Rico ; that he there acquired real estate and other property of considerable value, where he continued to reside until the year 1835, when he returned to the city of New York, where he died in that year. CASE OF THE BLACK WARRIOR, ETC 207 That before his death he had made his testament, by which he devised his estate in Porto Rico to Michael Drausin Harang and his other chil dren, all at the time citizens of the United States ; that the claimant having disposed of a part of the estate with the view of removing it to the United States, was forced to pay to the intendente of the island of Porto Rico the sum of near $11,000, as a tax or duty on export, which tax the claimant submits he was not liable to pay, and therefore claims to have refunded. From the decision of the royal council, as communicated to me by his excellency Don Antonio Caballero in his note of the 7th September, 1847, it appears the royal council has treated it as a case of the removal of " personal goods" from the island ; and being within the jurisdiction of her Majesty's dominions, the owner, though a foreigner, became liable to pay the same dues as the inhabitants of the country in like cases. This certainly would be so in the case of "personal goods," according to the 11th article of the treaty of 1795; but, as your excellency will see by adverting to the same article of the treaty, it is expressly pro- vided in regard to real estate, that the devisee, when a citizen or subject of another country, shall be allowed a reasonable time to sell the same and to withdraw the proceeds without molestation, and exempt from all rights of detraction on the part of the government. It is for the viola- tion of this provision of the treaty by the intendente of Porto Rico, in exacting the tax of which Michael Drausin Harang complains, and it is for the confounding real estate, with that of "personal goods" by the royal council, in its decision, in which the error has been committed, and which the claimant now respectfully asks may be reconsidered, and that justice done him which has so long been withheld. Your excellency is too sound a lawyer to render it necessary for me to point out the marked distinction between real estate and personal goods, the sound policy on which that distinction rests, and which is so clearly recog- nised by the 11th article of the treaty of 1795 ; nor is it necessary for me to urge upon your excellency the importance of having this pro- vision of the treaty observed between two countries who have hitherto respected its obligations with such good faith. I feel it only necessary for me to call your excellency's attention to the facts of the case, to sig- nify my protest against the decision of the royal council, as in conflict with the treaty of 1795, and respectfully, but most earnestly, to solicit a reconsideration of the question, so that justice and right may be done. I beg to renew to your excellency assurances of my distinguished consideration. R. M. SAUNDERS. His Excellency Pedro Jose Pidal, Sfc, 6fc, fyc. [Translation.] First Department of State, At the Palace, July 14, 1849. Sir : I have received your note of the 10th instant, in which you have been pleasecl to renew the demand for a return of the duties of 208 CASE OF THE BLACK WARRIOR, ETC. detraction, levied in Puerto Rico, on the sale of the real estate of M. Drausiu Harang, inherited by his sons, who are American citizens. You accompany that note with the proofs that Mr. Luis Alexander Ha- rang was also an American citizen, although it appears at the same time that he was subsequently naturalized in Puerto Rico, and, more- over, that the papers of sale of the property which he possessed in that island were authorized by his son, Michael Drausin Harang, lor him- self, and in the name of his brothers, who had given him full powers for that object. You assume that the royal council has confounded the regulations applicable to personal property with those relative to real estate ; and you assert that, according to the 11th article of the treaty of 1795, per- sonal property alone is subject to the duty of 15 per cent, of detraction, and that real estate is exempt from all duty. Permit me to rectify the interpretation which you give to the article in question. In that article I do not find the distinction which you would establish between real and personal estate. When it is said that the subjects and citizens of both countries shall have power to dis- pose of their personal property, this word is not placed in contradistinc- tion to real estate, for in that case the word would have been moveable property. In no form can it be admitted that personal property is sy- nonymous with moveable. Personal property comprehends both real estate and movable property that may belong to the individual in ques- tion. Respecting these descriptions of property in general, the article stip- ulates that the heirs, although they may be foreigners, shall succeed to the testator, without paying greater duties than those paid by the natives of the country in similar cases where the inheritance is established. In the last paragraph of the article it is stipulated, that " if by the death of any person possessing real estate in the territory of one of the contracting parties, this real estate should pass, according to the laws of the country, to a subject or citizen of the other party, and if this subject or citizen, in his character of foreigner, should be disquali- fied from holding it, he shall have a suitable time for selling it and col- lecting the proceeds, without hinderance, and without being subject to any duty of retention on the part of the government of the respective States." But it is not to be inferred from this, that real estate is exempt from all duty ; for you will agree that it would be absurd to subject moveable property to a duty, on its sale, as you suppose was done, and to leave free from all duty the sale of real estate, whose proceeds pass to foreign hands. The duty from which real estate is exempt is that of retention, and not that of detraction, amounting to 15 per cent., which is that paid by the heirs of Mr. Harang, and which was definitively estab- lished by the royal cedula of August 10, 1815, for the promotion of commerce, population, the arts and agriculture, of the island of Puerto Rico. In this light the royal council regarded it, and it was thus presented to the United States legation by my predecessor, in his communication of September 7, 1847. I trust that these explanations will convince you of the solid reasons for the resolution adopted in this matter, and that the duties exacted of • CASE OF THE BLACK WARRIOR, ETC 209 the heirs of Mr. Harang were established by general regulations, for cases of this kind, which regulations are in no wise opposed to the trea- ties subsisting with the^ United States. These treaties the government of her majesty observes witr^tfie greater loyalty, as it secures the good relations subsisting between the two countries. I avail myself of this occasion t© renew to your excellency the as- surances of my most distinguished consideration. PEDRO J. PIDAL. To the Minister Plenipotentiary of the United States. Legation op the Unites States, San Ildefonso, July 23, 1849. Sirs I have had the honor to receive the answer of your excellency, under date of the 14th, to my note of the 10th instant, in regard to the claim of Michael Drausin Harang. The matter is thus made to ap- pear a question of importance, not so much from the amount claimed as from the principle involved; as I do not hesitate to say the con- struction given to the 11th article of the treaty of 1?J95 by the decision of the royal council, as explained by your excellency in rejecting the claim of Mr. Harang, is not only in conflict with the understanding on the part of the United States, but, if sustained by her Majesty's gov- ernment, will tend in a great degree to render this article of the treaty of little value. As I understand the interpretation given to the article in question, when it is said in the first sentence of the article that the subjects or citizens of each party shall have power to dispose of their "personal goods" this phrase is not used in contradistinction to real estate, but the words " bienes personates" comprehend every description of property, whether moveable or immoveable, personal or real; and as this sen- tence gives the power to levy the same dues on the property of the for- eigner as the subject, it justifies the intendente of Porto Rico in having collected 15 per cent, on the proceeds of the sale of the real estate of Alexander Harang, from his son, Michael Drausin Harang. That the last sentence in the article, which declares "that when on the death of any person holding real estate within the territories of the one party, such real estate would, by laws of the land, descend on a subject or citizen of the other, were he not disqualified by alienage, such subject shall be allowed a reasonable time to sell the same, and to withdraw the proceeds without molestation, and exempt from all rights of "de- traction" on the part of the government of the respective States," does not exempt real estate or its proceeds, in the event of a sale for the purpose of withdrawing it from the country, from the payment of the same dues as personal effects. I certainly shall not undertake to ques^- tion the superior knowledge of your excellency as to what may be the law of Spain} yet I feel equally clear in asserting that, by the laws of the United States, the words "personal goods" could never be inter- preted as embracing " real estate." So we have the singular contra- diction that, according to the Spanish version of the treaty, (both being equally obligatory,) we have one interpretation, and, according to the 14 210 CASE OF THE BLACK WARRIOR. ETC. • • English version, quite a different one — an anomaly which certainly calls for some explanation. But, as I respectfully submit, whilst the interpretation given by your excellency conflict^ with the intent, if not with the letter of the treaty, that for w^ich I contend accords alike with the plain intent as well as with the letter. The first sentence relates to the disposition of the personal^, and the latter to that of the reality. There are several terms to be found in the first sentence whose technical and legal signification shows, beyond all question, that they could only be used as applicable to chattel estate, such as, sub- jects or citizens shall succeed to their personal goods, whether by tes- tament or ab intestato, in case of the absence of the representative, such care shall be taken of the said goods. These and the like expres- sions appear to me too plain to admit of doubt that chattels alone were intended to be embraced, and not real estate. So in the latter sentence the language is equally clear in its technical sense, as having reference to real and not to personal estate. What sense are we to attach to the sentence, " such subject shall be allowed a reasonable time to sell the same, [bie?ies raices — landed property,] and to withdraw the proceeds without ' molestation,' " if the local authorities are to be allowed to exact a tax ad libitum? — for if a tax of 15 per centum may be exacted, so may that of any amount at discretion. Again, what meaning is to be affixed to the latter words in the sentence, "exempt from all rights of detraction on the part of the government of the respective States ?" It may be that the word " detraction," in the English version of the treaty, has been improperly used, yet the word "retencion" is used in the Spanish version. I think it is quite apparent, taking the entire article together, that it was the intention of the contracting parties to give to the subjects or citizens of each power the right to settle within the dominions of the other, to acquire real estate, and at their death to dispose of the same, and to grant to the heir or devisee the right to sell and carry the proceeds to his own country without hindrance or molestation. Your excellency seems to think it would have been absurd to have rendered personal effects liable to a tax, and at the same time to have exempted the sale of real estate when its pro- ceeds were to pass into the hands of a foreigner. I answer, however absurd this may seem to be, it would not be more so than the contra- dictory sense sought to be given to the Spanish and English versions of the article. But the policy which has prevailed with the governments of the New World to induce foreigners to emigrate and invest their cap- ital in the lands of the country, may seem to explain what might other- wise appear as unreasonable. Such certainly has been the policy of the United States, and such seems to have been some of the inducements held out by the royal decree of August, 1815. In order to satisfy your excel- lency that the treaty has been thus understood and acted on in the United States, I give you an extract from a letter from the United States consul, resident at Porto Rico, who says : " Don Antonio Cabal- lero, in his letter of September 7, 1847, to the minister of the United States at Madrid, says that the duty of retencion (in the English copy of the treaty it is called the right of detraction) is not in the question. I insist that it is this very duty of retencion which is in question, as regards the proceeds of the sale of this real estate of Alexander CASE OF THE BLACK WARRIOR, ETC. 211 Harang ; when we separate this, the claim falls to the ground." It must have been so understood by my predecessor in presenting, as well as by my government in urging, the demand. For if the treaty is to re- ceive the interpretation give» it by the decision of the royal council, then the claim was too groundless to have raised a question, and the ten years' correspondence about it has been labor lost. Again, if the construction contended for by your excellency should prevail, there would be no equality in the privileges secured by the treaty, as a citizen of the United States, who may inherit real estate within her Majesty's dominions, is subject to a high duty in the sale and withdrawal of its proceeds ; whereas a citizen of Spain is subject to no duty for the dis- position of any real estate he may inherit in the States. I say this, as a female a few days since acknowledged before me, in Madrid, a deed conveying her real estate in Florida, which had been devised to her by a relative in that State, the proceeds of which she will, doubt- less, receive without the payment of any tax whatever. I submit, then, as worthy of the grave consideration of her Majesty's government, as the interpretation given to this article of the treaty by the decision of the royal council differs so widely from that which it has received in the United States, and operates so greatly to the preju- dice of our citizens, the point should be settled so as to be understood alike in both countries for the future ; and as to the past, common justice would seem to demand that due satisfaction should be made to the claimant. I flatter myself her Majesty's government may be induced to take this just view of the question, and in order to the settlement of the present claim in a satisfactory way, as well as some others now pend- ing, it is my purpose to submit a proposition for their adjustment, which I am induced to hope may receive the favorable concurrence of your excellency. I avail myself of the occasion to renew to your excellency assurances of my distinguished consideration. R. M. SAUNDERS. His Excellency Don Pedro Jose Pidal, &c, &c, &c. [Extract from Translation.] First Department of State, At the Palace, September 17, 1849. ******** The claim of the heirs of Mr. Drausin Harang, you are aware, is positively denied by the Treasury Department, and I am very sensible that the reasons recently alleged by you have not changed my convic- tion upon this point. The last argument presented in your note of the 23d of July, is this .: that you assert the English version of the 11th article of the treaty of 1795 has the words right of detraction, instead of right of detention, which occurs in the Spanish version. But in which- ever mode this matter be considered, either in the English or the Spanish version, the result will always be, that in the first part of the CASE OP THE BLACK WARRIOR, ETC. 11th article, a perfect equality is established with the natives of the country, and nothing more, as to the right of acquiring and disposing of property in ther respective territories, "without paying other or greater duties than those paid in like cases by the citizens of the country." Conse- quently, Mr. Drausin Harang could not dispose of his property on more favorable conditions than the other inhabitants of Puerto Rico. The second part of the 11th article, in which the right of detraction appears to be abrogated, refers to the ancient right of advenia and detraction, which, at the time of negotiating the treaty, began to be ab- rogated in Europe. Thus it is seen that this abrogation is established where property fell to foreigners, " who, in that capacity, were dtsquali-" /led from holding it." This does not happen in the present case, since the son of Mr. Harang could hold the inheritance of his father without any legal impediment. This interpretation of the second part of the 11th article I not only consider as logical and natural, but I also regard it as necessary ; for, as it concedes to foreigners a privilege above the natives of the coun- try, by exempting them from duties of detraction, which those pay, this part of the article would be in contradiction to the first, which es- tablishes a complete equality upon this point between both. I flatter myself that these considerations will satisfy your enlightened judgment, and that you will acknowledge my inability to give any other decision upon these claims, and to offer to you, before leaving this country, an evidence of my desire to please you. I avail of this occasion to reiterate to you assurances of my distin- guished consideration. PEDRO DE PIDAL. The Minister Plenipotentiary of the United Stales. Mr. Barringcr to Mr. Webster. 'b [No. 111.] Legation of the United States, Madrid, November 8, 1852. Sir: I have the honor to enclose, herewith, a communication ad- dressed to Charles De Selding, esq., Washington city, agent for the heirs of Louis Alexander Harang, in the matter of their claim against the Spanish government. The communication is left unsealed, to be read by you, and then to be delivered to Mr. De Selding. The amount claimed is considerable, and the principle involved is important, as the decision in this case asserts the right, under the 11th article of the treaty of 1795 with Spain, to demand and exact from American citizens in the United States, to whom inheritances in the Spanish possessions may have descended, a large per centage on the same as duties of export, ("right of detraction,") whether the said es- tates so descended may have been of real or personal property, situated and being in the said Spanish possessions. The subject is respectfully submitted to your consideration. CASE OF THE BLACK WARRIOR, ETC 213 I have to acknowledge the receipt of dispatches from the Depart- ment of State to No. 63, of the 14th August, inclusive. I have the honor to remain, with the highest respect, sir, your obe- dient servant, D. M. BARRINGER. Hon. Daniel Webster, Secretory of State. Mr. Barringer to the Secretary of State. [No. 127.] Legation of the United States, Madrid, February 23, 1853. Sir: I have the honor to communicate the final decision of her Majesty's government, again rejecting the claim of the heirs and devi- sees of L. A. Harang, deceased, referred to in despatch No. 70 of the 3d ultimo, from the Department of State, and to transmit herewith copies of all the correspondence which has taken place between her Majesty's Minister of State and myself on the subject. A full examination has induced me to believe that this claim is well founded and just, although so long subjected to the embarrassing delays and difficulties which are too often thrown in the way of the recovery of pecuniary demands from the Spanish government. I re- gret to say that, in my opinion, other and more stringent measures will be necessary .if the government of the United States mean to enforce the payment of this demand. The future means of its final and satis- factory adjustment are now submitted to the government at Washington. I have the honor to acknowledge the receipt of dispatches from the department to No. 72, (marked 71,) of the 26th ultimo, inclusive. I have the honor to be, with the highest respect, sir, your obedient servant, D. M. BARRINGER. To the honorable Secretary of State. Legation of the United States in Spain, Madrid, February 10, 1853. Sir: I am instructed to present again to the attention of her Majes- ty's government the claim of the heirs and devisees of the late Louis Alexander Harang against the government of Spain, and to ask that it may have a prompt and favorable consideration and conclusion. The case has been a long time pending between the two govern- ments, and the department of which your excellency has charge is in possession of its history. My immediate predecessor brought it to the special notice of her Majesty's government in his notes to that depart- ^/ment of the ljfth and 23d July, 18*9, and the reply which was then given , / by the Marquis of Pidal was deemed insufficient and unsatisfactory by the government of the United States. The claim is for $10,978 12£, 214 CASE OP THE BLACK WARRIOR, ETC. and interest on the same, which was exacted in the year 1839, by the in- tendente of the island of Puerto Rico, as a tax of fifteen per cent, for the removal of the proceeds of the sale of the real estate owned in said island, and devised by the said Harang, a citizen of the United States, though resident for several years in the island, to his children, all of whom were born in, and at the time were resident citizens of, the United States. Against this exaction the said dqpisees and heirs pro- tested at the time ; and, under the auspices of the American govern- ment, soon afterward presented this claim for the repayment of the sum thus exacted. The government of the United States, looking at the clear distinction which is made in the treaty of 1795 between the proceeds of the real and personal estates of foreign residents in the island, have always insisted on the justice of this claim in the long- correspondence which ensued, and a reference to which will more fully acquaint your excellency with all the facts and circumstances of its origin and prosecution. While it is clearly admitted that the per- sonal goods of American residents in the island are liable to such dues ©r taxes to the government as are paid by Spanish subjects under simi- lar circumstances, it is fully denied that the proceeds of real estate of American citizens are subject to any such exaction ; but it is insisted that they may withdraw the same (in the language of the said treaty, article 11th) "without molestation, and exempt from all rights of de- traction on the part of the government of Spain." The consideration of this claim, as well as others which are still pending, has been postponed to other matters of more urgent import- ance, which have from time to time demanded my attention during the period (so important in the relation of our respective governments) of my residence at this court. I trust now, however, that it will receive the early attention of your excellency, and that a final and favorable conclusion may be given to the same. I avail myself, &c, &c. D. M. BARRINGER. His Excellency Count of Alcoy, President of the Council and Minister of State. [Translation.] First Department of State, Palace, February 17, 1853. Mr Dear Sir : I have had the honor to receive your excellency's note of the 10th instant, relative to a claim of Mr. Luis Alexander Harang, for the reimbursement, by the Spanish government, of a sum ©f money which was exacted from him by the intendant of Porto Rico, as duty for exporting from the island certain property he possessed in it through the death of his father. In support of the right, which your excellency says is on the side of the party interested, you cite the treaty of 1795, reproducing the argu- ment to show that said treaty establishes a difference Tbetween per- sonal property and real estate, by which the latter is declared exempt CASE OF THE BLACK WARRIOR, ETC 215 from the payment of 15 per cent, on exportation. This argument, as well as the other observations presented by your excellency's prede- cessors on taking charge of the matter, were duly answered in the note of the Marquis de Pidal, which you quote likewise, and to which I must now refer in everything. There had been previously addressed to that legation another note, dated 7th of September, 1847, communicating a decision which had^>een adopted conformably with the opinion of the royal council, disregarding the claim of Mr. Harang, on the grounds stated in the aforesaid note of September the 7th. This decision, which was adopted after examining minutely all that had been alleged in favor of the claimant, all the proper formalities being observed, also put an end to the business ; and it cannot be con- cealed from one of your excellency's enlightened mind that it is not in the power of her Majesty's government to set aside the decision afore- said, provoking fresh discussions upon the subject which called it forth, much less to alter what is founded upon the opinion of the first con- sultative body of the State. Nor are there any new arguments or facts alleged at present which could be a sufficient cause for resuscitating a question already settled. For this reason, and in view of the considerations I have set forth, I flatter myself that you will feel convinced that her Majesty's govern- ment has not acknowledged the claim of the American subject, Mr. Harang, because this would be in opposition to the rules of justice and the actual state of the matter. I avail myself of this occasion to renew to you the assurances of my most distinguished consideration. T. K. Y. H. Your obedient servant, THE COUNT DE ALCOY. To the Minister Plenipotentiary of the United States. i Legation of the United States in Spain, Madrid, February 20, 1853. Sir : I have had the honor to receive your excellency's note of the lrfth instant, on the subject of the claim of the heirs and devisees of Luis Alexander Harang, deceased. The great length of time during which this claim has been pending, and the full examination which it has repeatedly received, as well as the declaration of your excellency that the decision heretofore made against it by her Majesty's govern- ment is reaffirmed, and now to be regarded as final and conclusive on their part, restrain me from observations which the merits of the de- mand might otherwise render necessary and proper. Your excellency cannot, however, fail to perceive that there is a direct collision in the construction respectively given to the 1.1th article of the treaty of 1795 by the government of her Majesty and that of the United States. Under these different constructions Spanish subjects owning real estate in the latter country are enjoying advantages which are denied to the citizens of the United States in the dominions of her Catholic Majesty. This is manifest injustice. It seems to the under- 216 CASE OP THE BLACK WARRIOR, ETC signed that the distinction expressly made both in the Spanish and English text of the 11th article of that treaty between personal goods and real estate, " bienes personales y bienes raices," (a distinction be- tween which is recognised in the legal code of every civilized nation,) is too clear to admit of a doubt, and especially when these two classes of property are contradistinguished, the one from the other, in the two paragraphs of that article, whose framers coul^ not have employed plainer language to express their meaning. While the citizens and subjects of each party shall have power to dispose of their personal goods within the jurisdiction of each other, and may take possession of the same, paying such dues only as the inhabitants of the country wherein the said goods are shall be subject to pay in like cases, it is expressly declared that when, on the death of any person holding real estate within the territories of the one party, such real estate would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by being an alien, such subjects shall be allowed a reasonable time to sell the same, and to withdraw the pro- ceeds without molestation, exempt from all rights of detraction (derechos de retencion) on the part of the government of the respective States. This latter provision of the article embraces the very case now in question. It is unnecessary to say to your excellency that if this be the true construction of the treaty, it is not in the power of her Majesty's government, by any royal order or cedula whatsoever, or by any deci- sion of the royal council, to change its effect without the consent of the United States. The final decision now made by her Majesty's government will be communicated immediately to that of the United States for their further advice and action in the premises. I avail myself, &c, &c, D. M. BARRINGER. His Excellency the Count of Alcoy, President of Council and Minister of State. Mr. Barringer to Secretary of State. [Extract.] [No. 129.] Legation of the United States, Madrid, March 8, 1853.' Sir : I have the honor to transmit herewith copies of an additional note from his excellency the Spanish Minister of State, of the [25th] ultimo, and of my reply to the same, under date of the [4th] instant, on the subject of the long pending claim of the heirs of Louis Alexander Harang, deceased. This claim originated in the year 1839. Michael D. Harang, for himself, and as attorney and agent for his brothers and sisters, having made his protest before the American consul at Ponce, in the island of Puerto Rico, on the second of March of that year, against the unlawful exaction of fifteen p Q r cent, on the proceeds of the sale of the real estate of his father, the said L. A. Harang, by order of the intendente of that island, amounting to the sum thus taken of $10,978, 1 real and 16 maravedices. CASE OP THE BLACK WARRIOR, ETC 217 After pending for some time in the tribunals of that island, to which Mr. Harang was directed for redress, the claim was presented to the government at Madrid, by a note from this legation, on the 27th of April, 1841. Since that time it has been the subject of much corres- pondence on the part of this legation, and of great and vexatious delays on the part of her Majesty's government — delays frequently and strongly complained of by my predecessor in office. In the year 1847, after taking the opinion of the royal council, the claim was rejected, and upon an application for reconsideration, was again rejected in the year 1849, and then referred by my immediate predecessor to the gov- ernment at Washington for new instructions. Under these renewed instructions, received only during the present year, I deemed it my duty to present the subject at once to her Majesty's government, and, under all the circumstances of the case, to urge its immediate and favorable decision. In my dispatch, No. 127, of the 28th ultimo, I had the honor to communicate the correspondence then had by me with the Spanish government on this subject. It will be seen from that now transmitted, that the grounds of opposition to this claim, if not changed in fact, are added to by new arguments, involving most important prin- ciples in the construction of the treaty of 1795. While the claim was originally resisted on the ground that the father and testator was a naturalized subject of Spain, (a circumstance which was not true, but which, if tiue, would not make the slightest differ- ence in my opinion ;) then, that in accepting the benefits of the royal cedula of 1815, he subjected himself to its consequences, one of which was the liability of this duty of " extraction" or export, on withdrawing the estate from the island ; then, that there was no distinction between personal and real estate in the eleventh article of the treaty of 1795 ; then, that the tax exacted was not of the class referred to in that article ; then, that the case was finally terminated by the decision of the royal council, with which her Majesty's government could not interfere ; and by other similar objections, all of which have been successively, and, as I think, successfully answered ; the Spanish government have now assumed the high ground that the stipulations of the treaty were never applicable in any manner or sense to the colonies of Spain ; and that, even if they were, the case in question is not within the provision made in the last clause of the eleventh article of that treaty ; for the heirs of Harang, the father, were not " disqualified," (" inhabiles,") as aliens, from possessing the real estate which was sold, and on the proceeds of which the tax was levied. How I have attempted to reply to these new arguments, the last of which, I freely admit, is the most plausible yet presented, will be seen by the correspondence now communicated to the department. I am also free to say that I anticipate no favorable conclusion to this and other American claims now pending, unless other measures are adopted than those of mere official correspondence. I have the honor to remain sir, &c, D. M. BARRINGER. Hon. Secretary of State. 218 case of the black warrior, etc Legation of the United States, Madrid, March 4, 1853. Sir : I have had the honor to receive your excellency's note of the 25th ultimo, in reference to the claim of the heirs and devisees of Alexander Harang, deceased, and will at the earliest period transmit a copy of the same to the government at Washington, to which the case has been referred for further advice and action. T cannot forbear, how- ever, to remark briefly on the new arguments which have been adduced by your excellency in support of the decision taken by her Majesty's government on this subject. In the first place, it is now insisted that the provisions of the treaty of 1795 do not extend to the colonies of her Majesty's government, but are confined in their operation to the peninsula ; and that, inasmuch as there never has been any prohibition against foreigners holding real estate in the peninsula, the last clause of the eleventh article can only be considered as applicable to cases arising in the United States, where such prohibition does exist. To this it is sufficient to answer, that there is no exception of the colonies of Spain in the terms of the treaty ; on the contrary; its lan- guage is as comprehensive as possible, embracing within its operation the "dominions," "territories," "jurisdictions," "citizens and subjects," of both the high contracting parties, "without exception of persons or places." The territory of Louisiana itself, to which reference is made in the treaty, was then a colony of Spain. That its stipulations extended to the Spanish colonial possessions has never been denied, as far as I am aware, by either power, from its date in 1795, to the present time. Such has been the understanding ever since. Commerce has been conducted j claims presented and adjusted ; judicial proceedings, both criminal and civil, instituted and terminated, not only without objec- tion on this account, but for the very reason that such subjects, although arising in the colonies of Spain, are embraced by the treaty. Indeed the provisions of this treaty furnish the chief guarantee for the security of the rights of person and property in every part and jurisdiction of the two nations. What would be the condition of American citizens in the island of Cuba or Puerto Rico, without the stipulations of the seventn, twentieth, and other articles of that treaty ? It is too late to say that it does not extend to the colonies of her Catholic Majesty, and against the conclusion of your excellency I do most earnestly protest, as contra- dicted by the words of the treaty itself, by the general understanding and practice under it ever since, and as jeoparding the highest and most important interests of American citizens, having commercial or other transactions with these colonies. As to the construction of the particular clause in question, its very language manifestly shows that it was not intended to be confined in its operation to cases arising in theUnited States only. The expressions used are reciprocal and mutual, referring to the "citizens and subjects" of either government, and declaring that, in the case provided for, the proceeds of the property sold may be withdrawn by the heir without molestation, and exempt from all rights of " detraction" on the part of the governments of the " respective States" (" sin obstaculo exerto de CASE OF THE BLACK WARRIOR, ETC. 219 todo derecho de retencion de parte del gobierno de los estados respee- tivos.") If, then, this provision could not extend, as your excellency says, to the peninsula, because no such prohibition to hold real estate by a foreigner ever existed here, it must necessarily embrace the other and colonial territories of her Catholic Majesty, for certainly the terri- tories of both States respetively are referred to and embraced in this clause of the treaty. But I contend, and respectfully submit to your excellency, that this provision of the treaty extends to all the pos- sessions of her Catholic Majesty, peninsula and colonial; for although a prohibition to hold real estate, (bienes raices,) on the part of a for- eigner has not yet existed in the peninsula, it does not follow that such prohibition may not hereafter be created by law, to take effect not only here, but in the colonies of Spain. In fact, we find that in the year 1815 it was deemed wise and necessary to provide by royal cedula of that year for the possession and occupation of real estate by foreigners as colonists, in the island of Puerto Rico. And this brings me to the other principal argument of your excel- lency, to wit : That, admitting the stipulations of the treaty to extend to the colonies of Spain, this claim is not well founded, because not within the case provided for by the last clause of the 11th article of the treaty, for Mr. Harang was compelled to pay the duties of the products of the sale, not because the heirs of his father could not, but because they would not, possess the estate thus sold. In answer to this objec- tion, I ask, how could the heirs have taken possession of this property except under the royal cedula of 1815, which cannot contradict or vary the terms of the treaty, and which could only apply to colonists from Spain or other countries, except the United States, for whose citizens, to whom the real estate might descend in case of the death of the first owner, provision was already made by the treaty? But this circum- stance does not alter or weaken the argument, that when the case pro- vided for by the treaty arises, whether under or independent of this royal order or any other law, the foreign heir is entitled to all the bene- fits of such provision, free from all condition, " obstacle" burden, or tax not therein stipulated. Spain could not make a law to impair or vary the full effect of the treaty in any respect, without the consent of the United States, so far as concerns the rights and privileges of the citizens of the latter under the same. In the case provided for by the 11th article, the person who would be the heir of the citizen or subject of either country, native or naturalized, holding real estate in the same, were he not disqualified by being an alien from possessing the same, shall be allowed a reasonable time to sell and collect the proceeds of the property, and to withdraw the same to his own country, without hinderance, or tax, or condition of any kind inconsistent with his resi- dence or other privilege in his own nation. It is sufficient to bring such person within the provision of this article, that by the laws of the land such real estate would descend on him were he not an alien, (estos raices llegasen a pasar este por su calidad de estrangero fues inhabit para poscerlos.) Notwithstanding the apparent difference in the Spanish and English text of the treaty, this I take to be the substantial purport and meaning of the article. No change of residence is required on the part of the heir; no new conditions are allowed, other than such 220 CASE OF THE BLACK WARRIOR, ETC as are in conformity with the treaty itself. What is the case under the royal cedula of 1815 ? This royal order was intended to aid the colo- nization of the Spanish possessions beyond sea — to people with whites the islands of Cuba, Poto Rico, and St. Domingo. The privileges granted were personal to the colonists, who were required to be residents and established in the islands, and could not leave it, after a residence of five years, to live in their former country. These colonists could, it is true, leave their property, if they died in the island without forced heirs, to their relations or friends, wherever they might reside ; and their successors might enjoy the privileges conceded to their testa- tors, or the original colonists, if they would establish themselves in the island. But if they preferred to withdraw the inheritance, and did so after the testator had been established five years within the island, they niust pay the 15 per cent., as improperly exacted from Mr. Harang. It is manifest that this is not the case provided for by the treaty, which simply required that the claimant should be the person to whom the inheritance would descend were he not an alien, and which exacted no change of residence from his own country to be entitled to its benefits. Whatsoever provisions existed in this or any other royal cedula, con- trary to those of the treaty of 1795, were void and of no effect, with re- spect to the rights of the citizens of the United States, without the con- sent and concurrence of the latter; and it is not in the power of her Majesty's government to transfer a claim properly arising under the treaty, to other and different and contradictory provisions of the royal cedula of 1815, which was made and declared for another and wholly separate purpose. For these and other reasons contained in the pre- vious correspondence of this legation with her Majesty's government on this subject, I cannot concur in the conclusion to which your excel- lency has arrived against the validity of this claim. I avail myself of this occasion, &c, &c, &c, D. M. BARRINGER. His Excellency the Count op Alcoy, President of the Coimcil and Minister of State. Mr. Barringer to the Secretary of State. [No. 133.] Legation of the United States, Madrid, March 26, 1853. Sir : I have the honor to transmit herewith copies of a note from her Majesty's Minister of State of the 16th instant, and of my reply to the same, under date of the 19th instant, and of the final note of the former, dated 24th instant, on the subject of the claim of the heirs and devisees of L. A. Harang, deceased, referred to in my dispatches, No. 127, of 23d ultimo, and No. 129, of the 8th instant, to the Department of State. As it is now useless to attempt here to reverse the decision of her Majesty's government in this case, it is referred to the government of the United States for their further action in the premises, if deemed necessary or proper. This claim has now assumed a high degree of importance, not so CASE OF THE BLACK WARRIOR, ETC. 221 much from its pecuniary amount, though this is not inconsiderable, as from the magnitude of the principles involved, and especially from the position recently but solemnly taken by her Majesty's government, that the treaty of 27th October, 1795, is not, and never was, applicable to the Spanish colonies — a position which, with all its serious consequences, is respectfully submitted to the prompt and grave consideration of the government of the United States. I have the honor to be, with the highest respect, sir, your obedient servant, D. M. BARRINGER. The Hon. Secretary of State. The Count of Alcoy to Mr. Barringer. [Translation.] First Department of State, Palace, March 16, 1853. Shi: I have had the honor to receive the note of your excellency, dated the 4th instant, in reply to mine of the 25th ultimo, relative to the claim of the heirs of the American citizen, Mr. Harang. Although in the actual state of this affair a prolonged discussion seems to be unnecessary, nevertheless, certain principles having been affirmed by your excellency in the course of your remarks, which I do not consider that the government of her Majesty can admit, it is indis- pensable for me to enter again into the discussion, proposing, in so doing, to follow the same order in which your excellency is pleased to present your arguments. In the first place, your excellency, maintaining that the stipulations of the treaty of 1795 comprehended the Spanish colonies, in support of this opinion, limits yourself to citing the words of the treaty, ac- cording to which the exception affirmed in my note does not appear. In order that your excellency should allow the erroneousness of this opinion, it will be sufficient to observe, that when the treaty under con- sideration was made, every kind of intercourse between our colonies and foreign subjects was absolutely prohibited by the laws of the Indies ; and this so express prohibition, which, by no stipulation of the treaty, was declared revoked, made unnecessary all explanation upon the fact that the said treaty was only applicable to the territory of the peninsula; in proof of which it was sufficient to consider, that, in order that its pro- visions might extend to the territory of Louisiana, then a Spanish colony, it was necessary that a declaration to that effect should intervene, other- wise that colony would have remained comprehended in the general exception which then existed with respect to all. As to the surprise which it seems was caused to your excellency by the principle affirmed in my former note, that the treaties cannot refer to those dominions, your excellency will permit me to say, that I do not comprehend that surprise, seeing that your excellency might have ob- served the difference between the usages established for the peninsula 222 CASE OF THE BLACK WARRIOR, ETC and those which are in force beyond sea, as well in the manner in which foreign consuls exercise their functions, as with respect to shipwrecks, intestate successions by the subjects of other countries, and other mat- ters comprehended in the general administration in those points in which the stipulations of the treaties exercise their influence. Such a difference demonstrates that the colonies are not within the common law; and this being so, it could hardly be said that the stipulations of the treaties are alike applicable in all the territory of the Spanish do- minions. Upon this same point your excellency solemnly protests, adding that it is already too late for the government of her Majesty to make the declaration that the treaties are not extensive to the colonies. Your excellency will permit me to express my judgment that the protest, rather than the declaration, may be regarded as inconsiderate, (or extem- poraneous,) this being sufficiently proved by the declaration of the gov- ernment at Washington itself, stated in a recent note addressed by Mr. Everett to Sefior Calderon, dated the 5th of February last. Says the Minister of Foreign Affairs of the Confederation : " The treaty of 1795, if applicable to the colonies of Spain, which is not admitted by the government of her Catholic Majesty." Such language shows clearly that to the government at Washington the declaration against which your excellency protests was not new, seeing that upon this is based its proposition for a reform of the treaty of 1795. Limiting myself now to the particular clause of article 11th of this treaty, upon which it is pretended to found the right of Mr. Harang, 1 cannot do less than insist upon what I had the honor to expose to your excellency, that said clause cannot refer in any way to the colonial dominions of her Majest}'". That clause was necessarily made recipro- cal, and justly so, in provision of the case that the alien should be prohibited from holding real estate in the peninsula; but never could it comprehend the colonies, because these were closed, as I have said, to all foreign intercourse at the time the treaty was made. Although subsequently the royal letters patent of 1815 changed the condition of that part of the Spanish territory, it was not, on that ac- count, comprehended in the stipulations of the treaty ; and although these stipulations may have been applicable there, in so far as they refer to the general obligations which serve as a basis to the relations of friendship, they have not been applicable, nor can they be, in so far as they conflict with the provisions of the said royal letters patent. These letters, published by the Spanish government, in the use and free exer- cise of its power to administer the affairs of the colonies according as it might deem best, did not provoke any protest on the part of any nation, nor from the United States — an evident proof that all recognised, as could not be otherwise, the independence. of Spain to legislate in her colonies without attention or subjection to anterior treaties. In support of what I have just said, another consideration offers itself, which comes in to destroy the reflections contained in the last part of the note of your excellency, in which it is pretended that although the Spanish occupants of land, or those of other countries, might be sub- jected to the payment of the duties on the exportation of an inheritance, CASE OF THE BLACK WARRIOR, ETC. 223 'the Anglo-Americans, citizens of the Union, ought to be exempt from such duties. In order to give to the clause of the treaty referred to the interpre- tation which your excellency indicates, it will be necessary to place the citizens of the United States in a better condition even than the Span- ish subjects ; and such a situation, contrary to the rules of equity and to the exactions of self-respect, would have no better foundation than a stipulation inapplicable to the colonies, and which, even if it were appli- cable, would not comprehend cases of the kind of this of Mr. Harang, because the treaty makes no reference to property acquired under the condition of colonist-settlers on the land. With respect to such property, as advantages were enjoyed for its acquisition not in general conceded, compensations were also imposed, which depend in a certain degree upon the will of the alien ; since, whilst he has the power to hold the property, only in the case of withdrawing its proceeds by a spontaneous act, is he obliged to pay the compensation for the benefits received. If the Spanish government could have believed that the Anglo-Amer- icans were not subject to the payment of the duty on exportation, it would have from the first moment excluded them from the privileges conceded by the royal letters patent of 1815, because it would have been highly unjust, not to say absurd, that the benefits should be ex- tended to them, and not at the same time the burdens. I will conclude by manifesting to your excellencythatlhavenot been able to see without regret the turn which has been given to this affair, already determined, and which was believed to be abandoned for many years, and that a discussion already exhausted is still persisted in, since it may perhaps reveal a disposition little friendly, and little in harmony with that moderation and forbearance which the government of her Majesty employs when it addresses itself to that of the United States, on subjects of greater importance, and infinitely more clear in their jus- tice, than that which is the object of this correspondence. I avail myself of this occasion to renew to your excellency the assur- ance of my most distinguished consideration, &c, &c, &c, THE COUNT OF ALCOY. To the Minister Plenipotentiary, of the United States. Mr. Barringer to Count Alcoy. i Legation of the United States, Madrid, March 19, 1853. Sir : I have had the honor to receive your excellency's note of the 16th instant, in reply to mine of the 4th of same month, on the subject of the claim of the heirs of L. A. Harang, deceased. It is not my pur- pose, in this communication, to renew the discussion on the merits of the claim itself, both because, in the argument of your excellency, I find nothing new on a subject already exhausted, and more especially be- cause I do not deem it either becoming or useful to enlarge on a ques- tion which your excellency has been pleased to repeat to me is now 224 CASE OF THE BLACK WARRIOR, ETC. finally determined (" ya resuelto " ) by her Majesty's government. Your excellency will pardon me for saying, however, that it is a great mis- take on the part of your excellency to suppose that this claim has ever been "abandoned" at any time by the government of the United States, much less for " many years." On the contrary, it will be seen from one of the last notes addressed by my predecessor to the department in the worthy charge of your excellency, that it was still to be prosecuted. Neither can any inference of abandonment be drawn from the length of time it has been pending ; for such an argument would be fatal to most of the claims of American citizens presented and now urged upon her Majesty's government for final adjudication and satisfaction. If this claim has been along time undecided, a reference to the correspondence will show that it has not been for the want of urgency on the part of this legation or the government of the United States ; though I am happy to be able to do your excellency the justice to say, that since it has been brought to the attention of your excellency, it has received the most prompt consideration, as well as other matters which it has been my duty^ to bring to the notice of her Majesty's government during the period of your excellency's administration. As to the course ("giro") which this discussion has taken, I must be allowed to says that, while I am conscious of nothing inconsistent with the most friendly sentiments towards her Majesty's government, and least of all towards your ex- cellency, and of nothing incompatible with the calm and impassioned style of diplomatic correspondence, I must nevertheless always reserve to myself the right of judging what is due in such correspondence, not only to myself and the much more important interests of my country- men, but also to a proper respect for my own as well as the govern- ment which it is my duty to address under a just sense of all these re- sponsibilities. As to the great principle now for the first time invoked in bar to this claim, and compared with which the claim itself, though important to the petitioners, is as nothing, viz : that the treaty of 1795 was never ap- plicable to the Spanish colonies, I cannot do less than repeat my surprise at a proposition, which a review of all the diplomatic intercourse be- tween Spain and the United States will disclose, is of the most recent origin ; which is contrary to what has ever been the understanding of the latter ; and which, in the opinion of the undersigned, is not sus- tained by any examination of the provisions of the treaty itself, nor by its contemporaneous or subsequent history or construction. It is not my intention to be led into a general, though incidental, discussion of so grave a question on this much less important claim ; still, I cannot for- bear to remark, that if this objection be well founded, it is at once clearly a full and ready answer to a demand which is solely and originally founded on the eleventh article of that very treaty. Yet in all the pre- vious discussion, and among the many and various arguments which have been urged against the validity of this claim since the year 1839, both in the island of Porto Rico, where it was examined by the judicial tribunals, and at this court, where it has been the subject of so much correspondence, this objection, so obvious to your excellency, and which must have been so to others, if true, has never been once sug- gested till urged in the note of your excellency of the 25th ultimo. CASE OF THE BLACK WARRIOR, ETC 225 In the full examination given to the case by the Marquis of Pidal, so generally known for his acuteness as a jurist and his ability as a states- man, this plain objection escaped his astute and profound research, and his arguments were based on the proposition, that while the eleventh article of the treaty was indeed (as well as others) applicable to the colo- nies, the claim of the heirs of Harang did not come within its provisions. It would be difficult to find a single admission on the part of the United States that the principle now contended for is correct ; and equally diffi- cult, I think, to meet with a similar declaration on the part of her Majesty's government, until within a very recent period. On the con- trary, the correspondence between the two governments is full of admissions that the treaty is applicable to the Spanish colonies as well as the peninsula. It is not necessary to refer to these more specifically at this time. Such has hitherto been the understanding of both parties to the treaty. Under this construction American consuls have been admitted, shipwrecks provided for, inheritances allowed, judicial pro- ceedings regulated, and commercial intercourse permitted and conti oiled between the United States and these colonies. No " law of the Indies," then existing or subsequently enacted, could avoid and make null the stipulations of the treaty as to the rights therein secured to the citizens of the United States. As to the contracting parties themselves, such a compact is the supreme law, not to be abrogated by the separate legisla- tion of either, or without the consent of both. But I refrain from further observation on this grave subject, with the single remark, that if, indeed, this treaty be not applicable to the colonies of Spain, it is surely time, as indicated by Mr. Everett in the 'portion of a sentence which your ex- cellency quotes in his note of the 5th ultimo, to the Spanish minister at Washington, that it should be "reformed" as well for the continuance of the friendship and sentiments of harmony which now animate both governments, as for the best interests of their respective citizens and subjects. I avail myself of this occasion to renew to your excellency the assu- rance of my most distinguished consideration. Your excellency's obedient servant, D. M. BARRINGER. To his Excellency the Count of Alcoy, President of the Council and Minister of State. [Translation.] First Department of State, Palace, March 24, 1853. My Dear Sir : I have had the honor to receive the note of your ex- cellency of the 19th instant, relative to the claim of Mr. Harang, and there being no reasons alleged, nor arguments presented, which have not been answered in my previous notes in regard to said reclamation, I must confine myself to reasserting all that is set forth in them, in sup- port of the justice with which her Majesty's government thinks it has proceeded in this matter, 15 226 CASE OF THE BLACK WARRIOR, ETC I avail myself of this occasion to renew to you the assurances of my most distinguished consideration. T, K. Y. H. Your obedient servant, THE COUNT ALCOY, The Minister Plenipotentiary of the United States. Mr. Gallahcr to Mr. Forsyth. [No. 11.] Consulate of the IL S., Ponce, Porto Rico, November 23, 1838. Sir : I beg leave respectfully to call your attention to a claim made by the government of this island of fifteen per cent, upon the property of all persons, citizens of other countries than of Spain, who may wish to leave the island, and to carry away their property with them. This claim, although founded on the "real cedula" of August 10, 1815, is considered by the Americans and Frenchmen resident here as very oppressive, and as not treating them with the privileges which citizens of Spain enjoy in the United States and France. A demand of from $45,000 to $50,000, made by this government the past week on the property of five individuals, deposited in the hands of the French vice-consul in Ponce, to be paid within twenty-four hours r having been resisted by him, the decision of the legality of the demand has been referred to the action of the French and Spanish govern- ments. It has been thought by my countrymen here that the simultaneous action of the American government would have a highly beneficial ef- fect on the interests of American citizens residing at Porto Rico. I have the honor to be, with great respect, your obedient servant, J. C. GALLAHER. Hon. John Forsyth, Secretary of State, Washington. //, CASE OF THE SEAMEN BELONGING TO THE BRIG JASPER. Mr. Robertson to Mr. Marcy. [No. 36-3 Consulate of the United States, Havana, July 6, 185$. Sir : I have the honor to enclose you herewith a copy of a correspon- dence concerning three American sailors, who are now imprisoned in Havana. The three men are undoubtedly Americans, and make the following statement : "We sailed from New York on the 12th of last De- cember, in the American barque "Jasper," Captain Townsend, bound for Sierra Leone ; had on board rum, sugar, and other merchandise of lawful trade, as we. believed. We did not go to Sierra Leone, but into another port, calledi£lmina, in Africa, where part of the cargo was landed ', gM, ft totk+A fa n*fai*+i - S*$'*.i /'Wat. &**. CASE OF THE BLACK WARRIOR, ETC ** 227 then we proceeded to Cape Coast, where another part of the cargo was landed, and some othefcafgo taken in ; we then went to another port and landed what cargo we had on board, except some twenty or thirty casks of rum ; we then sailed for another place, where we were told by Captain Townsend that he had sold his ship. To our astonishment, about five minutes after arrival, we saw boats coming towards us with negroes ; we thought at first that they were coming to take the ship from us ; afterwards thought that they might be coming for purposes of trade, as we had still on board some twenty or thirty casks of rum, which were placed upon other casks, which, when taken in at the for- mer place, we had supposed to contain rum, but turned out to have nothing but water. We then discovered that we were in a ship en- gaged in the slave trade, and demanded to go ashore. Captain Town- send paid us three months' extra wages, saying that he had made a losing voyage ; told us that he could no longer protect us, and advised us to go back in the vessel as passengers, as we should either be killed by the natives or starved to death if we went ashore. We then had no other recourse but to remain on the ship, on which we did duty as sailors, and were very badly treated. A cargo of nearly 300 negroes was put on board — part of the negroes were on board before Captain Townsend had left the vessel to go ashore. The vessel then sailed for Cuba ; used no flag on the passage to Cuba, but a Spanish flag was made on the way ; and when we went into a place, the name of which we cannot recollect, where the slaves were landed and taken charge of by other parties, the Spanish flag was hoisted. After the cargo was landed the vessel put off and got aground, but was taken off. She soon after grounded again ; we suspect it was done purposely, but are not sure. We worked to get her off without success ; she was then burnt. We all went ashore. When there, the mate, a Spaniard, told us that he could do nothing for us but give us the long-boat, and told us to try and find our way. There was an Englishman, Radcliffe, in the party, who said that he intended to lay his case before the admiralty. The captain and officers were Spaniards ; there was one man that they used to call Loper, and another Dionisio, but we believe these were assumed names. W x e never heard the captain's name on board, but subsequently heard that it was Jose Cortes. We took the long-boat, intending to proceed to Key West, but afterwards determined to go to the nearest place where we could find an American consul. Being short of water and provisions, we put up at Cape Antonio ; while there, some people went and advised some troops stationed a short distance off, who came and arrested us. This was on the 5th of May. We were conveyed in our boat, guarded by soldiers, and de- livered to a Spanish schooner of war, which kept us in the stocks, after her commander had asked us several questions, several days, then sent us to Havana, where we were detained about eight days on board the ship that fires a gun every night at 8 o'clock. We were subsequently, that is, last Saturday, put into this jail. When we were taken on the schooner, knowing that the slave trade was contrary to law, being ig- norant of the Spanish laws, and being afraid that if we were discovered to have been engaged in that trade we should be in trouble, we evaded all the questions by saying that we had come from Jamaica." 228 CASE OF THE BLACK WARRIOR, ETC The above is an outline of their statement, collected through the bars of the prison, and there may be some errors and omissions, but I be- lieve I have given a full statement. Their declarations will be impor- tant, so far as Captain Townsend and other parties in the United States are concerned. From my conversations with the seamen, I entertain no doubt of their innocence. At the same time I feel apprehensive that there will be great delay in granting my request, if granted at all. Should this prove to be the case, and as the men complain of most brutal treatment, and are confined in a room with some thirty or forty criminals, I must request the favor of specific instructions on this sub- ject. In the mean time I shall urge the permission to take their decla- rations ; and, if I find them innocent, and the declarations important, shall then urge their immediate delivery to me, to be sent to the author- ities of the United States. As the vessel that has been engaged in the slave trade is the barque " Jasper," which was detained here for a long time by Judge Sharkey, I beg leave to refer to his communication to the department of July 7, 1852, numbered 9. I have the honor to be, with great respect, your obedient servant, WM. H. ROBERTSON, Vice-consul, in charge of the Consulate. Hon. Wm. L. Marcy, Secretary of State. / Sir : There are three of us, Americans, that were picked up at Cape Antonio on the 5th of May last, and since that time have been confined, and are now lying in the Havana prison. We ask of you, sir, if you would favor us with an interview. We wish to state to you our case as it was, which is very plain, and can be spoken in a few words. Yours, respectfully, WILLIAM FREEBURN, WILLIAM ATKINS, HARVEY PARKS. Consulate of the United States, Havana, July 5, 1853. Most Excellent Sir : On the afternoon of the day before yesterday I received a communication from William Atkins, William Freeburn, and Harvey Parks, three American seamen now in the royal jail of this city, requesting me to call on them at the jail, and hear their statement of the circumstances under which they have been imprisoned, and also the circumstances that led to it. I have repaired to the prison at their request, and learned sufficient from them to make it important that I should take their declarations at the office of this consulate ; and for this purpose I have to request the favor of your excellency to permit these three men to come to my office, to be examined by me. This consulate has received two communications in regard to these men from his excellency the commander-in-chief of her Catholic Ma- CASE OF THE BLACK WARRIOR, ETC. 229 jesty's naval forces, &c, at Havana ; one, dated 18th of May, inform- ing my predecessor, Mr. Sharkey, of their arrest at Cape San Antonio, of their having been delivered to her Majesty's schooner " Habenera," of their statements on board of that vessel, and of his excellency's having given orders for their being brought to this port, which determination of his excellency, the consul, Mr. Sharkey, deemed the best and most proper course, and so wrote to his excellency, with some other remarks. The other communication is of the 27th of June last, transmitting to me a copy of what the commanding officer of the " Habanera" wrote to his excellency he had ascertained about these men ; and his excellency further informed me m his communication that the men had under that date been placed at your excellency's disposal. When I received this communication, it was at first my intention to have written to your ex- cellency upon the subject, but thought that it was proper to await your excellency's communication to me, as the men were accused, though vaguely, of having infringed the laws of Spain, and some time would be necessary to investigate the affair. Not having had the honor of re- ceiving any notice on the subject from your excellency, and the men having assured me that they are innocent of any intention to infringe either the laws of the United States or Spain, I feel it a duty to obtain as soon as possible all the reliable aud trustworthy information that may lead to their being released, if innocent as they say they are, from their painful situation, which is made more so by being placed (as they are in the prison) in company with men whom they naturally dislike, and who from prejudices or other causes have contributed to make their life disagreeable. I have the honor to be, with great respect, your excellency's most ^obedient servant, WM. H. ROBERTSON. Commercial Agent in charge of the Consulate of the United States. His Excellency Sr. Don Valentin Canedo, Governor and Captain General of the Island of Cuba, Mr. Robertson to Mr. Marc%. £No. 41.] Consulate of the United States, Havana, My 11, 1853. Sir : I beg leave to call your attention to the annexed copy of a communication that I received yesterday morning from the Captain •General, in reply to mine of the 5th, in relation to the three American seamen now in prison, of whom I treated m my letter to you of the 6th instant, numbered 36. You will perceive that the Captain General expresses a regret that be cannot accede to my wishes, as the affair being one concerning the landing on this island of negroes from Africa, in a vessel which was set fire to after having -effected the landing, and the men in question baving formed a part of her crew, the investigation of it belongs to the jeal audiencia pretorial (superior court of judicature,) and the Captain 230 CASE OF THE BLACK WARRIOR, ETC General asserts that he has not the power to intermeddle in affairs of that nature. He also tells me that he has transmitted my communica- tion to that court. In the mean time the men remain in prison, but the Captain General having stated that the affair is undergoing examina- tion before the proper court, and as I am recognised as a mere commer- cial agent, I have no authority to push the matter, unless positive in- structions reach me from the State Department. I again beg of you to transmit them as soon as possible. I have the honor to be, sir, very respectfully, your obedient servant, W. H. ROBERTSON, Vice-consul, in charge of the consulate. Hon. Wm. L. Marcy, Secretary of State, Washington. [Translation.] [l. s.] ALWAYS FAITHFUL ISLAND OF CUBA. CAPTAIN GENERAL AND GOV- ERNMENT'S OFFICE, POLITICAL DEPARTMENT, SECTION FIFTH. I have received your communication of the 5th instant, and I regret that I cannot accede to your wishes, as it is not in my power to inter- fere with matters of which the royal pretorial audience has cognizance, and which belongs to its jurisdiction, in conformity with a very recent law concerning the suppression of the slave traffic, in regard to the legal proceedings which he understands to refer to the landing of ne- groes at Bailen, which have been imported from Africa in a vessel that was burnt, of the crew of which the sailors, William Atkins or Ackiam, William Freeburn or Firbourn, and Harvey Parks or Pencas, in whose behalf you are interesting yourself. Nevertheless, I have this day transmitted to said superior tribunal your communication aforesaid, to be disposed of as it may be thought proper, and this is the reply I have to make to you on the subject. God preserve you a thousand years. Havana, July 8, 1853. VALENTIN CANEDO. To the Commercial Agent of the United States. Mr. Robertson to Mr. Marcy. Consulate of the United States, Havana, .7% 13, 1853. Sir: This morning I received a visit from * * * who read me a letter, dated -on the 9th inst., in which the writer says there are still six of the crew on the Cortes key, of the bark Jasper, (Americans.) The writer intimates that he has had a conversation with them, and that they are almost in a state of desperation, and apprehensive that they CASE OF THE BLACK WARRIOR, ETC 231 are destined to be assassinated, and were beseeching assistance to be relieved. * * * regretted that there were no men of war in port, or he would send one down, and as soon as one came in he would des- patch her down there, and find them or their graves. On the receipt of this information I repaired to the prison, and found the three prisoners in the same den as before, and also ascertained that they had left on said key John William Leo, from Palmyra, New York, near Niagara Falls ; George Hunt, a colored man, from the State of Maine ; William Huzzy, or Huzzing, of Nantucket ; Charles Robinson, who reported himself from Canada; John Radcliffe, an Englishman, who had recently been discharged from a man of war; and William Hersey, of Yar- mouth, Nova Scotia. A Mr. John Brown went out as mate, but quar- relled with Captain Edward Townsend, and was discharged at Cape Coast. These, with the three prisoners, were all the crew that left New York. They tell me they were thirty-five days on board of the man of war schooner "Habanera," near Cape San Antonio; the day they came on board they requested permission to communicate with an American consul, but were denied the permission. They state, also, that they have recently been examined by the Spanish authorities, severely questioned and cross-questioned, and Atkins thinks they have put down in their declarations more than was related. They also say, that the Spanish captain, mate, supercargo, and one other, all went passengers in the Jasper from New York. •-«'*'•# likewise informed me, that he was aware that four different commissions have been sent down to the neighborhood where the Jasper landed her cargo, and that four different reports have been made that no such vessel has been on the coast ; at the same time he * # # * ]" s in possession of all the facts. You will perceive the dilemma in which these three prisoners are placed under such official reports. I have just been informed that the United States sloop of war Al- bany is corning into this port. Since the above was written I have been on board the Albany, and informed Capt. Gerry of the condition of the three men in prison, and of the circumstances that led to their imprisonment, &c. Capt. Gerry has promised me that he will call at my office to-morrow, examine the papers in relation to the subject, and then address the Captain General. 1 regret very much that I shall not have it in my power to communi- cate to you, by this mail, Captain Gerry's course, as the steamer Cher- okee will sail to-morrow morning at 8 o'clock ; but everything will be laid before you by the earliest opportunity. I have the honor to be, sir, with great respect, your obedient ser- vant, WM. H. ROBERTSON. Hon. Wm. L. Marcy, Secretary of State. Eight o'clock, P. M. At the moment of enclosing this communication, I have received a letter from the British consul general. 232 CASE OF THE BLACK WARRIOR, ETC Commander J. T. Gerry, U. S. N., to Mr. Dobbin. U. S. Ship Albany, Havana, July 15, 1853. Sir: Upon my arrival at St. Juan de Nicaragua, May 30th, I ad- dressed a hasty communication to the commander-in-chief of the home squadron, by the steamer Daniel Webster, then under way, but at my request remained until I had closed the letter-bag to be sent by her. Upon a further acquaintance with the authorities at Gre}'town, and agents of the transit company, all of whom made an early call upon me, I clearly saw the necessity of a mediator to bring the two parties to a mutual friendly intercourse, and better understanding of each other's rights and views of subjects in dispute, and expressed my readiness to intercede and bring about a better feeling, provided each party stated to me all grievances, and consented to be influenced by my advice and opinion. The result fully convinced me that both parties had acted under strongly excited feelings, and that the one was quite as much in fault as the other ; the inhabitants of Grey town certainly being entitled to more consideration than the transit company had extended to them, by whose invitation, and inducements held out to them, many had made large investments for accommodating the passengers of this company when the latter were unable to do so, and depended solely upon the conveniences to be found in Greytown. I am happy to say that the results of my investigations were attended with the most favorable consequences. On the 5th of May I sailed from St. Juan, leaving all parties ap- parently friends, and with a determination of settling every point of controversy between them in future by arbitration, and not by vio- lence. Shortly after my arrival the mayor informed me, that if I desired, a marine who had deserted from the Cyane to be appre- hended, he would order him in custody of an officer on board of my ship the following morning, which was promptly complied with as set forth. From St. Juan to a little past the meridian of Cartha- gena, eastward, I experienced very light airs, calms, strong counter currents, and off-shore squalls, by taking advantage of which we made this distance by the 17th, and then encountered the very strong winds which constantly blow along the whole extent of the coast be- tween Santa Martha and Carthagena during this season of the year, amounting to perfect gales, and obliging vessels to carry a heavy press of canvass to hold their own, and gain to windward ; I was six days making less than three degrees to the eastward, and unavoidably split five or six of my sails, the roping being found defective and actually rotten. We continued using every exertion to get to windward, but with very little success, until the 27th of May, when finding that we had only twenty-eight days of bread and board, and had no prospect of reaching La Guayra in less than three, and probably five weeks, I reluctantly gave up the idea, and proceeded directly to St. Jago de Cuba, the next port of my destination, where we arrived June 30th, my crew showing many indications of scurvy, and officers nearly worn down by the effects of this trying climate and deprivation of the requi- site refreshments. CASE OF THE BLACK WARRIOR, ETC 233 I ordered a supply of bread baked without delay, and fresh pro- visions for the crew, who also had a fine opportunity of supplying themselves with fruit, &c. On the evening of July 3d, I received on board sixteen hundred pounds of bread, and sailed at daylight on the 4th for this port. Only one case of scurvy made its appearance among my crew, which being quickly attended to was soon cured. I have been reducced very low in watch officers, having, after passed mid- shipman Seawell was detached by order of the commander-in-chief of the Home Squadron just before I sailed, only two watch lieutenants and the master ; and, on one occasion, all three of my lieutenants, the sur- geon and a midshipman, who had been keeping day watch in charge of the deck, upon the sick report. We arrived here on the 13th instant, saluted the national flag and admiral as usual, and yesterday paid all official visits prior to opening a correspondence with the Captain General relating to the confinement of three American seamen, the particulars of which I herewith enclose. The order of June 9th, from Commodore Newton, was delivered to me by the vice consul — the consul being absent in the United States. The former consul, before his successor relieved him, had trans- mitted to the State Department all the facts in relation to the " Schooner Manchester " which had come to his knowledge, but did not corrobo- rate the statement made by her captain and mate, and put a different construction upon the whole matter. The consular records were sub- mitted to my inspection, and from the perusal of all the correspondence upon this subject, and communications to the State Department, was satisfied that further investigation by me was unnecessary. Very respectfully, 1 have the honor to be, sir, your obedient servant, JAMES T. GERRY, Commander, Commanding U. S. Ship Albany. Hon. Jas. C. Dobbin, Secretary of the Navy, Washington, D. C. United States Ship Albany, Havana, My 18, 1853. Most excellent Sir : The commercial agent in charge of the con- sulate of the United States in this city has read to me the contents of the communication that your excellency addressed him on the 16th instant, in reply to my official letter to your excellency of the previous day. I regret very much that your excellency did not think proper to address your reply to me direct, and also that the request made by me has not been acceded to by your excellency. I am aware that the said commercial agent has made the request of your excellency to be permitted to take the depositions of the American seamen, Harvey Parks, William Freeburn, and William Atkins, pris- oners in the royal jail, under accusation of having infringed the laws of Spain, which request was refused by your excellency because they had been placed in the hands of the superior court for trial ; still it becomes my duty to urge upon the consideration of your excellency the importance of that request being granted, to promote the ends of justice in my own country, which, by delay, may be defeated. I 234 CASE OF THE BLACK WARRIOR, ETC. * would also state, that I cannot perceive how the taking of such deposi- tions can interfere with the proceedings of the superior court in the in- vestigation of their case. I have the honor to be, very respectfully, your excellency's obedient servant, JAMES T. GERRY, Commander U. S. Navy, commanding; U. S. ship Albany. His Excellency The Governor and Captain General of Cuba, fyc. United States ship Albany, harbor of Havana, My 15, 1853. Most excellent Sir : The commercial agent in charge of the con- sulate of the United States for the port and city of Havana, has given me official information that three American seamen, named William Atkins, Harvey Parks, and William Freeburn, are now imprisoned in the public jail of this city, accused, though very vaguely, of having been a part of the crew of a vessel that imported and landed near Bailen, in this island, a cargo of negroes from Africa. Upon receipt of that information I called at the jail, saw the men, questioned and cross-questioned them in regard to their places of nativity, and made them relate to me all of the circumstances that led to their imprison- ment. The result of my inquiries has been, that I have become per- ; fectly convinced that they are native-born American citizens ; that they are entirely innocent of any intention of infringing either the laws 1 of the United States or of Spain ; and that those who are in reality the guilty parties are somewhere else. For my part, I entertain no doubt that some of the parties who got up the expedition to go for the cargo of Africans, and who deceived the unfortunate men now imprisoned, making them believe that they were going upon a lawful voyage, are now in the United States. It is therefore of the utmost importance that these parties be tried, convicted, and punished for their nefarious and disgraceful proceedings. To secure their conviction, it will be necessary to produce in court the witnesses that can, under oath, give clear and succinct statements of all the circumstances connected with the case. The men now in the prison of Havana, and their shipmates, if to be found, are the very witnesses that would be required. I feel it a duty, therefore, to express to your excellency my opinion of the innocence of the seamen Atkins, Parks, and Freeburn, and to request that your ex- cellency will order that they be delivered to me, for the purpose of placing them at the disposal of my government. I have also been in- formed by the above-mentioned men, and from other sources entitled to full credence, that the rest of the crew, six men, three of whom are said to be Americans, are still remaining upon Cayo Cortes, in the En- seneda de Cortes, on the south side of Cuba. As they are within the jurisdiction of her Catholic Majesty's dominions, it is expected, and I very respectfully request your excellency, that prompt measures be taken by your excellency's orders to insure their safety, for it is under- CASE OF THE BLACK WARRIOR, ETC 235 stood that they are in a perilous situation. An early reply to this com- munication is respectfully requested. I have the honor to be, with much respect, your excellency's* obe- dient servant, JAMES T. GERRY, Commander U. S. Navy, Commanding U. S. ship Albany. His Excellency The Governor and Captan General of Cuba, &fc. Consulate of the United States, Havana, July 14, 1853. Sir : I beg leave to inform you that there are, at this moment, con- fined in the royal prison in this city three American seamen — named William Freeburn, Wm. Atkins, and Harvey Parks — who shipped on board the^Larque Jasper, E. Townsend master, in December last, at New York, bound to Sierra Leone, for which place the vessel was cleared. These men state that they never went to Sierra Leone, but to a port in I Africa called Elmila, where they discharged some cargo; thence to/* 1 ** another port called Cape Coast, where the mate, whose name was John Brown, quarrelled with the captain and was discharged ; from Cape Coast they went to another place, and thence to another, where, soon after they came to anchor, there appeared sundry boats filled with negroes, which they at first feared were coming to attack them, but soon after found they were slaves to be received on board, when Capt. Townsend called the crew and informed them that he had sold his vessel, and was about to deliver her over to the Spanish authorities ; that he had made a losing voyage, but that he was willing to advance them three months' wages, as his part of the voyage was ended, and he ad- vised them to return in the vessel ; that if they went on shore they would either starve or be assassinated. They, therefore, had no other alternative left, and remained on board with the rest of the crew. ^ John William Lee, of Palmyra, New York ; George Hunt, a colored man, from the State of Maine; William Huzzy, of Nantucket; Charles Robinson, of Canada; John RadclifTe, of England, and Wm. Hersey, of Yarmouth, Nova Scotia — these formed the original crew from New York, and the same that brought her to the island. Captain Townsend, they say, left the vessel after a part of the ne- groes had been taken on board. The Spanish captain, mate, supercargo, and one other, w T ent as passengers in the Jasper from New York. On their arrival on the coast of Cuba, the slaves were landed at a spot near Bailen, as J have ascertained from other sources ; the barque got aground, or, as the men suspect, was put aground purposely, on the Punta de la Liana,' or Illana, and there was burnt. The whole crew went ashore ; the three men bow in prison took a boat and en- deavored, they state, to reach some point where they could find an American consul ; but, being without water and provisions, they stopped at Cape San Antonio to procure them. Some of the inhabitants there reported them to the guard of soldiers stationed near there, who immediately arrested them, and from thence they were conveyed 236 CASE OF THE BLACK WARRIOR, ETC. on board the Spanish war schooner " Habanera," on board of which they were put in the stocks, and kept thirty-five days ; from thence they were transferred to this port on board the Admiral's ship, where they were eight days, and afterwards sent to the *royal prison, where they now remain confined with criminals, and they complain of having been frequently maltreated. On the first notice of their situation, and examining into it myself, I became satisfied that they were innocent, and that it was important for our government to have their depositions. Whereupon I addressed his excellency, the Captain General, asking permission to take the deposition of these men at my office, under the charge of an officer. To this application his excellency replies v/" that he regrets that it is not in his power, as he has turned them over to the superior royal court as parties who have been engaged in the slave trade, contrary to the laws of Spain. Copies of my communi- cation and his excellency's reply have been transmitted to the Depart- ments of State for specific instructions on the subject. It seems, from information that I have received, that the government here have sent down to the neighborhood where the slaves were landed several commissions, and the reports returned are that no such vessel had been on the coast; thus, no doubt, contradicting the statements of these three men on their examination by the government officials. I have also information that the rest of the crew are now secreted on the Cortes key, in the "Ensenada de Cortes," — three Americans and three Englishmen ; that all are liable to be abandoned by the slave dealers and left to starve to death, or be made away withf by assassination or some other way. They are very apprehensive of this, and by the last accounts were in a complete state of desperation. They were alive on the 6th instant. You have now the subject before you ; all the records of the office have been submitted to you, and will be open to you at all times when- ever it is required. I again repeat, that it is important for our govern- ment to be in possession of the declarations of these three men under oath, and equally important that they be released from their painful situation. Also, that some steps be taken to rescue the other six men from the perilous situation in which they are placed. I am, sir, very respectfully and truly, your most obedient servant, WM. H. ROBERTSON, Vice-Consul in charge of the Consulate of the United States at Havana. To James T. Gerry, Esq., Commanding United States ship " Albany," Harbor of Havana. [Translation.] [L. S.] ALWAYS FAITHFUL ISLAND OF CUBA.— GOVERNMENT AND CAPTAIN GENERAL, POLITICAL SECRE- TARY'S OFFICE, SECTION FIFTH. I have received your lordship's official letter of yestersday, with the letter which the commander of the United States sloop of war CASE OP THE BLACK WARRIOR, ETC. 237 " Albany" addresses me. I have noted the contents of both communi- cations, and in consequence you will state to the said commander in answer that, as I said to your lordship on the 8th instant, it is absolutely impossible for me to interfere in this affair, for it has been submitted to the "real audiencia pretorial," (supreme court of judicature,) to whom appertains the investigation of the same, conformably to the penal law relative to the reprobated African trade, as the individuals, William Freeburn, William Atkins, and Harvey Parks, to whom the said commander of the Albany refers, belong to the crew of a slaver vessel that landed at Bailen the Bozal negroes that she conveyed, and was subsequently burnt in the Ensenada de Cortes. The cause is actively carried .on by the said superior court, and immediately that it shall communicate to me its decision,. I will transmit it to you, as well as that respecting the six individuals who are said to be at Cayo Cortes, for whose deliverance (extraction) from that place I have given the proper orders. God preseve your lordship many years. Havana, July 16, 1853. VALENTIN CANEDO. To the Commercial Agent of the United States. Mr. Marcy to Mr. O' 'Conor. Department of State, Washington, My 19, 1853. Sir : I transmit herewith a copy of two dispatches received from the late consul, and the present acting consul* of the United States at Havana, which tend to implicate one or more persons in New York in the fitting out of a vessel designed to engage in the slave trade, and which actually, after a real or nominal transfer to other parties, suc- ceeded in landing a cargo of slaves on the island of Cuba. I will thank you to give the subject, embraced in the accompanying communica- tions, your immediate attention, with a view to bring the guilty parties to justice. An effort will be made to procure the liberation from prison of the three American sailors referred to in Mr. Robertson's letter,t in which case they will be sent to New York, to be used as witnesses for the United States. I am, sir, respectfully, your obedient servant, W. L. MARCY. Charles O'Conor, Esq., U. S. District Attorney, New York. * See Mr. Robertson's letter of July 13. f The letter here referred to is Mr, Robertson's, dated July 6, 1852. 238 CASE OF THE BLACK WARRIOR, ETC. [No. 9.] Consulate of the United States, Havana, My 7, 1852. Sir : The object of this communication is to lay before you a diffi- culty which has occurred at this consulate with regard to the "barque "Jasper." This vessel obtained a register in New York, which was granted in the name of * * * *, as owner and master. She ar- rived in this port on the 17th of December, 1851, from the coast of Africa, with a partial lading of palm oil, ivory, &c. Much was then said and surmised as to the subject of her cruise on that coast. The crew, I believe, claimed extra wages in consequence of her having gone there to engage in the slave trade, though this is not so material to my present purpose. On the 9th of January last, *. * * * left the vessel, first having appointed his mate to be master, and went to New York, and has not been at this port since. A Spaniard of this city, named * * * *, who is quite celebrated as having been long engaged in buying slaves from Africa, employed a workman to make extensive repairs on the vessel, he being the responsible party. He did not profess to act as agent for * * * *, nor was he con- signee, but, as the workman says, (whose testimony I have taken,) seemed to be the sole owner. The repairs were made, the vessel com- pletely coppered, &c, amounting to about four thousand dollars. In the mean time, * * * *, who had been appointed master by * * * *, also left the vessel, and no one seemed to have charge of her but the Spaniard. He employed another master, and also seamen, and super- intended the repairs. The new master (whose testimony I have also taken) says he knew no other owner but * * * *, who acted in all respects as owner by paying out money for necessary purposes, and that even the consignee, * * * *, would pay nothing except on the order of****. *### was j n ^g habit of visiting the ship almost daily to superintend the repairs ; that he purchased provi- sions for the crew ; paid the seamen their wages, &c. In this way months passed and nothing was heard of Captain * * * * or his mate. Some time in May I received a letter from a Mr. * * * *, of New York, by which he informed me that he was * * * * surety in his bond given when the register was obtained, and as * * * * had ceased to be onwner, he desired me to retain the register. About the same time Captain * * * * himself wrote to a citizen of this place to the same effect, with a like request. The ship was by this time getting ready for sea, but I had intimated to the acting master that I was not satisfied as to the ownership. Freights, however, were being engaged by this same Spaniard for the coast of Africa. He put seventy or eighty barrels of beef on board, and a corresponding quantity of bread ; and, finally, application was made to know whether I would give the ship her papers. I had become so well satisfied that she was Spanish property in reality, although nominally under an American owner, that I did not* hesitate to refuse to give her the register. This brought up the Spaniard, * * * *, who seemed to be in greet dis- tress, and stated that he had made a contract for freights, and would lose greatly unless I would permit the vessel to go to sea. He came several times, and his great solicitude was really positive proof of his ownership. Finally, he produced the contract under which * * * * CASE OF THE BLACK WARRIOR, ETC 239 had been acting as owner, from which it appeared that the money to purchase the ship was furnished by a Spaniard, who probably was only a nominal party, * * * * being the real one. This instru- ment professed to be a mortgage, but it was so drawn as to look like something more than a mortgage, and to leave the impression that the Spaniard was the true owner, even before condition forfeited. The money was to have been paid by * * * * in September, 18-50, or 1851. The time of payment had elapsed, and * * * * seemed to have abandoned the ship. I still refused to let the register go. * * * * said he could not get her under the Spanish flag as she was too small, the law requiring foreign built ships to be four hundred tons. In this dilemma * * * * started to New York to see * * * *, and, a few days ago, a * * * * presented himself with a bill of sale from * * * *, and demanded the ship's papers. He also brought letters from * * * * and * * * *, by which I was informed of the conveyance, and also that their bond had been cancelled. My reply was, that I had before refused to let the ship go because * * * * was not owner, and if this was so, he could of course make no title, and unless he could produce the mortgage extinguished, the ship could not be permitted to sail as an American vessel. I have given but a gen- j eral outline of the evidence, which might be filled out by many other circumstances. The propositions seem to be clear under the laws of the United States : First, that a vessel cannot be American if owned in whole or in part by a foreigner, either directly or in trust, often express or secret. Second, that an American built vessel, if she has ever been once owned by a foreigner, can never become American afterwards. I would respectfully refer you to the 1st, 2d, 7th, 16th, and 17th sections of the act of the 31st of December, 1792; the additional act of the 27th of June, 1797 ; and the act of 27th / March, 1810. * * * * I believe has laid his grievances before the Secretary of the Treasury, and has applied for relief. I will also forward a copy of this dispatch to the Secretary of the Treasury. I should remark, also, that I have no doubt that * * * * is not the bona fide ower. The conveyance was made to him merely for the purpose of getting the ship out of the harbor. I must adhere to my determination, unless instructed to the contrary. I have the honor to be, sir, your obedient servant, - W. L. SHARKEY, Hon. Daniel Webster, Secretary of Stale of the United States. Mr. Ma?ry to Mr. Robertson. Department of State, Washington, July 20, 1853. Sir : Your several dispatches, from No. 34 to No. 41, inclusive, have been received. In respect to the three American sailors, William Atkins, William 240 CASE OF THE BLACK WARRIOR, ETC Freeburn, and Harvey Parks, now awaiting their trial in Havana, charged with having been engaged in the slave trade, you are informed that the department entirely approves the course which you have taken. You will spare no judicious efforts to effect their liberation, and, should you not be successful in this, to secure them a fair trial. You will perceive by the enclosed copy of a letter addressed by this department to the United States district attorney in New York, that he has been instructed to prosecute the parties alleged to have been interested in the fitting out of the "Jasper" for the purpose of en- gaging in the slave trade. It is considered very important that the three American sailors, now confined in Havana, should be sent to New York, to be used by the government as witnesses for the prosecu- tion. Although there is no doubt that these sailors were on board the "Jasper," yet it is far more important for the ends of justice to bring the principals engaged in this atrocious business to punishment, than those who acted only in a subordinate capacity, and who, it may reasonably be supposed, knew nothing of the intended object of the ■voyage until the choice was given them either to be left destitute on the African coast, exposed to the savage ferocity of the natives, or re- turn to America as passengers in the slave ship. You will make known to the Captain General the steps which have been taken by this government for the prosecution, in this country, of those concerned in the transaction, and it is not doubted that he will immediately perceive the expediency of using his influence with the judicial tribunals to effect the liberation of the imprisoned seamen for the object above-mentioned. In which event you will place them on board of one of the steamers bound to New York, with orders that they be delivered to the marshal of the United States on their arrival in that city. I am, sir, respectfully, your obedient servant, W. L. MARCY. W. H. Robertson, Esq., In charge of the V. S. Consulate at Havana, island of Cuba. Mr. Robertson to Mr. Marcy. [No. 44.] Consulate of the United States, Havana, July 21, 1853. Sir t I beg leave to lay before you a copy of an official letter re- ceived from the Governor and Captain General of Cuba, in reply to one addressed him by Commander Gerry, of the U. S. ship "Albany." Commander Gerry, on being officially informed by me that the three American seamen, Harvey Parks, William Atkins, and William Free- burn, were imprisoned, called at this office, and examined all the pa- pers relating to their case. Subsequently he called at the prison, ques- tioned and cross-questioned the men, and, as the result of his exami- nation, he formed the opinion that the men were American citizens, CASE OF THE BLACK WARRIOR, ETC. 241 and that they were innocent of any intention of infringing either the laws of the United States or of Spain ; that the guilty parties were somewhere else — some of them probably in the United States — and he thought that it would be important to have their testimony taken in the United States. He therefore respectfully informed the Captain Gen- eral of his opinion in the matter, and suggested that the men should be delivered to him for the purpose of placing them at the disposal of the government of the United States. Captain Gerry also notified the Captain General that the shipmates of these men (six in number) were secreted on the Cortes key, and requested that prompt measures should be taken to relieve them from their painful situation. You will perceive that the Captain General does not accede to the request of Captain Gerry for the delivery of the three men now here, and informs me that he had already given the proper orders for the others being taken off the Key Cortes. He likewise promises to com- municate to me the decision of the court before which the case is pend- ing, immediately that the court notify him of the same. The six men who were on the Cortes were subsequently removed to another key, as I am informed; they were alive on the 7th instant, and provisions were conveyed to them in a canoe every two days. Their names are John Wm. Leo, of Palmyra, New York ; George Hunt, a colored man, from Maine ; Wm. Huzzy, of Nantucket ; Charles Rob- inson, of Canada ; John RadclifFe, of England ; and Wm. Hersey, of Yarmouth, Nova Scotia. Captain Gerry on the 18th instant addressed another letter to the Captain General, requesting permission for me to take the depositions of the men here. No reply has been received, and Captain Gerry sailed this morning, intending to cruise outside of the port for the benefit of the health of his crew, there being considerable sickness in the city at present. I have received the circulars you sent me of changes in the lights on the coasts of Norway and Spain. I have the honor to be, with great respect, your obedient servant, WM. H. ROBERTSON, Vice-consul in charge of the U. S. Consulate, Hon. Wm. L. Marcy, Secretary of State of the United States of America. [Translation.] [l. s.] EVER FAITHFUL ISLAND OF CUBA.— GOVERNMENT AND CAPTAIN GENERAL'S OFFICE, POLITICAL DEPARTMENT, SECTION FIFTH. I have received your communication of yesterday, together with the letter addressed to me by the commander of the U. S. ship "Albany." I have carefully perused both documents, and you will accordingly say to the commander aforesaid, in reply, that, as I told you on the 8th instant, it is utterly impossible for me to interfere in this matter, seeing that it is before the superior court of judicature, which has jurisdiction 16 242 CASE OF THE BLACK WARRIOR, ETC. over it, according to the penal law relative to the prohibited African trade, since the individuals (William Freeburn, William Atkins, and Harvey Parks) to whom the commander of the "Albany" alludes, be- long to the crew of a slaver which landed her cargo of negroes at Bailer's, and was afterwards burnt at Key Cortes. The trial is progressing rapidly before said tribunal, and as soon as the latter shall have communicated its decision to me on the subject I will forward the same to you, together with the decision concerning the six individuals who are said to be at Key Cortes, whose removal from said point I have given proper orders for. May God preserve you many years. Havana, July 16, 1853. VALENTIN CANEDO. The Commercial Agent of the United States. Mr. Robertson to Mr. Marcy. [No. 45.] Consulate of the United States, Havana, July 21, 1853, 6 o'clock p. m. Sir : As I was about enclosing my other communication of this date, No. 44, an orderly of the Captain General handed me a communication from that authority, enclosing a copy of a report sent to him by the chief justice of the superior court of judicature of the island. I hasten to transmit to you copies both of the Captain General's letter and the chief justice's report. You will see that it is now entirely out of my power to do any more for the unfortunate men in whose favor the correspondence has taken place, until I am favored with specific instructions from you. I deeply regret that such is the case, for I really believe these men to be innocent. I have the honor to be, with great respect, your most obedient WM. H. ROBERTSON, Vice-consul, in charge of the consulate, Hon. Wm. L. Marcy, Secretary of State, U. S, [Translation.] EVER FAITHFUL ISLAND 0? CUBA.-GOVERNMENT AND CAPTAIN GENERAL'S OFFICE, POLITICAL DEPARTMENT, SECTION FIFTH. I have received your communication of the 18th instant, enclosing another from the commander of the ship-of-war "Albany,"' both relating to the three sailors who are in prison in consequence of their having formed part of the crew of a vessel which brought and landed a cargo of negroes on the southern coast of this island, whose trial has been going on before the supreme court of judicature. In reply I enclose to you a copy of a communication which said supreme tribunal has ad- CASE OF THE BLACK WARRIOR, ETC. 243 dressed me on the subject, by which you will perceive that your object of taking the depositions of the individuals aforesaid is not attain- able, which is perfectly in accordance with the regium exequator that is issued to consuls, according to which they cannot exercise any act of authority whatever. Nor is it possible for me to enter directly into an understanding upon any official matters with the commandant of said ship " Albany," the laws of the kingdom being opposed to such a course; and you will say so to him, with the assurance that my consideration for him, personally, must not be understood as being lessened, in any respect, on this ac- count. With regard to the sum of money which you assert to have been de- posited by the sailors aforesaid with the keeper of the prison, I will order the latter to deliver the above-mentioned sum into your hands, if agreeable to the sailors aforesaid ; and should this sum not be sufficient for the purchase of the clothes which you desire to effect, this gov- ernment will facilitate the obtaining of the necessary means as a special favor. God preserve you many years. Havana, July 20, 1853. VALENTIN CANEDO. To the Commercial Agent in charge of the U. S. Consulate. Copy of the communication addressed by the Chief Justice of the Supreme Court to the Captain General. [Translation.] Supreme Court of Havana. Most excellent Sir : Having made the attorney general (fiscal) acquainted with your excellency's communication of the 9th instant, containing what was written to you by the commercial agent of the United States, who wishes to receive the depositions of the three Americans lately arrested, in consequence of the suit which has been instituted relative to the landing of a cargo of imported negroes (negros Bozales) at Bailen, his lordship represented, and the first chamber of this tribunal provided, as follows : " Most powerful Sir : The fiscal says that the President has for- warded to your highness a communication which has been addressed to him by the United States consul, who wishes to receive the deposi- tions of the three American sailors arrested at his consulate, in conse- quence of this suit, stating that the place where they have been con- fined is disagreeable to them on account of the people by whom they are surrounded. These sailors having been arrested and tried for hav- ing formed part of the crew of a vessel that brought and landed on this island a cargo of negroes, imported from the coast of Africa, in viola- tion of treaties and of the penal law which has been promulgated for the suppression of that inhuman traffic, are subject to the authorities and to the laws of Spain, and must be judged and sentenced by the former, and in conformity with the latter. The request, therefore, of 244 CASE OF THE BLACK WARRIOR, ETC. the United States consul to have these men taken to his house, for the purpose of receiving their depositions, does not appear reasonable. It is natural that the place where they have been confined should be dis- agreeable to them, as the consul remarks, because a prison cannot be a desirable residence for any one, either here or elsewhere ; but the sailors aforesaid have been treated in the same manner as those of her Majesty's subjects who render themselves liable to imprisonment ; that is to say, they have been confined in the public jail ; and when they have once become amenable to the Spanish authorities and to the Spanish laws, no other mode of proceeding could be adopted in regard to them, nor have they a right to ask to be treated differently than her Majesty's subjects are treated under similar circumstances. Havana, July 17, 1853." Agreeably to the representation of the fiscal, in the first part of his foregoing answer, let a reply be sent to the President enclosing said answer, and this decision. Signature, first chamber, Messrs. Buelta, Mojanietta, Antonio Ma. del Rio. And I transmit the same to your excellency, and for the subserviency of the proper object. God preserve your excellency many years. July 19, 1853. The Most Excellent Seflor Pedro Pizarro. The Most Excellent President Governor Captain General. True copy: LORENZO DE BUSTO. Mr. Cowperlhivak to Mr. Marcy. Philadelphia, July 21, 1853. Sir: The unhappy parents of William Freeburn, one of the three unfortunate sailors now confined in prison at Havana, under suspicion of being engaged in the slave, trade, have requested me to write a few lines to you in their behalf, bespeaking your friendly services in aid of their poor son. I willingly comply with this request, beeause I am sure that the vindication of the rights of an American citizen, however humble, will find no more able advocate than yourself, nor one more ready to defend them. I am satisfied, sir, from my knowledge of the antecedents of this young man, that the statements contained in the letter of himself and colleagues, addressed to you from the prison, un- der the date of July 8th inst., and published in the New York Herald of the 18th inst., may be fully relied upon. The parents are in very humble circumstances, but are honest and of good character, and have endeavored to bring up their children respectably. The father has for twenty years past been employed by the superintendent of our Fair- mount water-works as a laborer, and the mother, who is more particu- larly known to me as one of the directors of the public schools, has had the care of one of our large school-houses for many years. Their un- fortunate son, who learned the trade of house carpenter, left this city for New York in November last, in quest of work, which not readily CASE OF THE BLACK WARRIOR, ETC 245 finding, was induced to ship as a hand on board the " Jasper," bound, as he supposed, on a fair and legitimate voyage to Sierra Leone, as is fully detailed in the letter already referred to. I will not trespass on your valuable time by further details, but will earnestly entreat your effective aid on behalf of this unfortunate youth, which I am sure will not be extended in vain, and which will not fail to be gratefully ac- knowledged by his afflicted parents ; and it would be a great source of satisfaction to myself, personally, to learn that there was a chance of his speedy restoration to his country and to his family. I have the honor to be, with great respect, your obedient servant, JOSEPH COWPERTHWAIT. Hon. William L. Marcy, Secretary of State, Washington. Mr. Marcy to Mr. Dobbin. Department of State, Washington, July 22, 1853. Sir : I have the honor to enclose herewith a copy of a letter received this morning from J. Cowperthwait, esq., of Philadelphia, and also several extracts from despatches received from W. H. Robertson, esq., the acting consul of the United States at Havana, in reference to cer- tain American seamen, a part of whom appear to be in distress, though at liberty near the Cortes key, and others are in prison, charged with having been engaged in the slave trade. I beg leave respectfully to suggest that the presence of a United States vessel would materially assist the acting consul in his efforts to effect the liberation of these unfortunate seamen. I am, sir, respectfully, your obedient servant, W. L. MARCY. Hon. James C. Dobbin, Secretary of the Navy. Mr. Dobbin to Mr. Marcy. Navy Department, July 25, 1853. Sir : I have the honor to acknowledge the receipt of yours of the 22d instant, with its enclosures, in relation to the condition of certain American seamen, late of bark Jasper. Agreeably to your suggestion, directions will be given to the com- mander-in-chief of the Home Squadron to send a man-of-war, to assist the acting: consul at Havana in his efforts to effect the liberation of these seamen. I am, very respectfully, your obedient servant, J. C. DOBBIN. Hon. William L. Marcy, Secretary of State. 246 CASE OF THE BLACK WARRIOR, ETC. Mr. Bobbin to Mr. Marcy. Navy Department, July 28, 1853. Sir : I have the honor to transmit herewith, for your perusal, a letter received at this department from Commander Gerry, commanding the United States sloop-of-war Albany, dated at Havana, July 15, L853, by which it will be perceived that the instructions to the commanding officer of the Home Squadron, in relation to certain of the late crew of the Dark Jasper, have been anticipated by the action of Commander Gerry. I am, very respectfully, your obedient servant, J. C. DOBBIN. Hon. W. L. Marcy, Secretary of State. The Vice-consul in charge of the Consulate to Mr. Marcy. [Extract.] Consulate of the United States, Havana, July 28, 1853. Sir : I have this morning received from the prison the enclosed com- munication from one of the three American seamen. I shall repair to the prison to examine into the facts. * * * * Since the foregoing was written I have been to the prison, found Free burn in the hospital, quite sick with fever ; the other two in the situation which Atkins in his letter describes. With great respect, &c. The VICE CONSUL, in charge of the Consulate of the United States, Hon. W. L. Marcy, Secretary of Slate of the United States, Washington. Havana, July 26, 1853. Dear Sir : We should like very much to speak to you because we are very badly treated here, and hardly can stand it any longer with- out incurring the danger of losing our temper and committing some rash act, and thus bringing ourselves into still greater difficulties ; they treat us in fact worse than dogs ; we have to do nearly all the dirty work for the rest, and are robbed and insulted in every possible way. When we came here first we were asked to pay four dollars, or help to do the dirty work. Accordingly we wrote to the head jailor Don Pedro for the money, but he would not give it to us, and said that he had deliv- ered it into the hands of the government; we were in consequence obliged to do the work ; we never got any money until two days ago. Freeburn is at present in the hospital very bad with fever. Parks was there last week, and feels very sick still, but he would not stay CASE OF THE BLACK WARRIOR, ETC 247 there because they were starving him ; he felt so weak this morning that he was unable to do the work, and told them so when they wanted him to work; but instead of excusing him from the work, the man whom they call Cabo de Yambuja rushed at him, and struck him five or six times with the butt-end of a broom as hard as he could, and even drew a knife on him, which he dropped however. It is not permitted to have knives here, and we could complain of this to the head jailor, Don Pedro ; but if we did they would certainly stab us during the night. But if you would speak to Don Pedro, there might, perhaps, be effected a change for the better; you might insist on our not working any longer like slaves. Hoping to have soon the pleasure of seeing you, I remain, dear sir, your obedient servant, WILLIAM ATKINS. Mr. OP Conor to Mr. Marcy. Southern District of New York, V. S. District Attorney's Office, July 29, 1853. Sir : Your communication, accompanying copies of two dispatches received from the late consul and the present acting consul at Havana, has been received. v The department seems not to be aware that the bark Jasper was seized at this port on the 19th October, 1852, charged with sailing under a false register, she .belonging, as we supposed and asserted, basing our opinion upon information derived from * * to a Spaniard named * *, mentioned in Judge Sharkey's dispatch, while at the same time her papers bore the name of * * ; the bark was detained in custody for some time, but was at length bonded in the sum of ten thousand dollars, and afterwards, as I am informed at the custom-house, departed secretly without any clearance or papers. I had intended bringing on the case for trial at the last term of the court, but was prevented as well by the press of criminal business as by the absence of * * and * *, who are absent on a voyage to California, but are soon expected to return. In the mean time, I have been diligently seeking the parties interested in fitting out the vessel, and getting such information as may be desirable and necessary. * * has, as I have reason to believe, recently been here. If he is still in the city, or can be found, I will endeavor to procure sufficient evidence to justify the commissioner in issuing a warrant, and will then cause his immediate arrest. I would further respectfully suggest the impor- tance of procuring the release of the three sailors confined at Havana, at as early a day as possible. I have the honor to be, your very obedient servant, CHARLES G'CONOR, United States Attorney. Hon. William L. Marcy, Secretary of State, Washington. 248 CASE OF THE BLACK WARRIOR, ETC Mr. Mann, Acting Secretary, to Mr. O' Conor. Department of State, Washington, August 2, 1853. Sir : I have to acknowledge the receipt of your letter of the 29th ultimo, and to inform you that a copy of it has been sent to the acting consul of the United States, at Havana, with renewed instructions to send immediately to New York, in the event of their liberation, the three American seamen, lately belonging to theMbark " Jasper," to be used as witnesses on the trial there of the parties alleged to have been concerned in the slave trade. I am, sir, &c, A. DUDLEY MANN, Acting Secretary* Charles O'Conor, Esq., U. S. Attorney, New York. Mr. Robertson to Mr. Maraj. [Extract.] [No. 51. j Consulate of the United States, Havana, August 3, 1853. Sir : I had the honor to receive, on the 29th of July, yours of the 20th of said month, accompanying your instructions to the district attor- ney in New York ; and although the Captain General bad made known to me that he could not either permit me to take the depositions of the three seamen of the late bark Jasper, now in prison, or deliver them up, for the purpose of sending them to New York to be used there as witnesses for the prosecution of the parties that were concerned in the fitting out of the "Jasper" for the slave trade, I avail myself of the instructions contained in your dispatch to urge upon his excellency the expediency of their being delivered up, laying before him on the same day (29th July) your views and wishes on the subject. I have not yet been favored with a reply to my communication, but received a few minutes since an official letter from his excellency, dated on yesterday, a copy of which I enclose herewith. You will be able to form an opinion upon the contents of his excellency's letter, wherein I refer you to my communication of the 21st ultimo, No. 44, wherein I stated that the six men who had been on themey " Cortes" had been removed to another key; the name of this other key I believe is " Cayo Felipe." I obtained this information from * *, who had it from the same party that first communicated to him the circumstances con- nected with the landing of slaves by the "Jasper," the burning of this vessel, and the fact of the six men being secreted at " Cayo Cortes." I have seen both the reports to the said * *. The letter referred to by the Captain General as received from me, dated 15th July, merely enclosed a letter to him from Captain Gerry, CASE OF THE BLACK WARRIOR, ETC 249 of the Albany. It was this officer who notified the Captain General that the six men were secreted at " Cayo Cortes." The latter part of the Captain General's communication of the 2d instant I do not understand, for the " alcalde," or chief jailor delivered to me yesterday the money belonging to the seamen Freeburn, Parks, and Atkins ; the amount paid over were the same (with the difference of a dollars or so) as reported to me by the prisoners themselves. * * I have the honor to be, sir, your most obedient servant, WM. H. ROBERTSON, Vice-consul in charge of the Consulate. Hon. William L. Marcy, Secretary of State. [Translation.] [L. S.] EVER FAITHFUL ISLAND OF CUBA.— GOVERNMENT AND CAPTAIN GENERAL'S OFFICE, POLITICAL DEPARTMENT, SECTION FIFTH. On the 2d instant, I informed you of what the three North American sailors confined in jail had said to the alcalde of the same, concerning the twelve ounces which the latter has in his possession belonging to said individuals, who are waiting for the result of their trial in the royal pretorial court, in consequence of their having formed part of the crew of a slaver which was burnt after having discharged her freight of negroes, which she had brought from Africa, at Bailen. I accordingly make the same known to you, in reply to your com- munication of the 29th of July last, relative to the matter ; reiterating to you, moreover, that I regret not being able to comply with the re- quest with regard to the wishes expressed by the Secretary of State of your government, as mentioned by you in your communication afore- said, that the three sailors in question might be sent on to New York, because I am not at liberty to meddle with any of the proceedings ap- pertaining to the jurisdiction of the court aforesaid, before which I will, however, lay your letter for its decision, in order that I may, in due time, convey the same to you. May God preserve you many years. Havana, August 13, 1853. VALENTIN CANEDO. To the Commercial Agent in charge of the Consulate of the United. States. Mr. A. Dudley Mann, acting Secretary of State, to Mr. Robertson. [Extract.] Department of State, Washington, August 3, 1853. In the event of your being successful in effecting the liberation of the American sailors now confined in Havana, charged with having been 250 CASE OF THE BLACK WARRIOR, ETC. concerned in the slave trade, you will be pleased to cause them to be conveyed to New York, and surrendered to the marshal, for the pur- pose indicated in the letter of Mr. O'Conor, United States attorney. In case they should be brought to trial in Havana, you will urge upon the proper authorities the obvious propriety of using one or more of them as witnesses, chiefly for the purpose of showing that these men were ignorant of the object of the voyage of the " Jasper" to the coast of Africa till the transfer of the vessel took place ; that their remaining on board was a matter of necessity ; and, more especially, that the parties in Havana, alleged to have been principally instrumental in fitting out the "Jasper," may be brought to punishment. If there is a sincere desire to convict the slave dealers, this reason- able request cannot be refused. I am, sir, respectfully, your obedient servant, A. DUDLEY MANN, Acting Secretary. Mr. Robertson to Mr. Marcy. [Extract.] [No. 54.] Consulate of the United States, Havana, August 29, 1853. In my dispatch of August 3, No. 51, (which is in your possession,) I stated that I had not been favored by the Captain General with a reply to my communication to his excellency of the 29th July. His reply, dated on the 13th of August, reached me on the 16th — a copy of it I now lay before you. He reiterates his former assertions, to the / effect that he cannot interfere in the matter, and promises to lay my letter before the court, and to transmit to me the court's decision upon the same. Since then I have heard nothing from him. I have the honor, &c, W. H. ROBERTSON, Acting Consul. Mr. Robertson to Mr. Marcy. [No. 56.] Consulate of the United States, Havana, September 24, 1853. Sir: Referring to my last communication, dated 13th instant, No. 55, I beg leave to inform you that, on the 15th, I received an official letter from the Governor and Captain General of the island, notifying me that I could take the depositions of the three American seamen, (who have been in the jail of this city since the 2d of July, and de- tained by the authorities of the island since May,) in the presence of CASE OF THE BLACK WARRIOR, ETC. 251 one of the justices of the superior court, with the attendance of one of the government interpreters, on the 17th, at the hall of the said court. I therefore prepared beforehand a set of interrogatories to be pro- pounded to the prisoners, and presented myself in the court-room at the appointed day and hour. Then, outside of the room, I found the prisoners under charge (as customary here) of two soldiers, with mus- kets and bayonets fixed. The justice and interpreter were present. There was some conversation between myself and the judge, who thought that he was to receive the depositions. I made known to him that, if they were taken by any one but myself, they would be of no use in the United States. He then allowed me to proceed to question the first prisoner brought in, and, before I had got through, the judge assured me that the communication he had received was worded in such a manner that he did not feel confident that his course in allowing me to take the depositions would be approved of by the Captain Gen- eral ; and he proposed that I should finish examining the first witness, and then stop, until he could see the Captain General in the evening, and ascertain if no objection would be made to my course. To this proposition I assented. That was on Saturday. On Monday follow- ing, the judge informed me that the Captain General had given his assent to my continuing to take the depositions, as he had no desire to throw obstacles that would delay the ends of justice in the United States. I therefore received the two other depositions on Tuesday and Wednesday. I now have the honor to enclose you the whole proceedings. Many of the interrogatories (having been prepared beforehand) were neces- sarily superseded, and I fear the answers contain much irrelevant mat- ter ; but the subjects they were taken from being seamen, who are prone to give long stories, I was afraid that, if I omitted any part of their statements, something important might be accidentally left out. I have furnished the judge of the superior court here, at his request, a translated copy of the interrogatories and depositions. He, at first, thought it might be proper that he should subscribe his name to the papers ; but, at last, concluded, after consultation as I understand with his colleagues, that it was not necessary or important. I do not know yet when these unfortunate men will be released. Your obedient servant, WM. H. ROBERTSON, Hon. William L. Marcy, Secretary of Stale, Washington D. C. Acting Consul. Questions or interrogatories to be propounded by William H. Robert- son, acting consul of the United States of America at the city of Ha- vana, to William Atkins, William Freeburn, and Harvey C. Parks, seamen reporting themselves as Americans, who are at present de- tained in Havana by the authorities of Havana, charged with having formed part of the crew of the bark Jasper, which, it is said, landed a cargo of negroes from Africa at or near a place called Baylen, on 252 CASE OF THE BLACK WARRIOR, ETC. the south side of the island of Cuba, and that, after the landing was effected, the vessel was burnt. 1. What is your name, age, profession, or trade? Which is the place of your birth, and which of your residence ? When were you last at the place of your residence ? Give us the names of some re- spectable person or persons who know you, and can give information about your character and conduct, from his, her, or their own knowledge. 2. In what vessel did you come to the island of Cuba? Where and when did you join her, and in what capacity ? Tn what street and house were you living in New York when you shipped on the Jasper ? State the name or names of your landlord or landlords, landlady or land- ladies. State also the name or names of the shipping-master or ship- ping-masters that shipped you on the articles of the Jasper. Where did he or they live in New York ? Did you yourself subscribe your name to the articles ? Did you ascertain the conditions of your ship- ment, and what were they ; that is, to what port or ports was the ves- sel going ? Was she to come back to New York or any other part of the United States, or not ? Was any part of Cuba one of the places at which the vessel had to touch ? Was or were there any person or per- sons connected or concerned in the bark Jasper present at the time you entered your name on her articles ? If yea, give his or their names. State also the name of the captain that was in command of the Jasper when she sailed out of New York. Say if you were acquainted with Captain Townsend before you went on board the Jasper. What were your wages per month, or for the voyage? 3. Did you, or did you not, when you were going on board, some- where near the wharf, see one or more females in a carriage, who asked you certain question or questions ? What were the questions, your answers, and what did she or they finally say to you ? Did you see Captain Townsend speaking to the female or females aforesaid before you went on board ? Do you know the name or names of the female or females referred to above ? 4. Do you know Capt. Wade, who formerly commanded the Jasper? 5. Do you know a Spaniard by the name of Don Jose Mora ? If you do, when did you see him last ? Was he in any way, to your knowledge, connected with or concerned in the barque Jasper, or the object of her voyage ? If he was, state how. Did he proceed from New York in the vessel ? 6. Did Captain Townsend continue in command and exercise con- trol over the bark Jasper to her arrival in Cuba, or not ? Relate all the important circumstances connected with the voyage of the Jasper, from her sailing from New York to her arrival at Cuba. State the places where she touched ; what operations were done at each place ; what cargo she brought to Cuba; whether she landed her cargo or not — where and how ; and what became of her afterwards. Say whether she was anywhere near Sierra Leone. 7. After Captain Townsend left you, or previous to his leaving, and you discovered that slaves were brought on board, and the Spanish captain had assumed command of the Jasper, did you demand your discharge from the vessel ? Was the discharge offered to you, and by CASE OP THE BLACK WARRIOR, ETC 253 whom ? If a discharge was offered you, why did you not accept it and leave the vessel? "" Or, if you demanded it, and it was not granted, what reasons were given you, and by whom, for not granting it V Were you paid your wages ? Where, by whom, for what time? And state all the circumstances connected with the payment thereof. If your wages were not paid, say, did you demand them, and why, if you know, were they not paid you ? 8. What treatment did you receive on the Jasper previous to and after the Spanish captain had assumed command? State the names (if you know them) of the persons who, after Captain Townsend left her, seemed to have charge of the Jasper and her cargo. Were you or were you not forced to work for the vessel after she was under Spanish charge ? Did you perform service ? If yea, say if you were or not offered remuneration for your services. If yea, by whom ? Did you or did you not accept the offer? If accepted by you, was it fulfilled by the other party, and where ? 9. Was the American Hag used by the Jasper after Captain Town- send made known to you that he had sold his ship ? If not, what flag was used on the voyage to Cuba, and during the time she remained on the coast? 10. After the Jasper was burnt, what did the crew and persons on board do ? State the name (if you know it) of the place where you landed. How long were you there ? State all particulars connected with your stay on the key, the treatment you received, and how you came, to be found in a boat at Cape San Antonio. How many of the original crew were with you on the key ? What were their names, what their country ? And give us all the information you know about them. Why did not the other men accompany you when you left the key, and how long after the burning of the Jasper was it that you left the key ? 11. Where were you conveyed when taken up at Cape San Antonio? State all the circumstances of your capture. How long were you de- tained, from the moment of your capture at the Cape to the moment of arrival on board the Spanish Avar schooner Habanera ? What ques- tions were propounded to you on board that schooner? By whom? Was a good interpreter used, or did the officer who interrogated you do it in English ? Are you acquainted with the Spanish language ? What account did you then give of yourself? Was not your report a false one ? If so, what induced you to make a false report ? How long were you on board the schooner, and how were you treated ? If not well treated, was it occasioned by bad or obstreperous conduct on your part? When did you leave that schooner, and how, and where were you taken to ? How were you treated on board the man-of-war in the harbor of Havana, and till what time did you remain on board? When removed from the vessel, where were you conveyed ? How long have you been in jail? How have you been treated whilst in jail? If well treated, or badly treated, by whom ? 12. Have you ever demanded your release and liberty? Of whom, and what were the replies ? 13. Have you been examined at Havana by the authorities of this government since your capture ? How many times ? Have you been 254 CASE OF THE BLACK WARRIOR, ETO. informed by the authorities of the object of your imprisonment ? If you have been examined, have your declarations been the same as you have made in the present examination? 14. State any thing, or things, further connected with the Jasper or her cargo, or voyage, or yourself or shipmates, that, to your knowledge, has occurred, and you have not mentioned in answer to the preceding interrogatories. [l. s.] siempre fiel isla de cuba.— gobierno y capitania general, secretaria politica, seo CION 5A. Consecuente a los deseos manifestados por V. de que se le permi- tiese tomar declaracion a los tres marineros Americanos presos, perte- necientes a la tripulacion del negrero que alijo en Bailen, por concep- tuarlo V. necesario para perseguir judicialmente en los Estados Unidos a los armadores de dicho negrero, he dispuesto como gracia especial por la causa que la motiva, y en vista de lo proveido de conformidad por la rl. sal a la. de justicia de la audiencia pretorial, en virtud del oficio de V. de 29 del ultimo Julio que le transmite, segun dije a V. en 13 del ppdo. Agosto, que el dia 17 del corriente, a las 12 de la mafiana, sean examinados los tres marineros espresados ante el Sor. Oidor Dn. Leon Herques, con la asistencia de V. y de uno de los interpretes de gobo., en el referido tribunal. Lo que digo a V. e fin de que ocurra a la real audiencia mencionada el dia y hora designado con el objeto esplicado. Dios guarde a V. muchos anos. Habana, 15 de Setiembre, 1853. * VALENTIN CANEDO. Sor Agente Comercial, encargado del Conmlado de los E. E. U. U, Consulate of the U. S. of America, Havana. I, William H. Robertson, acting consul of the United States of America at Havana, in the Island of Cuba, do hereby certify that the copy of a communication, written on the reverse page, is a true and correct copy of an original communication by me received from the Governor and Captain General of this island, and signed by him, which original is on file in this consulate. In testimony whereof I hereunto subscribe my name, and affix the [l. s.] seal of this consulate at Havana, this seventeenth day of September, A. D. one thousand eight hundred and fifty-three. WM. H. ROBERTSON. Consulate of the United States, Havana. Be it known, that the Governor and Captain General of the island of Cuba having, at my repeated requests, consented to allow me lo re- CASE OF THE BLACK WARRIOR, ETC 255 ceive the depositions of three men, who say that they are seamen and American citizens, (which their appearances and other circumstances seem to confirm,) and named William Atkins, William Freeburn, and Harvey C. Parks, who have been for some months, and are still, in the prison of Havana, charged with having formed part of the crew of a vessel named the Jasper, which landed negroes from Africa at or near a place called Baylen, on the south side of the island of Cuba, and with having, together with the rest of the crew, after effecting the landing of the negroes, burnt the vessel; I William H. Robertson, acting consul of the United States of America for the port and city of Havana, in the island of Cuba, availing myself of the permission afore- said, (which will appear in a copy authenticated by me, and hereto accompanying, of a letter from said Governor and Captain General to me addressed,) have, on this seventeenth day of September, in the year of our Lord one thousand eighth hundred and fifty- three, at Ha- vana, in the presence of Don Leon Herques, one of the justices of the superior court of the district, and of one of the interpreters of the gov- ernment of the island, commenced to receive the depositions of the said William Atkins, William Freeburn, and Harvey C. Parks, severally, and under solemn oath to make true answers to the various interroga- tories that will be propounded to each and every one of said men by me, which interrogatories are hereto accompanied, and written on six pages, marked 1 to 6, both inclusive. William Freeburn being sworn, doth depose and say as follows : 1. To the first interrogatory he saith : My name is William Freeburn ; 24 years old; carpenter by trade; born in Philadelphia; residence Philadelphia. I was in Philadelphia for the last time last December, about the first of said month. George Geddies, in Willie Grove, about 12 miles from Philadelphia.' j 2. To the second interrogatory he saith : I came to Cuba in the barque Jasper; I joined her in New York, on the 12th of December last, as a sailor before the mast ; I was living, I think, in Oak street; my landlord was Winehold ; I cannot say for certain who were the shipping masters that shipped me, but I think it was Clark and Dean. I did not go to the shipping office ; I signed the articles of the Jasper ; I understood that she was going to the coast of Africa, Sierra Leone being the first place, on a trading voyage for palm oil, and then come back to the United States. The vessel had not, to my knowledge, to touch at any part of Cuba; there was no one concerned or connected with the vessel present at the time I entered my name on the articles, but William Atkins and William Leo. The captain that was in com- mand of the Jasper was named E. Townsend, which I saw written on a bag; Iwas not acquainted with Captain Townsend before I went on board. I was to receive 15 dollars per month. 3. To the third interrogatory he saith : I saw one female in a car- riage. She asked if I and two or three others, that had shipped for the voyage and were there, were looking for the Jasper; she said the captain would be there in a few minutes. I saw Captain Townsend speak to the female when he was on board and passing by ; he shook his handkerchief to her and bade her good-bye. I do not know the name of the female. 256 CASE OF THE BLACK WARRIOR, ETC. 4. To the fourth interrogatory he saith : I do not know Captain Wade. 5. To the fifth interrogatory he saith : I do not know the person called Don Jose Mora. 6. To the sixth interrogatory he saith : Captain Townsend com- manded and controlled the Jasper only to the time that slaves were re- ceived on board on the coast of Africa. When we reached the coast of Africa the mate told us we were not going within a thousand miles of Sierra Leone. The mate was asked the reason, and he answered that he thought the supercargo had changed his mind ; the supercargo was a Spaniard. This is all I know of him, except that when Captain Townsend left the ship, he took command of the ship. There were four Spaniards on board when we left New York ; they came on board at the wharf where I saw the female — two of them as passengers, one as supercargo and the other as his nephew. The Jasper touched first at Eimina, discharged some cargo there, and the supercargo, with his nephew, went on shore. We sailed from thence ; the nephew of the supercargo came on board, the supercargo remaining on shore, and pro- ceeded to Cape Coast ; discharged some cargo there, and took on board 100 bales of tobacco and some elephant's teeth. The captain and mate, J. Brown, quarrelled at this place ; the mate was discharged and went ashore. He was discharged for drinking liquor, and the captain subse- quently said he considered his life was not safe as long as the mate was on board. From thence we went to Little Mina ; we were there boarded by an English war-steamer ; we were under American colors ; we dis- charged there some pipes of rum, took in some ducks and hogs, and filled our water-pipes. We asked the reason why all the water-pipes were filled there, when our next place of destination was so near, being only eight days sail ; we understood our next place would be Laguna. We were answered, that the water further down the coast was brackish, and not fit to drink. Some of my shipmates, after the British steamer had boarded us, asked the captain of the Jasper for some clothes. He an- swered, that we were to meet the steamer at Laguna, and there he would exchange rum for some stuff to make clothes with. In a short time after the steamer boarded us ; we started, as we understood at the time, for Laguna; we did not go to Laguna ; in three or four days we went into a place, the name of which I know not, though it sounded something like Wiggie-Waggie. It was just dark when we got into the place and let go the anchor; the next morning a white man, that was either an Englishman or American, as he spoke very good English, came aboard, shook hands with Captain Townsend, and went into the cabin; he came out in a few minutes, and in the same boat that he came out in, took fifty bales of the tobacco that we took in at Cape Coast ; we dis- charged some pipes of rum into some canoes ; the same man that came aboard first came back with a letter for Captain Townsend ; he took the rest of the tobacco, and, as he went over the side, Captain Town- send told him to tell Mr. Hutton he did not want a receipt for that tobacco ; we put the hatches on then, and did not discharge or take in anything more. In about half an hour, or an hour, we saw twenty or thirty canoes or more ; we asked what the canoes were for, as we thought they were coming for rum ; and Radcliffe, who was acting CASE OP THE BLACK WARRIOR, ETC. 257 second mate, went aft and asked if he was to take off the hatches ; a Spaniard named Loper, who was afterwards second mate, said he did not know what they were for, but that he knew they were not coming for rum ; he said that they wanted to trade for palm oil, but that the supercargo had engaged for more palm oil already than he wanted ; the canoes went down the coast, and did not come to the ship ; the men went about their work till dinner-time ; after dinner Captain Town- send gave orders to get the ship under way ; we dropped down about twenty or thirty miles, as near as I could judge, and we saw all these canoes which we thought must be the same as we saw in the morning; when we got to about opposite to where the canoes were, we let go the anchor ; the Spaniard named Loper was standing on the deck ; we asked him if they were not the same canoes, and what they were for? He said he did not know ; the canoes were coming towards the ship, and all were standing on the forcastle looking at them ; the boy, John William Leo, came running forward, and said, "By G — d! there must be something up ;" he said he heard Captain Townsend speak to Mr. Hussy, who was the second mate before the chief mate was discharged, that his wages came to ninety-six dollars ; we did not know what to think at the time ; Radcliffe was next called into the cabin ; Atkins and myself were called to carry some bags forward ; we had carried but two or three, when we were called into the cabin, together with Charles Robinson ; the captain (Townsend) was sitting at the table with a pile of money before him ; he asked us if we knew what was up ; we hardly knew what to answer him, for we saw slaves coming in at the time ; Captain Townsend said, / have sold my ship and am going to pay you off ivith three months' extra pay ; we asked him why he had not let us know it before ; Captain Townsend said he did not know it till yesterday ; that he had sold his ship yesterday afternoon ; he said they were bound to take us home in the ship as passengers ; he said he could not protect us at this place, as we were five hundred miles from either American or English consuls ; we went out and told Harvey Parks, who was sick at the time in the forecastle ; he would not believe us at first ; we at last convinced him by showing him our money ; we had been on board about two months and a half, and sixt} r - nine dollars were paid to us ; a short time afterwards Parks came out of the cabin, and I asked him what he intended to do"? He said, go ashore, of course ; he went to the gangway and beckoned to a canoe that had discharged her negroes on board ; the Spanish supercargo was standing at the brake of the poop at the time, and beckoned with his hand to the canoe not to come alongside ; Captain Townsend was standing then in the waist, and said "damn it, men, don't act like children ;" we did not see when Captain Townsend went ashore, but the boy saw him and told us. In the mean time the Spanish mate, and second mate, and a. white man from the shore, were employed taking in negroes on board. After the slaves were all on board, the Spaniard who acted as second mate, generally called Loper, was employed, in unshackling the chain ; the supercargo said that he was now captain, and that, if we would work the ship he would give us fifty dollars a month ; he also told us, if we went on shore in the bush, if we were not killed before morning, that we should be starved to 17 258 CASE OP THE BLACK WARRIOR, ETC death. We, therefore, were afraid to go on shore, and thought it best to work the ship. We went to work, got the ship under weigh, and one man was placed at each hatch, (there were three hatches,) and one on the forcastle on the look-out ; one was at the masthead in the day time ; the rest of the men were made to sleep on the poop ; as they would not permit us to sleep in the forecastle. We were very badly treated, and kept at work all the time. Loper struck Harvey once with a pump, and then pulled out his knife and made a pass with it at him, when Harvey caught his wrist. In the mean time, the knife dropped ; Harvey dragged him up on deck; the old second mate, Mr. Huss}^, went up and took the wheel, and Radclifte came forward and struck the Portuguese, whose name was Domingo, for giving the knife * to Loper. The first mate came forward first, and then the captain ; and the first mate caught hold of Harvey Parks's arm, so that he should not hit Loper ; the captain went between the ones that were fighting, and told the first mate to go aft and get the pistols, and forced us to go to work. The second mate, at another time, also struck Atkins for not going to the wheel. We sailed in February for Cuba, where we arrived in the latter part of April. The cargo brought from Africa was landed at a place about seventy or eighty miles to the eastward of Cape Antonio. There were some high grounds near the place where we were. The slaves were landed in two boats of the ship, and several boats (three, I think) from the shore. One negro died on the passage. The Jasper was aground at the time ; one day was spent in trying to get her off, and all the rum and water that was in her was stove to lighten her. A party of Spaniards from the shore came on board the next night to help the vessel off; we made every effort to get her off; we were in the boat towing the large boat that had the anchor ; we were told to come on board, that they were going to fire the ship ; we were told to put our things in the boat, and go with the second mate, (Loper.) We got all our things out into the boat, and were tow r ed about twelve miles above the place where the slaves were landed. 7. To the seventh interrogatory he saith : I asked for my discharge, and the captain (Townsend) said he could not protect us; I was paid my wages 03^ Captain Townsend. 8. To the eighth interrogatory he saith : I have explained the treat- ment we received on board ; the captain was named Jos6, the chief mate Dionisio, (but generally called Dennis,) and Loper ; we were forced to work in the vessel after she was under Spanish charge ; I did do duty ; I was offered remuneration ; I received seventy-eight dollars after the slaves were landed. 9. To the ninth interrogatory he saith : The American flag was not used ; the Spanish flag was used. 10. To the tenth interrogatory he saith : After the Jasper was burnt the crew remained on shore, doing nothing ; ten days after the captain came and paid us off", and said that a schooner would be there in five days to take us to Havana ; we were not ill-treated while on shore. The following are the names of the original crew that were with me: William Hussy, Charles Robinson, Robert Radcliffe, William Hers^y, William Atkins, Harvey C. Parks, John William Leo. On the 15th day after we were on the place, which was a key, no schooner came CASE OF THE BLACK WARRIOR, ETC. 259 for us; the Spanish first mate was close by the place; we asked him if nothing was coming to take us away; as far as we could understand, he said he had nothing to do with us, and we might go where we liked ; that same night we took the long-boat, after the Spaniards were asleep, (the boat had been off the Ja§per,) got a couple of boat's masts, a couple of sails, and two jars of water, and a saw, and the top-sail halliards of the ship; we put out to sea with the expectation of being picked up by a merchantman or a man-of-war; when out about two days, we put into the shoie to get some provisions; when we landed, a man came to us, and asked what we wanted ; we said we wanted to buy some provisions ; he asked where we were from, and we answered, from Jamaica. Whilst getting the provisions, several soldiers came to the house. Radcliffe was an Englishman; Atkins is an American; Parks is an American; Huss} 7 hailed from Nantucket; Hersey was a Nova Scotian; the cook, whose name. I have omitted before, was named George Hunt, an American; Robinson was a French Canadian; and Leo was an American. The reason why the others did not come with us, was, that Radcliffe was very sick, and Robinson was his friend and would not leave him ; Mr. Hussy and Hersey did not know of our plan ; the rest, after agreeing to come with us, declined. 11th. To the eleventh interrogatory he saith: When the soldiers came to the house where we were taking the provisions, they asked us who we were, and where we were from. We told them we were Americans, from Jamaica; they said they would send us on board the Habanera schooner. We were a little more than two days on the way from the cape to the schooner. When on board, we were asked who we were, and where from ; we said from Jamaica. We were asked if we belonged to a ship there. I said I left the Duke of Wellington. I do not know what was the office of the person that asked the questions ; he appeared to be an officer, and spoke in pretty good English. My report was a false one. I was afraid that if I told the truth, perhaps they would not believe, or perhaps put me in prison, and I did not wish to be detained from making my statement to the authorities of my country. We were put in irons, but not otherwise ill-treated. I was on board the schooner about thirty-five days ; from thence conveved to Havana in a small merchant schooner, and put on board of a man-of- war in this harbor. We were not ill-treated. We were on board this man-of-war about eight days ; then to the prison we have been till now, on shore. We have been in the prison since the 2d of July. We have not been ill-treated by the officers of the prisons, but have been by the other prisoners. 12th. To the twelfth interrogatory he saith : I have not asked, except of the consul of my country, now taking my deposition, for liberty, or my release or trial. 13th. To the thirteenth interrogatory he saith : I have been exam- ined by the authorities of Havana once. I have not been informed by the authorities of the object of my imprisonment. I have made at the examination by the authorities here the same declarations that I have made now. 14th. To the fourteenth interrogatory he saith : At Cape Coast one 260 CASE OF THE BLACK WARRIOR, ETC of the men asked for his discharge, and it was refused him: he asked for his discharge on account of the victuals not being good. There were several means taken to deceive us before we got to the place where the slaves were taken in, Captain Townsend assuring us that we were to go back to the places we had been at to take palm oil. Further this deponent saith not, and subscribes his name. WILLIAM FREEBURN. September 20, 1853. Harvey C. Parks, being sworn, did declare and depose as follows : 1. To the first interrogatory he saith: My name is Harvey C. Parks, aged twenty-three years ; a seaman ; born in Adams, Jefferson county, in the State of New York; residence in the town of Palmyra, New York, Wayne county. I was there about fourteen days before I embarked. Judson N. Pond, who lives in Marion Corners, a town adjoining Palmyra* 2. To the second interrogatory he saith: I came to Cuba in the bark Jasper ; I joined her on the 12th December, in New York, in the capacity of sailor ; I lived in 94 Roosevelt street, the house kept by William Cloudsley. I think 1113- shipping-masters were Clark and Dean, who kept in South street, somewhere between Pine and Fulton streets, as I believe ; I subscribed my name to the articles. I did as- certain the conditions of the voyage ; I understood, for I was told, that the vessel was going to the coast of Africa on a trading vo}~age ; but they told me in the office that they could not tell which would be I he first port we Mere going to ; I understood we were to come back to the United States; no part of Cuba was mentioned; the voyage was not to exceed six months ; there were persons in the office, but none that I knew; the name of the captain that was in command was E. Town- send; I did not know the captain before I went on board ; my wages were fifteen dollars a month. 3. To the third interrogatory he saith : I saw a female in a carriage, who asked a person that was with us, and afterwards proved to be our mate, if we were looking for the Jasper; he answered that he was, and she told him then to wait a minute and the captain would be there; we waited a few minutes, and the captain came round in a boat ; he told us, Men, put your things in the boat, and pull across the At- lantic dock, where the Jasper laid; I saw Captain Townsend speaking to the female, but did not hear any conversation ; I do not know the name of the female, but, from some conversation I overheard, I under- stood she was the captain's lady. 4. To the fourth interrogatory he saith : I do not know Captain Wade. 5. To the fifth interrogatory he saith: I know the Spaniard called Don Jose Mora; after the vessel was got out of the dock, a steamboat took hold of her; there was a man told the captain of the steamboat that he wanted to stop at the other dock a minute, which he did, and took in three or four trunks ; and three Spaniards came on board, one of whom was said Don Jose Mora, as it afterwards proved ; we were told that he was the supercargo of the vessel; nothing worthy of notice CASE OF THE BLACK WARRIOR, ETC 261 occurred about him (we did not see him but once or twice the whole passage) till we got to Africa ; the last time I saw Jose Mora was on the island of Cuba, to which he came as captain of the Jasper. 6. To the sixth interrogatory he saith : Captain Townsend did not command the Jasper to her arrival in Cuba. Nothing important oc- curred until our arrival in Africa. The first port we went into was V Elmina ; we put ashore some rum, a few boxes of sugar, and some cigars ; received some elephant's teeth. The supercargo, with another of the Spaniards, who was called his nephew, went ashore. After lying there three or four days, the supercargo's nephew came on board, and we dropped down to Cape Coast, which, is about four miles to the southward of Elmina ; we put ashore some rum there, and sugar and cigars, and received some more elephant's teeth, and some hundred and eightv bundles of tobacco done up in hides, and one hogshead of tobacco. * There the mate, John Brown, was discharged, and he went ashore. The captain made Robert Williams, who was sometimes called Radcliffe, act second mate ; the former second mate was made first mate. There the supercargo came on board. We got under way and went down the coast to Little Mina ; there we put ashore a good deal of rum and all the cigars remaining ; there we filled all our water- casks. We asked why they were filling so many casks. One of the Spaniards, who was called Pepe, answered us, and said that the water down the coast was brackish ; there were about ten casks filled ; we did not know at the time that there were any more casks of water on board, but subsequently, after we left the coast, we discovered that there was a very large quantity of water. We received on board at Little Mina a large quantity of ducks, hogs, and fowls. An English war steamer boarded us here ; I forget her name. We asked for some stuff to make light clothes ; Captain Townsend said that he would pro- cure us the stuff on the first opportunit}-. From thence we went to a little place called Ackie Wackie ; we understood that we were going to Laguna, but did not go there. At Ackie Wackie, a gentleman, who was either American or English, came on board, to whom was deliv- ered a quantity of tobacco ; this man received all the tobacco ; I heard Captain Townsend tell this man to inform some one that he wanted no receipt for the tobacco. The supercargo's nephew left us at Little Mina. A quantity of canoes, which we thought were coming down towards us, went down the coast. We laid there some two or three days, and put ashore also some casks of rum. We got under weigh soon after dinner ; dropped along down the coast, some twenty or twenty-five miles ; Captain Townsend told the second mate to overhaul twenty-five fathoms of chain round the windlass and weatherbit it ; we all inquired what that was for ; Williams said he did not know. At this time we were dropping down coast, all sail loose, only the fore topsail hoisted up, and the jib ; we all considered this very strange ma- noeuvring. We then saw a large number of canoes lying near the beach, and a large number of negroes on the beach. As we ap- proached, the canoes came towards us ; we thought they were after rum ; we let go the anchor shortly close to the beach, and let all sail hang ; the captain called the second mate, who went aft ; the boy, John Leo, was coming forward at the time ; the bov said, " Bv G — d, there is 262 CASE OP THE BLACK WARRIOR, ETC. something up ;" we asked him why, and he said he heard the captain paying Mr. Hussy off. In a few minutes, we were all called aft into the cabin. By this time the canoes were alongside filled with negroes. We went into the cabin, and the captain (Townsend) said, " Men, I have sold my ship, and made a losing voyage of it ; I am going to pay you off with three months' extra pay ; you can go in the ship if you like; I cannot protect you here ashore." We asked him what he was going to do, and he said he was going right ashore. By this time the cabin was half full of ne- groes. We asked Captain Townsend if we could not go ashore. He said we could if we liked, but that he could not protect us, and that it was as much as he could do .to protect himself; he said also, " Be men, and go in the ship." We received our money and went on deck. The Spaniards and Williams, alias RadclifTe, were at work taking in the negroes. Jose Mora informed us that he was now captain of the ves- sel, and said also, " Men will you go with me ; if you will, I will give you fifty dollars per month each" We told him we did not know — that we wanted to think on it. We went forward and divided our money, as the whole had been paid together. All this time negroes were coming on board. I asked the other men what they thought about it, and told them I did not like to go. We went again to Townsend, who said, " Men, don't be children, go with the captain and lie will treat you well;" saying, also, ''fifty dollars donH grow in eve?~y bush." The Spanish captain came up to us and asked us again if we were not going, and said that all would be right. We told him we could not tell yet ; we wanted to wait a minute, and went forward and sat down again. In a. few minutes he called us aft, and asked again if we were going, repeated his offer of fifty dollars a month, and promised that when we came out he would send us to the United States. Whilst he was talking I hailed a canoe, but the Spanish captain spoke something in Spanish, and the canoe did not come alongside. My intention was to go ashore in the canoe. We again went forward, and concluded that we would go to work ; we saw that Williams, Hussy, and Robertson, had gone to work ; we went to the gangway, and I asked the Spanish captain what his conditions were : he said he would give us fifty dollars a month ; that we should not be misused ; and after the negroes were landed we should all be sent to the States ; we then went to work. That same night we left the place with from three hundred to three hundred and fifty negroes on board. Nothing important occurred until we got to the coast ; here we landed the negroes on a small key on the south side of v 7 Cuba, in the morning. After they were landed, the carpenter and myself went ashore and asked the captain what was going to be done; he said, get the ship off (she was aground) and round the ke}^ and I will pay you off and send you away ; the captain was sick at the time; we went on board ; nothing was done that day till the evening tide ; the captain sent on board a pilot to take the vessel round the island ; we got her off that night, and the Spanish mate wanted the pilot to take her round that night, which he undertook to do, but by some mis- mangement she was got aground again ; there was nothing more done that night ; the next day we were employed in lightening her. The same evening about a dozen Spaniards came on board to help us get her off; we did not succeed in getting her off; a boat went ashore and CASE OF THE BLACK WARRIOR, ETC 263 came back, saying that the captain had ordered her to be burnt; the * mate told us to get our things into the boat and go ashore, which we did ; and as we were going down the coast, about eight or nine miles from the vessel, we saw the smoke and light rise from the spot where the ship lay ; the Spanish mate was with us in the boat, and said we were to stop there a few clays ; the place was a key, as we were told ; we stopped there ten days. 7. To the seventh interrogatory he saitli : I did not demand my dis- charge, because I supposed that I was discharged; I demanded to go ashore, but could not. 8. To the eighth interrogatory he saith j I received good treatment before getting to Africa, and very bad afterwards. 9. To the ninth interrogatory he saith: After we were informed that the Jasper was sold, the American flag was not used, but the Spanish. 10. To the tenth interrogatory he saith : I have already stated, in my answer to a preceding interrogatory. I do not know the name of the place ; we stayed there fifteen days ; I was well treated by the Spaniards ; the captain, at the expiration of ten days, came and paid us, and promised that we should be taken off in three or four ; five days after, finding the promise unfulfilled, myself, Atkins, and Freeburn took the ship's boat in the night, leaving the balance of the crew on the key ; we went into Cape Antonio for provisions, and were taken up by the authorities and conveyed on board the man-of-war schooner Habanera; the names of my shipmates were, William Hussey, of Nan- tucket ; John William Leo", of the western part of New York ; George Hunt, a colored man, of Maine ; John R,adclifFe or W T illiams, an Eng- lishman ; Robinson, a French Canadian ; Charles Hersey, of Nova Scotia; William Atkins, of New York; and William Freeburn, of Philadelphia. 11. To the eleventh interrogatory he saith : As stated to the tenth, I was sent on board the Habanera ; I was asked where I came from, and where I was going ; it was asked in very gcjod English ; I replied that we were from Jamaica., and were going to Key West ; my report was a false one; I was induced to make a false report, fearing that if we told the truth they would not believe us ; I was on board thirt}- five days ; I was well treated ; from thence I was sent on board a man-of-war in Havana; I was there eight days; I was very well treated; from thence conveyed to the jail of Havana, where I have been since the 2d of July and have been well treated by the officers, but ill treated by the other prisoners. 12. To the twelfth interrogatory he saith : I demanded on the Ha- banera to be sent to the American consul. 13. To the thirteenth interrogatory he saith : I have been examined once; I have not been informed of the object of my imprisonment; my declarations to the Spanish authorities have been the same as I have made now. 14. To the fourteenth interrogatory he saith : I do not think of any- thing more ; and further this deponent saith not, and subscribes his name. HARVEY C. PARKS. 264 case of the black warrior, etc September 21, 1853. William Atkins being sworn, did depose and say as follows : 1. To the first interrogatory he saith : My name is Williams Atkins ; 23 years of age ; I am a seaman; I was born in the city of New York, in Roosevelt street ; I have resided tor the last eight years in Oak street, city of New York ; my landlord was Winhold ; Captain Skofield, of ship Joseph Badger, of Brunswick; Captain Sawyer, of Mystic, in Con- necticut. 2. To the second interrogatory he saith : I came to Cuba in the bark Jasper ; I joined herein New York, on the 12th December last, as a seaman; I was living at Wkihold's, Oak street — 1 think No. 45; I am not sure who were the shipping-masters, but think it was Clark and Dean, who came and shipped me at Winhold's ; I signed the shipping articles ; was told we were going to Sierra Leone, and other ports on the coast of Africa, on a trading voyage, which we were informed would last about seven months ; the vessel was to come .back to New York ; no part of Cuba was named ; no one concerned in the Jasper was present ; the captain's name was Townsend — his first name I think was Edward; I was not acquainted with Capt. Townsend before I went on board ; m3 r wages were fifteen dollars per month. 3. To the third interrogatory he saith : I saw a female in a carriage ; she asked us if we were after the Jasper ; we answered in the affirma- tive, and she told us to wait — that the captain was coming in a few minutes; I saw the captain speaking to her; I do not know her name. 4. To the fourth interrogatory he saith : I do not know Capt. Wade. 5. To the fifth interrogatory he saith : I do not know the person called Jose Mora. 6. To the sixth interrogatory he saith : Captain Townsend did not command and control the Jasper to her arrival in Cuba. When we were getting the vessel oat of the dock, a boat came from the opposite side with a man, who proved to be a pilot; Captain Townsend ex- claimed, My game is up now. Some chests were brought on board, and three or four men came on board ; they were Spaniards. Nothing worthy of notice occurred till our arrival in Africa. Wc first went into Elmina; from thence to Cape Coast; our mate was discharged — his name was Brown; from thence we w T ent to another place that I heard called Little Mina; we took water there, and fowls, pigs, &c. ; an English man-of-war steamer visited us here ; the captain, as the second mate told us, said to the officers of the steamer that we were going to Laguna; from thence we went to another place, the name of which I do not know; from thence to another place without houses. While busily employed on board, the second mate, the first thing we knew, had been paid off"; then myself and others were called into the cabin. The captain said, / am going to pay you off with three months' extra pay ; I am going to leave the ship here, and VU have nothing more to do with you. He said that he was going ashore there — that he had made a losing voyage of it. I told him that I wanted to go ashore too. He said, you can't go ashore here — the negroes will kill you for what money you have got; and if they don't kill you, you won't get anything to eat, and will starve to death ; he said, also, that he could not protect us, as there were no consuls nearer than 500 miles ; he said, also, You CASE OF THE BLACK WARRIOR, ETC 265 see what is up. I told him, why did you not tell us before ? He answer- ed that he had no knowledge till the day before — that he had sold his ship ; negroes were coming on board at the time, and before we were paid off there were about a dozen of them in the cabin. When we were on deck* one of the passengers, who had been called supercargo, had then assumed command, and told us that he would give us fifty dollars a month to continue in the ship. I told him I did not want his money ; but it seemed that we had no other alternative but to go in the ship. Captain Townsend advised us to go in the ship, saying, You had better put money in your pocket — it is nonsense to go ashore here ; the rest of the crew went forward and consulted together. We were afraid to go ashore from what the captain had represented, and what Ave our- selves could see. After we were paid, the captain (Townsend) came to me, (I was standing on the waist,) and said, " Well, Atkins, what do you think of it now ?" I answered, " I do not know ; you have done it so quick that ive are taken all aback" He then said, " let me alone. for that ; dial is the way I do business — quick is the word" Then we went to work — took in a little over three hundred negroes, I think. I did not see when Captain Townsend went off, but he did go. About three hours after we were paid off, we got under way. There were a few dis- turbances on the passage ; we were badly treated and kept separated as much as possible, and sometimes without sleep ; we sailed on the 2d of March, and arrived on the coast of Cuba between the sixteenth and twentieth of April, on the south side ; were not anywhere near Sierra Leone ; we dropped anchor at two or three places on the coast of Cuba ; at one of the points a boat came ; the next day after arrival on this coast the vessel struck ; the negroes were landed then ; they were landed in the boats of the ship, and some two or three boats from the shore ; that night, after some work, the vessel floated ; a pilot came on board ; she grounded again ; we worked to get her off, without suc- cess ; we were told to put our things in a boat and go ashore — that they were going to set fire to the ship ; we put our things in a boat and were transported about 12 miles up the coast to the westward : we went ashore ; ten days after, the captain came and paid us off; he told us that in a few days a schooner would come there and take us off; a schooner did come, but took no notice of us, The Spanish mate, (Dio- nisio,) who was with us, then said that he would not stop any longer, and that we might do what we best could. That night we waited till all were asleep, and myself, Freeburn, and Parks took the ship's boat and proceeded to sea, intending to go to Key West and inform where the rest of the crew were, if" not picked up in the Gulf. Thir- ty-six hours after we put into Cape San Antonio, to procure water and provisions. There we were taken by the Spanish authorities, and sent on board the man-of-war schooner Habanera. 7. To the seventh interrogatory he saith ; When 1 was paid my money I took it as a discharge, but did not avail myself of it, for reasons given in the preceding interrogatory. 8. To the eighth interrogatoiy he saith : I was well treated before Townsend left, but very badly after. The names of the persons in charge appeared to be all assumed. The captain's name I never heard. The first mate was called Dionisio ; the second mate, Loper. I was 266 CASE OF THE BLACK WARRIOR, ETC forced to work, but we were paid for our work on landing at the rate of fifty dollars a month. 9. To ihe ninth interrogatory he saith : The American flag was not used ; the Spanish was \\>cd. 10. To the tenth interrogatory he saith: I have answei'ed the greater part ol this interrogatory before. The names of the rest of the crew were Mr. Hussy, (second mate,) William Radcliffe, George Hunt, (a black man,) Robinson, John William Leo, (a boy,) Charles Hersey, and the two that are now in prison with me. Radcliffe was sick, and pretty nearly dead ; and Robinson, who was his friend, would not leave him. The cook, Hunt, agreed to come with us, but changed his mind : the rest were afraid. We left the place some fifteen days after the burning of the Jasper. 11. To the eleventh interrogatory he saith : I was conveyed to the schooner Habanera. I was there thirty-five days. I was asked where I was from, and what countryman I was"? The officer that interro- gated spoke some English. 1 said we had left a vessel called the Duke of Wellington at Jamaica, which was a false report. I was afraid if I told the truth something worse might happen to me. The other two men were put in irons, but I was not, as I had sore feet. We were otherwise well treated. Then we were placed in a small schooner, that conve3 T ed us to Havana in thirteen days' passage, and we were placed on board the admiral's ship. h\ this ship we remained eight days, and were well treated ; from thence to the jail of Havana, where we had the opportunity of communicating with the American consul. I have been in the jail two months and nineteen days. We have suf- fered a great deal from being confined with criminals, who have ill treated us and stolen our property ; but the officers of the prison have treated us well. 12. To the twelfth interrogatory he saith : I have never demanded my release or liberty, except once on board the schooner, and once of the American consul here. I am not informed of any charge against me. 13. To the thirteenth interrogatory he saith : I have been examined by the authorities once ; have not been informed why 1 am in prison. My declarations were the same as I am now making. 14. To the fourteenth interrogatory he saith : I believe I have stated everything. Further this deponent saith not, and subscribes his name. WILLIAM ATKINS. I, William H. Robertson, acting consul of the United States of America for the city of Havana, in the island of Cuba, do hereby cer- tify that what appears written on thirty pages preceding this, numbered from 10 to 39, both inclusive, are the answers given under oath by William Freeburn, Harvey C. Parks, and William Atkins, and signed by them in my presence, to the interrogatories propounded to them by me, and appearing on pages 1 to 6, both inclusive. CASE OF THE BLACK WARRIOR, ETC 267 In testimony whereof, I hereunto set my hand, and affix the seal of the consulate of the United States of America at Havana [l. s.] aforesaid, this twenty-third day of September, A. D. one thousand eight hundred and fifty-three. WILLIAM H. ROBERTSON. Mr. Mann to Mr. Robertson. Department of State, Washington, September 30, 1853. Str : Referring to your dispatch No. 45, in which you make known to the department that it is now entirely out of your power to do any- thing more for the unfortunate American seamen now confined in prison at Havana, charged with having been engaged in the slave trade, 1 have now to inform you that a copy of the correspondence on the subject will be transmitted to the minister of the United States at Madrid, with an instruction to bring the subject to the attention of the Spanish government. ******* I am, sir, &c, A. DUDLEY MANN, Acting Secretary. W. H. Robertson, Esq., In charge of the U. S. Consulate at Havana, Cuba. Mr. Robertson to Mr. Marcy. [Extract.] [No. 60.] Consulate of the United States, Havana, October 20, 1853. Sir : * * * * Information has just been brought to me that the three prisoners whose depositions have been sent to the department are about to be brought to trial, and that the fiscal (prose- cuting attorney) has asked the court to condemn them to imprisonment for four years. Their final hearing will take place in a few days, and notice was sent to them to appoint a lawyer for their defence. * * It seems that they will be triecl on the ground that they stated in their declaration, when first captured, that they had escaped from an English vessel, and therefore they deem the whole statement untrue ; but still take that part of their declarations admitting that they had been on board the Jasper, and engaged in the slave trade, for which they must be punished. The same court, I am informed, has liberated, within a 268 CASE OF THE BLACK WARRIOR, ETC few days, all Spanish prisoners that have been imprisoned for the same cause, taken in the act. I have the honor to be, sir, with great respect, your obedient servant, W. H. ROBERTSON, Acting Consul. Hon. William L. Marcy, Secretary of State of the United States, Washington. Mr. Robertson to Mr. Marcy. [Extracts.] [No. 61.] Consulate of the United States, Havana, October 26, 1853. Sir : On the 20th instant (dispatch No. 60) I had the honor to inform you that the three American seamen in prison here were to be brought to trial in a few days. #*##.;# There is not one particle of evidence against the accused, but their own testimony. * * * * The prosecuting attorney rests his de- mand upon the plea, that they have not been able to 'prove that they were forced to remain on board the jasper after she ceased to be engaged in a lawful trade. * * * * * * # I am fearful that this affair will become more complicated, and more delay occasioned, by the fact that the six other men of the Jas- per, of whom no information had been had for some time, are now in the hands of the authorities of the island. This fact was communi- cated to me on the 22d instant by the general of marines. A copy of his communication, and of my reply thereto, are herewith enclosed. ******* I have the honor to be, with great respect, sir, your obedient servant, W. H. ROBERTSON, Hon. W. L. Marcy, Secretary of State of the United States, Washington. Acting Consul. [Translation.! Consulate of the United States, Havana, October 22, 1853. Most Excellent Sir : I have just received the communication that your excellency has done me the honor to address to me, accompany- ing the report which, under date of 19th instant, was addressed to your excellency by the commander of the war steamer Guadalquiver upon the occurrence at Cayo Jutias, and informing me at the same time that the six men to whom the commander makes reference, and calling themselves North Americans, belonging to the crew of the ves- CASE OF THE BLACK WARRIOR, ETC. 269 sel they called Jasper, have been placed by your excellency at the disposal of his excellency the Governor and Captain General of the x island, for the purpose that he may deem proper. I doubt not that his excellency the Governor and Captain General will, at the proper time, officially communicate to this consulate what may be ascertained relative to said individuals. Be pleased, however, to receive my thanks for the information your excellency has in ad- vance communicated, and to accept the assurances of respect and con- sideration with which I am your excellency's very obedient servant, W. H. ROBERTSON, The Commercial Agent in charge of the Consulate. His Excellency Sr. D. Jose Ma. de Bustillo, Commander General of Marine. Mr. Robertson to Mr. Marcxj. [Extract.] [No. 62.] Consulate of the United States, Havana, October 28, 1853. gi R . * * * * * * # I ascertained yesterday that the six men of the barque Jasper had arrived in the morning, and were on board the guard-ship. I immedi- ately called on the captain of the port and requested permission to see them. He immediately granted it, and very courteously and kindly placed his own barge at my disposal to convey me to the guard-ship. I saw the men ; their story is equal in all respects to that given by the other three at their examination before me. I suppose the Captain General will write to this consulate soon on this subject. I expected Judge Clayton would arrive to-day in the Black Warrior, but he has not come. He may be here to-morrow in the Crescent City steamer from New Orleans. Very respectfully, your obedient servant, WM. H. ROBERTSON. Hon. W. L. Marcy, Secretary of State, Sfc. Mr. Cowjjerthwaite to Mr. Marcy. Philadelphia, Nove?nbcr 3, 1853. Sir : Since my respects of the 27th ultimo, the parents of the unfor- tunate young American, William Freeburn, are plunged into the deepest distress on the receipt of the intelligence, brought by the last mail steamer from Havana, that their unhappy son and his two companions have been condemned by the Spanish authorities of Cuba and sentenced to an imprisonment of four years. At their earnest solicitation I again address you, sir, to know whether official information of this kind had 270 CASE OF THE BLACK WARRIOR, ETC reached Washington, and whether the needful steps for the reief of these young men had been taken on their behalf. On the 25th of September the mother of young Freeburn addressed a letter to William H. Robertson, the acting consul at Havana, en- treating his good offices on behalf of her son. His reply, under date of the 6'th of October, is now before me, in which he says, " I hasten to relieve a mother's feelings, as the steamer goes in the morning, to say, I have just sent the deposition of your son and his two companions to the government at Washington, which deposition purges them of all guilt." I hope this document has safely reached Washington, and that meas- ures have been taken to vindicate the rights of these unfortunate young Americans. The consul seems to have done all in his power to alleviate their miseries, and expresses the strongest conviction of their entire inno- cency, and the confident expectation of their speedy release. If the deposition forwarded by consul Robertson has reached Wash- ington, it would be a consolation to the parents to be furnished with a copy of it, as it would vindicate the integrity of their son. May I ask to have a copy sent to me, and for a reply to this communication as early as the pressure of your important duties will permit. I have the honor to be, with great respect, your obedient servant, J. COWPERTHWAITE. Hon. W. L. Marcy, Secretary of State, Washington. Mr. Graff to Mr. Marcy. Philadelphia, November 5, 1853. Dear Sir : I take the liberty of addressing you with the object of giving some testimony to the good character of one of the unfortunate sailors who shipped under mistaken impressions in the " barque Jas- per," and are now imprisoned in Havana : hoping that what knowledge I may communicate of such good character may be useful in establish- ing an impression in your mind as to his innocence of any voluntary connexion with the nefarious trade, as is now alleged against him. The young man referred to, William Freeburn, I have had in my employ several times, and have had considerable knowledge of him for a period of at least eight years, and known him to have been a remark- ably upright, amiable, truthful, and perfectly sober young man ; and from the numerous opportunities I have had of judging of his disposi- tion, I feel perfectly confident of his entire innocence of the charges now brought against him ; and that his assertions, that he was induced to ship upon the bark on account of false statements as to her busi- ness and destination, are all entirely true. He is poor, and, of course, has but few to interest themselves for him, even in his own city. In his letters from Havana he speaks in the highest terms of the United States consul there, whom he thinks has done all in his power for him and his unfortunate companions, of which of course, you are already aware. CASE OF THE BLACK WARRIOR, ETC- 271 The government, through you, will, I know, take all the proper steps in this matter, and I merely write these few lines with the hope that what testimony I can give as to his character, and the l-eliance I have in the statements made by him, may assist you in forming some conclu- sion as to the innocence of the charge upon which he is imprisoned. Hoping that you will receive my anxiety lor the } T oung man (in whom I am much interested) as sufficient excuse for the liberty I take in in- truding these few lines upon you, I remain, very respectfully, your obedient servant, FRED. GRAFF, Civil Engineer, Sup. Fairmaunt Waterworks. Hon. Wm. L. Marcy, Secretary of State. Further testimony can be obtained if you should consider it neces- sary or desirable. Mr. Robertson to Mr. Marcy. [No. 64.] Consulate of the United States, Havana, November 7, 1853. Sir : I had the honor to receive on the 3d instant a dispatch from the State Department of the 30th September last, signed by Mr. Dud- ley Mann, as acting secretary. I feel gratified to learn that the de- partment takes an interest in the fate of the three seamen (our unfortu- nate countrymen) now lying in prison here. # ' # # * * # The defence of the three American seamen has been presented to court. I understand that it is an able document, and regret that I can- not forward by this opportunity a translated copy of it. The next steamer will convey it. I have the honor to be, sir, with great respect, your obedient servant, WM. H. ROBERTSON, Hon. Wm. L. Marcy, Secretary of State. Acting Consul. Mr. Marcy to Mr. Clayton, United States Consul, Havana. Department of State, Washington, November 8, 1853. Sir: Your special attention is directed, immediately on } r our arrival at your post, to the condition of the American sailors now imprisoned in Havana, and awaiting their trial, charged with a violation of the laws of Spain in regard to the slave trade. The facts, so far as they are known to the department, from the dispatches of Mr. Robertson, (who has discharged the duties of United States consul at Havana 272 CASE OF THE BLACK WARRIOR, ETC since the departure of Judge Sharkey in June last,) and from gentle- men in the United States, are chiefly these : The barque '- Jasper" was seized in New York on the 19th of October, 1852, charged with sailing under a false register, and belonging, as was supposed, to a Spaniard named * * * * * , though her papers bore the name of * * * * * * . The barque having been detained in custody for some time, was at length bonded in the sum often thousand dollars, and on or about the 12th of December sailed secretly from the port without any clearance or papers, under the command of Captain Townsend, for the African coast. After touching at two or three places on the cape coast, and landing nearly the whole carge, Captain Town- send sailed for another point, where, immediately on his arrival, he in- formed his crew that he had sold -his vessel. She was at once filled with a cargo of three hundred negroes, a part of whom were put on board before Captain Townsend left the ship. Having paid his crew three months' extra wages, and saying he could no longer protect them, he advised them to go back in the vessel as passengers, as they would either be killed by the natives or starve to death if they went on shore. Having no other alternative, they remained on board the vessel, doing duty as sailors, and subjected to much hard treatment. The barque then sailed under the command of Spanish officers, and with a Spanish flag, for Cuba, where, having- landed her cargo, the vessel was run aground and burnt. The Americans who composed the original crew of the vessel, having been told by the Spanish mate that he could do nothing for them, took to the long-boat, and tried to make their way to some place where they could obtain assistance. On the 5th of May the three sailors above referred to, and believed to be citizens of the United States, while seeking water and provisions near Cape Antonio, were arrested by some Spanish soldiers and sent to Havana, where they are now awaiting their trial, which the department is informed in Mr. Robertson's No. 61. under date of October 26th, will shortly take place. The department regrets that the representations which Mr. Robert- son has repeatedly been instructed to make to the Captain General have been disregarded, viz : that these unfortunate sailors were, most likely, ignorant of the intended object of the voyage when they shipped on board the " Jasper" at New York, and are at least entitled to the benefit of the doubt ; that the}* had, in fact, no other way left, when on the African coast, but to return to America in the vessel; and the}* were thus unwillingly compelled, contrary to their inclinations, to par- ticipate; in the odium, the danger, and the criminal offence, (though without criminal intent, and innocent in point of fact ;) that the ends of justice would be best subserved by yielding to the urgent request of the United States district attorney at New York, a copy of whose letter on the subject is on the files of the consulate, to permit them to be sent, under the care of a United States officer, to that place, for the purpose of using their evidence to convict parties in that city supposed to have been concerned in fitting out the " Jasper" and engaging in the slave trade. It was suggested also to Mr. Robertson, in the case of refusal, to re- quest that they might be allowed to be witnesses in suits which might CASE OF THE BLACK WARRIOR, ETC 273 properly be brought against persons in Havana, whose names are well known, and who were the chief instigators of the offence with which these unfortunate men now stand charged. The department has been given to understand that the Spaniards who were arrested and imprisoned for the same offence have all recently- been set at liberty, without the form of a trial, by the very court which has been asked by the fiscal to condemn to imprisonment for four years the American sailors. A proceeding so partial and so contrary to jus- tice, if true, needs but to be stated to receive universal condemnation ; while, at the same time, it must tend still further to excite in this coun- try, and among a portion of the Cuban population, a spirit of increased hostility to the existing institutions of the island. If a part of those alleged to be guilty of the same criminal offence may be discharged without trial by the Spanish court, there would seem to be no reason why the same indulgence should not be extended towards those who, by their own account, which yet remains uncontradicted, were entrapped into the apparent commission of a high crime. Even if the court should be unwilling to assume this responsibility, it is understood that the Cap- tain General is invested with ample power for the purpose. The Spanish authorities seem now determined to press the case of these seamen to a trial, and you are instructed to take care that all the provisions of the seventh article of the treaty between the United States and Spain, of 1795, are complied with. That article declares that "in all cases of seizure, detention, or arrest for debts contracted or offences committed by any citizen or subject of the one party within the juris- diction of the other, the same shall be made and prosecuted by order and authority of law only, and according to the regular course of pro- ceedings usual in such cases. The citizens and subjects of both parties shall be allowed to employ such advocates, solicitors, notaries, agents, and factors as they may judge proper, in all their affairs and in all their trials at law in which they may be concerned before the tribunals of the other party ; and such agents shall have free access to be present at the proceedings in such cases, and at the taking of all examinations and evidence which may be exhibited in the said trials." It is deemed of the highest importance that the prisoners shall be allowed the advice and assistance of counsel in all the examinations of witnesses in the case, and in every step of the proceedings. If the seamen desire it you will be present as the natural defender of their rights, and, by virtue of the treaty stipulations, as their counsel and advocate. Should there be any disregard of these stipulations you will at once enter your protest against it and report the fact to this department. In view of the circumstances of the case you are authorized to em- ploy other counsel, and to charge the expense of the same in your ac- count — it being understood that this is not to be considered a precedent for the employment of counsel, except under special authority from the department. I am, sir, &c, W. L. MARCY. Alexander M. Clayton, Esq., United Slates Consul, Havana. 18 274 CASE OF THE BLACK WARRIOR, ETC. Mr. Mara/ to Mr. Coteperthwaite. Department of State, Washington, November 10, 1853. Sir : I have to acknowledge the receipt of your communication in respect to William Freeburn, one of three American seamen now im- prisoned in Havana, and awaiting his trial, charged with having been engaged in the slave trade. In reply I have to inform you that the department has taken a deep interest in the fate of these unfortunate men from the moment it received information of their arrest and imprisonment. Mr. Robertson has been acting throughout under the instructions of this department ; and Mr. Clayton, the newly-appointed consul at Havana, has been informed of all the circumstances of the case, and additional instructions sent to him since the receipt of your letter. The deposition of William Freeborn, to which 3-011 refer, has been transmitted to Mr. O'Conor, the United States district attorney in New York, for the purpose of being used in an important trial in that city. I transmit herewith an extract from Mr. Robertson's dispatch, dated October 26th, which is the latest information in respect to these seamen which has been received at this department. I am sir, &c, J. Cowperthwaite, Esq., Philadelphia, Pa. W. L. MARCY. Mr. Robertson to Mr. Marcij. fNo. 65.] Consulate of the United States, Havana, November 14, 1853. Sir : In my dispatch, No. 61, dated 26th of October, I had the honor to inform } r ou that the six men, shipmates of the three belonging to the bark Jasper, and that have been so long in prison, had been captured, and that the general of marines had informed me of their capture, and of his having placed them at the Captain General's disposal. With that dispatch 1 forwarded to you a copy of the General's letter and my reply thereto. On the evening of the 7th I received a communication from the Cap- tain General, dated the 5th, on the subject. I send you a copy (trans- lated) of it, and my reply. You will see my object in the reply was to save the six men from a long imprisonment, if possible, and at the same time to prevent more delay in the case of the other three. I am sorry to say that I was unsuccessful, for the Captain General on the 9th in- forms me, officially, that the six men belonged to the Jasper, and that he had put them at the disposal of the royal audienci'% Copies of his excellency's commumcation and of my reply are also herewith enclosed, together with a translation of the defence sent to court by the lawyer CASE OF THE BLACK WARRIOR, ETC. 275 of Parks, Atkins and Freeburn. Sentence has not yet been decreed by the court. ****** I have the honor to be, sir, with great respect, your obedient servant, WILLIAM H. ROBERTSON, Hon. Wm. L. Marcy, Secretary of State, 8fc. Acting Consul. [Translation.] EVER FAITHFUL ISLAND OF CUBA.— GOVERNMENT AND CAPTAINCY GENERAL, POLITICAL SECRE- TARY'S OFFICE, SECTION SEVENTH. There are detained on board the guard-ship Villavicencio six indi- viduals who say that they are shipwrecked men, and that they belonged to the American bark Jasper, lost on the Colorado reefs. Therefore, I hope that your lorship will be pleased to inform me as early as possible all that you may know in regard to said bark's place of sailing and her loss, and whether the said individuals detained be- longed to her, so as to resolve what may be proper. God preserve your lordship many years. Havana, Nov. 5, 1853. VALENTIN CANEDO. To the Agent in charge of the Consulate of the United States. Consulate of the United States, Havana, November 8, 1853. Most Excellent Sir : I had the honor to receive, on the evening of yesterdav, your excellency's official communication of the 5th instant, wherein I am informed of the detention on board the ponton Villavi- cencio of six individuals who belonged to an American vessel and were wrecked on the Colorado reefs. I presume that these individuals are the same about whom his excellency the general of marines courte- ously wrote to me on the 22d of October last, as having been sent to his excellency by the commanding officer of her Catholic Majesty's steamer Guadalquiver from Cayo Justia's, and as having been placed by his excellancy at your excellency's disposal. Your excellency desires me to inform 3-ou, as soon as possible, all I may know in regard to these men, and the circumstances of their ship- wreck. I have no further reliable information on the subject but that, which has been communicated to me by your excellency, and by his excellency the general of marines. I have therefore no good reason to suppose that they are anything but what they state themselves to be. It is my duty, in obedience to one of the standing instructions of my government, to aid and succor all distressed American seamen that may be found within the jurisdiction of this consulate, and if no employment 276 CASE OF THE BLACK WARRIOR, ETC. may be obtained for them, to send them to the United States at the ex- pense of the government. It is also my duty, of course, to ascertain by their papers that they are Americans ; but in many cases of shipwrecks, seamen lose their papers, and the consul must in such cases abide by their word and general appearance. It is very probable that the sea- men referred to may be in the latter condition, and I am ready to receive them and take charge of them, if your excellency will be so good as to order that they be placed at my disposal. I have the honor to be, with great respect, your excellency's obedi ent servant, WILLIAM H. ROBERTSON, Com. Agent in charge of Consulate. His Excellency Senor Don Valentin CaNedo, Governor and Captain General of the Island of Cuba. [Translation.] [seal.] I have received }^our official letter of yesterday, in answer to mine of the 5th instant, about the six seamen who are on board the ponton Vil- lavicencio, and were found at Cayo Justias, and who were sent by the commanding officer of her Majesty's steamer Guadalquiver ; which sea- men having turned out to be the same whom you referred to in your communication of 15th July last, stating that they were on the Cayo Cortes, and who, from information obtained, it was supposed had em- barked on a molasses vessel bound to this port, I have put them, under this date, at the disposal of the real audiencia pretorial, (superior court,) as they belong to the crew of the corvette or bark "Jasper," that landed the cargo of bozal negroes she brought from Africa, at the place called Baylen, or Cortes Cove, where she was burnt after the landing, to the end that the said superior court may determine what is proper on the subject, as said court is still investigating and proceeding in the cause instituted in consequenee of the act mentioned. Which I say to you for your information. • God preserve you many years. Havana, November 9, 1853. VALENTIN CANEDO. To the Senor Commercial Agent in charge of the Consulate of the United States. Consulate of the United States, Havana, November 11, 1853. Most Excellent Sir : I had the honor to receive, last evening, your excellency's communication of the 9th instant, in regard to the six sail- ors on board the ponton Villavicencio. I am sorry to learn that these men belonged to the Jasper, that landed negroes at Baylen ; though I feel gratified that their personal safety is secured. They have no doubt undergone great anxiety and trouble, and their being now subjected to CASE OF THE BLACK WARRIOR, ETC 277 the delays consequent to a judicial investigation will make them feel very uneasy, even in the case of their being eventually acquitted, as I hope they will be, for I am well convinced that they, as well as the other three who have been so long in prison, and at present undergoing trial, were deceived by the parties interested in the vessel, and that they were innocent of all intention to infringe the laws of their country or of Spain. I trust that the proceedings in regard to these six men will not cause more delay to prevent the case of the other three from being brought to an immediate termination. I will respectfully solicit of your excel- lency to use your powerful influence to bring their trials to a prompt conclusion. I have the honor to be, very respectfully, your excellency's obedient servant, WM. H. ROBERTSON, Commercial Agent in charge of the Consulate. His Excellency Senor Don Valentin Canedo, Governor and Captain General of the Island of Cuba. Most Powerful Lord : Don Jose Gregorio Ibarrola, an attorney of this royal superior court, and guardian (curador) appointed by the court, of the seamen, William Atkins', William Freeburn, and Harvey C. Parks, in the proceedings carried on before this superior court, about the landing of two hundred and eighty bozal negroes at a place called Baylen, in the manner most conformable to law, says : that the parties whom I defend have been informed of the charge made by the fiscal (prosecuting attorney) asking that the penalty of four years' im- prisonment be decreed against them, unless they prove, they having confessed that they formed a part of the crew of the Jasper, that when they embarked at New York, they did so in the understanding that that vessel was going to Africa after goods of lawful trade ; not on account of the necessity in which every judicial defender is, of exhaust- ing every means for the saving of his client, but because, sincerely speaking, the opinion of the learned and zealous representative of pub- lic vengeance (vindicta publica) appears exaggerated, that I will try to demonstrate that the unfortunate minors, victims and not criminals, in the affair of the Jasper, ought to be absolved from all culpability and penalty, declaring, at the same time, their right to be in force, that they may exercise it against whom it may concern. The attorney for the prosecution, to whose strenuous efforts is due the discovery of such facts as the finding of the hull of the vessel that was burnt, and of another fact not mentioned in the process, has shown, in his severe style, the profound aversion with which he looks upon the filthy traffic in slaves, seconding the noble conduct of the president of this court, Don Valentin Canedo, and has acknowledged, with the immense pain with which hon- est men in Cuba must confess it, that there are many parties interested in the traffic that make the investigation of the facts impossible. Well, if opinion is to be considered in these cases, allow me also to allege the opinion of the country of the accused. Were they natives of the southern States, there might exist a presumption against them ; but 278 CASE OF THE BLACK WARRIOR, ETC. t hey are all, most powerful lord, natives of the northern States, where a hatred to the institution of slavery grows in the midst of attempts of future and serious disturbances to the American Union. The first rea- son appearing to establish their innocence, is their birth. But it will be said that they have confessed the crime, or the infringement of the Spanish law. The assertion is not entirely exact. The confession that law requires is not that of a fact, but that of an intention. The fact always exists ; it is one and invariable ; it is sign of matter, but not of the spirit or of the will. The accused might stand convicted, but not confessed (confesos.) In the proceedings there is not one single datum besides the declarations of the prisoners, and not one of their letters says that they went to Africa to bring slaves. Even if an explicit con- fession existed, the true meaning of the law of partida would not justify the punishment of the supposed criminals, because the mere confession is not a sufficient foundation, according to the Spanish law. As long as the voluntary infringement of the penal law is not proved, there is no crime ; for the same reason that the punishment is possible, just, and necessary, is the proof possible, necessary, and just. Presumption is as moral for the judge, as inefficient for punishment. The confession upon which the report I am answering is based, does not exist in its judicial form, as the only thing the accused have said is, that they be- longed to the crew of a vessel that sailed from New York, bound to the coast of Africa ; there exists nothing more than their declarations upon the subject. In this manner is their existence in the said vessel explained : The accused were captured or arrested at the Cape San Antonio by two matriculated of the Spanish mercantile marine, and when they were first examined they had no discrepancy in their statements as to the circumstances that brought them to this country. They stated that they were arrested on a morning of May last, when they had disem- barked at Cape San Antonio to provide themselves with water and provisions ; that they had arrived at that place from some sixty miles to the eastward of the southern coast, and that the boat which conveyed them belonged to the American ^bark Jasper, of which they had formed part of the crew, and which had come to these waters from the coast of Africa with a cargo of' bozal negroes, numbering about three hundred, that had been landed on the said southern coast, where the vessel was burnt without their knowing by whose order ; they said that the negroes had been landed in the boats of the bark and in three other boats that came from the shore ; they are ignorant who were the parties interested in the cargo. The vessel did not sail from any point of the island of Cuba, but from New York, to make a voyage to Sierra Leone, for the purpose of bringing goods of lawful trade, and no insinu- ation was made to them about negroes, neither did they know of such' negroes until they saw them in the vessel. The narrative that has just been read has all verisimilitude imaginable. Those who fitted out or purchased the vessel were m no necessity of revealing the object of the voyage to the sailors, who were instruments and not agents in the busi- ness. It suited the interest of the purchasers that the American flag should protect their crime, because, as the vessel could not be visited, she went safely to the coast of Africa itself;- but the American officers, who CASE OF THE BLACK WARRIOR, ETC 279 were engaged to that place to deliver the vessel to the purchasers, would not continue their services any further after they learned the ob- ject of the voyage. The captain remained on shore at thejjace they touched at off the coast, and the mate had previously lei; and the command was taken as captain, and the capacity of first and second mates, by the Spaniards mentioned in the declarations. The unfortu- nate seamen, deceived and taken by surprise, had no other resource but to yield to the law of necessity ; neither could they appeal to force, had rebellion occurred to their minds as a resource, as it may be seen in the declarations that the Spaniards and Portuguese exceeded the sailors in authority and numbers. It was necessary to resign them- selves to the imperious necessity that oppressed them, till the moment of their arrival and separation in the boat. Even then they were warned to be silent, to continue oppressing their minds, and threatening them with serious troubles if they made known what had taken place, which they are now verifying in a prison to their misfortune. In regard to the truthfulness of the declarations, other data appear in the proceedings that destroy the suspicion that they are mere excuses. The consul general of England, on participating to the government the imprisonment of the three sailors, about whom governmental communi- cations had already taken place, states the facts as repeated by the accused, and these coincide with those opinions — not only the official communication of the consul or commercial agent of the United States, but also that of the commanding officer of the United States sloop-of-war Albany, in which he affirms by a perfect conviction that the American citi- zens imprisoned have not intended to infringe the laws of Spain nor of the United States, and that therefore they were deceived by the parties inter- ested in the expedition ; that it was necessary that these latter should be punished for their nefarious and iniquitous conduct ; that, consider- ing the sailors innocent, he claimed them, and requested of the Spanish government to have arrested the six individuals remaining, who, he understood, were on Salt Key. These statements of three foreign func- tionaries in favor of the intention of my clients give credit to their asser- tion. Were not the presumption of innocence sufficient, unless a criminal intention shall be proved ? and were it for the sameness of the declara- tions, which appear as if they had been copied from each other ? In the act of taking their declarations, the accused were reproved on their defending themselves from capability, without any other foundation than the fact of their not having presented themselves to the authorities when they found themselves free from coaction, to prosecute the authors of the evils they had undergone. The censure will become of no force when it is observed — 1st. That the}^ were ignorant who were the parties^ interested in the vessel. 2d. That they were made to believe that if they confessed what had taken place they would fare badly. 3d. That in their country they had the right to make claims against those who had deceived them there, by means more expeditious and in accord- ance with their habits, customs, and laws. Had they believed themselves to be guilty, they would not have landed in a country where everything was strange to them, and where the first suspicion they were going to create was by their use of the English language, which was the cause of their being observed and detained, 280 CASE OF THE BLACK WARRIOR, ETC. as one of the captors has said. They believed themselves to be at the worst iruthe case of deserted seamen, who, by an article of the treaty in force, ^e to be mutually delivered up ; but they forgot that, there not existing Prole d'equipage, (crew list,) the delivery could not be effected, and now they are undergoing the rigors of a jail. Your highness is well aware that in criminal cases it is dangerous to give estimation to presumptions not corroborated by full proofs. His- tory presents us examples that are now weighing upon the public con- science of nations like grave-stones. It is vain that memories have been honored and posterity satisfied, if the evil has been unavoidable. This _ case itself presents serious suspicions against a Spanish high functionary and all his subordinates at New Filipinas. It has been proved that the cargo was landed in that territory, and that the vessel was burnt in a bay ; and, what is still more scandalous, an accusation by the English consul about the delivery of money to pay for those in- fringements has been confirmed; and still the facts are explained, and your highness has discontinued all proceedings in regard to those indi- viduals. The most dishonorable part of the affair — that of the partici- pation of a price for consenting to the landing — I have heard the friends of Ayllon explain in the most satisfactory manner. The lieutenant governor had for enemies those whom he prevented from committing misdemeanors, and these enemies either calumniated him, or supposed that the money that had been remitted without mys- tery, there being no motive for concealment from the public eye, was the price of the crime. The facts have not been blotted out ; the suspicions could not be completely removed ; and the doctrines of the fiscal (attorney for the prosecution) I adopt as positive. As long as there is no proof, pre- sumptions may exist in vain. My clients have not confessed a crime ; they have made known one fact, which is made apparent only in their declarations. Their situation cannot be made more painful than it has been till now. Were it fully established that the three sailors belonged of their own will to the crew of the bark Jasper, the penalty de- manded by the fiscal against them would still be excessive. The law makes no mention of the case in point. It was very difficult to be fore- seen, as it was very difficult to conceive of the frank statement made by the three foreigners who are the subjects of the present proceedings. The law has considered that the capture may be made by cruisers of a vessel with bozal negroes on board, or already without them ; for the two cases it has indicated different penalties to the captain and others of the crew. What penalty does the law impose against a seaman who is captured taking provisions to return to his country, and by no means on board of a vessel ? What penalty does the law indicate against him who acknowledges that he was an involuntary seaman of a vessel that has disappeared? If the law, in the case of the vessel being captured without negroes, has diminished the penalty one half, and even more, how is it that four years of imprisonment are demanded, when the law imposes no penalty in the strange case now in question ? If any penalty is to be imposed, it should be that of the fourth article of the law of 1845, or, what is the CASE OF THE BLACK WARRIOR, ETC 281 same, that of one year's imprisonment, as it is the minimum between the various cases. It is not, however, applicable to the present ques- tion, because no proof exists, no vessel has been captured, no negroes have been found, nor have the local authorities been punished for the infringement or negligence. Nothing exists but the statements of the accused, which have already been analyzed. In short, there exists only one fact demonstrated, which is, that three •American seamen have re- vealed and given the means to investigate that they have been by vio- lence brought in a slaver vessel that disembarked her cargo in Cuba ; that in virtue of the eighth article of the treaty between Spain and the United States of 27th October, 1795, they believed themselves author- ized on account of the greater penalty suffered, urgent necessity, to come ashore for provisions ; that, resting on the personal provisions of the in- ternational law of their country, they believe themselves to have the right of prosecuting their deceivers, and did not presume that they would be subjected to suffering for their forcible permanency on board of the slave ship ; that by virtue of their condition as sailors, they sup- posed, in conformity to the thirteenth article of the treaty of 22d Feb ruary, 1819, that they would be delivered up to their consul, as they had been looked upon as deserters, about which they subsequently changed their purpose, but not their condition. On making these suggestions, it is my mind to demonstrate that, on the part of my clients, no law of the country has been infringed ; that they were not voluntary slavers, nor have they exercised rights which they had not when captured. It is true, that by reporting themselves deserters they did not tell the truth, but they have not failed against truth in any solemn act. Therefore, I petition of your highness to be pleased to decree and ordain in conformity to what I have solicited at the commencement, and dispose, in consequence, that the three prisoners be delivered to the American consul, as has been asked by the com- mander of the Albany, that they may be transmitted to New York, there to make the investigations already indicated, so that the accused may be allowed the damages they have suffered. Mr. Marcy to Mr. O 1 Conor. Department of State, Washington, November 16, 1853. Sir: Information has been received at this department, that the Spanish captain of the barque "Jasper" is now staying with his wife, under the assumed name of .**.** * *, either at the New York or St. Nicholas Hotel, and that he is engaged in fitting out another expedition to the coast of Africa. This intelligence is deemed of sufficient im- portance to be communicated to you without delay. I am, sir, &c, W. L. MARCY. Charles O'Conor, Esq., U. S. District Attorney, New York. 282 CASE OF THE BLACK WARRIOR, ETC. Mr. Clayton, United States Consul, to Mr. Marcy. [Extract.] Consulate of the United States, Havana, December, 5, 1853. Dear Sir * •* * * * * In your dispatch of the 9th ultimo, relative to the American seamen imprisoned here, you refer to the 7th article of the treaty of 1795. I learn from various sources, among others from a letter of the late consul Sharkey to your department, of date the 15th of January, 1853, No. 23, that the authorities of this island do not regard that treaty as having any force or effect here. Whether this view be correct or not, is of little practical import so long as they adhere to it. It furnishes reason for an effort to form a new treaty, or to get this recognized, expressly, as extending to all the Spanish islands and dependencies. ***## #*# I have the honor to be, &c, ALEX. M. CLAYTON, U. S. Consul, Havana. Hon. W. L. Marcy, Secretary of State. Mr. Robertson to Mr. Marcy. [Extract.] Consulate of the United States, Havana, December 21, 1853. Sir : 1 received last evening notes from several of the prisoners, beg- ging me to come and see them ; that their condition was becoming every day more desperate. I went, and took them some money and other articles necessary for their comfort. The three prisoners that were, first captured had some money of their own, which they placed in my hands, and I have been giving it to them in small sums since. The other six had not a cent when they were, brought ;. they had been robbed, and spent every dollar they had. I have advanced to the second mate, for the benefit of the six, $17, and have directed the sec- retary to charge it to me, until I was authorized by the department to charge it to the government, which I hope may be allowed, in con- sideration of the circumstances. ********** The fiscal (prosecuting officer) has asked that the six be condemned to four years' imprisoment also, on the extraordinary grounds that their testimony agrees with that of the other three. The prisoners informed me that there had been many men confined in the same room with them, who had been placed there at different times, having been taken in the act of landing negroes, all of whom had been released, as they weie required for other slavers fitting out; and that there was a large crew there with them waiting for a vessel fitting out in the harbor, to sail in a week, when they would go on board. CASE OF THE BLACK WARRIOR, ETC 283 I am not disposed to think that these men will be condemned. I cannot think that this government will commit such an act. Mr. Clayton wrote to the Captain General on the 7th in behalf of these men, but this office has not yet been favored with a reply. I en- close a copy of Mr. Clayton's communication. 1 have the honor to be, sir, vour most obedient servant, WM. H. ROBERTSON, Acting Cojisul. Hon. Wm L. Marcy, Secretary of State, fyc Consulate of the United States, Havana, December 7, 1853. Most Excellent Sir : I have been instructed by the government of the United States to solicit the attention of your excellence' to the case of nine American seamen who have been imprisoned in Havana for some time past, charged with a violation of the laws of Spain in regard to the slave trade. I understand that three of the nine have had a trial, but that no judgment will be rendered in the matter until the other six have been likewise tried. In their depositions they have declared that they shipped upon the vessel without knowing the purpose of the voyage, and that from necessity, and not from choice, they were against their will compelled to do duty on the return voyage as sailors. There is no testimony op- posed to their statement. It would seem, then, from these facts, that they acted without criminal intent, and are innocent in point of fact. The government of the United States has been given to understand that certain subjects of Spain who were arrested and imprisoned for the same offence had been set at liberty without trial. It would tend very much to promote the harmony and good feeling which now subsist between the two governments if the same course were pursued in refer- ence to the American seamen. This act of courtesy in the commence- ment of your excellency's administration would be property appre- ciated by the American government, and would no doubt meet with a suitable reciprocity if occasion should offer. I am directed, also, to state to your excellency that if this request should be granted, and the prisoners delivered to an American officer, they will be carried to the city of New York for the purpose of giving evidence there against the parties supposed to be concerned in fitting out the vessel on which they shipped, so that the reallv guiltv may be punished. A reply to this communication at as early a day as may be compatible with the convenience of your excellency will be regarded as an especial kindness. I have the honor to be, &c., ALEX. M. CLAYTON. His Excellency the Marquis de la Pezuela, Governor and Captain General of the Island of Cuba. §'c. §c 284 CASE OF THE BLACK WARRIOR, ETC Mr. Robertson to Mr. Marcy. [No. 12.] Consulate of the United States, Havana, January 5, 1854. Sir : On the 31st ult. I received from the Captain General a reply to Mr. Clayton's communication of the 7th, (of which I sent you a cop} r on the 21st ultimo,) requesting the release of the American seamen, the crew of the bark Jasper. Accomparrying this I send a copy of the answer, by which you will perceive that the Captain General took um- brage at certain expressions in Mr. Clayton's letter, and that he has de- clined to accede to the request. I have replied, on the 3d instant, to his excellency's letter, and now forward you a copy of mine, hoping that the contents thereof will meet your approbation. I entertain very little doubt that the seamen will be liberated, and I am inclined to think my letter may hasten that result. If such is to be the case, I sincerely hope it may be before Judge Clayton's successor arrives, as I should regret extremely that any other should have the gratification of leading them forth to liberty from the unjust imprison- ment, and sending them home to their families. If success is obtained by me, I shall consider myself amply compensated for many days of toil in their behalf. I have the honor to be, sir, with great- respect, your most obedient spfvirit WILLIAM H. ROBERTSON, Acting Consul. Hon. William L. Marcy, Secretary of State of the United States, Washington. [Translation.] {L. S.] EVER FAITHFUL ISLAND OF CUBA.— GOVERNMENT AND CAPTAIN GENERALCY, OFFICE OF THE POLITICAL SECRETARY, SECTION FIFTH. Having transmitted to the royal " audiencia pretorial" (superior court) your lordship's official communication of the 7th instant, in ref- erence to several seamen of your nation belonging to the American bark Jasper, that discharged 280 bozal negroes in the Bight of Cor- tes, jurisdiction of Pinar del Rio, upon which occurrence a criminal proceeding is pending in the first chamber of justice of said superior court, to which they are subjected, and they are imprisoned in the royal jail, the court have informed me, under date of the 23d, that the course of the proceedings, which are in conformity to our judicial forms, had not to that day suffered but the requisite delays on which the fate itself of said sailors is concerned, the same having passed to the lawyer of three of the last sjx to answer to the charges of the "fis- cal," (prosecuting officer,) conformable to the penal law of the matter. In such understanding, and they being considered in the same light as Spanish subjects, and with the same guarantees in the process, of which CASE OF THE BLACK WARRIOR, ETC. 285 you are aware, as you have been on the look-out, and have even fur- nished them for their defence one of the distinguished lawyers of tnis capital for his ability and zeal in the exercise of his profession, it is to me very strange that it should have been given to understand to your government that some Spanish subjects, initiated and imprisoned for the same offence, had obtained from the tribunal a release from jail, without being tried. This odious difference, and the want of zeal for the right adminis- tration of justice that such a precedent involves, causes a serious offence to the well-known uprightness of the royal audiencia, and I therefore repel it. Consequently, and there not existing good motives for the release that your lordship claims, and less for your government to make depend, from the result of your lordship's exertions in this affair, the promotion of the harmony and good relations that subsist between it and that of my august sovereign, I regret that I cannot accede to the favor that your lordship solicts in your said communication that I am now an- swering. God preserve you many years. Havana, December 31, 1853. The MARQUIS DE LA PEZUELA. The Commercial Agent in charge of the Consulate of the United States. Consulate of the United States, Havana, January 3, 1854. Most Excellent Sir : I had the honor to receive, on the evening of the 31st ultimo, your excellency's official communication of that date, in reply to one from this consulate of the 7th of the same month, written by order of the government of the United States, and contain- ing a request that the nine American seamen who had the misfortune to come to this island in the bark Jasper, should be set at liberty. These seamen have undergone long imprisonment and suffering. As no evidence has been presented to contradict their statements, in which they all have declared their innocence of any intent to infringe the laws of Spain, my government came to the conclusion that they were inno- cent in point of fact. It has never been intended by the government or by this consulate to assert that the judicial forms of the country have not been complied \^th in the case. I am aware that, so far as regards the prisoners, those forms have been observed. Still, my government deems it very strange that the Spanish subjects, and others who belonged to the Jas- per, and who were really the guilty parties, have escaped and that only the American part of the crew have been made to suffer for the act of landing the slaves. Your excellency feels indignant at the information given to my gov- ernment that several Spanish subjects, arrested and imprisoned for the same crime, had been released without being tried, as it involves a a serious offence against the well-known uprightness of the ro} r al audi- 286 CASE OF THE BLACK WARRIOR, ETC. encia. I beg to assure your excellency that no offence was intended by' Mr. Clayton when he made the statement in his letter. He desired to convey to your excellency the fact that the government of the United States having been given to understand that such releases had taken place. The government continually receives information from this island that, notwithstanding all the vigilance and energy of the Spanish authorities and naval forces, as well as the efforts of the British cruis- ers, many cargoes of slaves are landed upon the island, and very few captures are made, and the parties concerned and engaged in such im- ^ portations are not discovered. This leads the government of the United States to apprehend that distinctions are made to the prejudice of those men because they are Americans, or call themselves such. It is the wish and intention of the President of the United States to preserve and promote the harmony and good relations that have so long subsisted between his government and that of her Catholic Majes- ty ; but, at the same time, he stands pledged before the country, and the world, to extend his protection to the citizens of the United States abroad, when such citizens find themselves in difficulty not brought on by an intentional disregard or contempt of the laws of other countries. He cannot make distinctions between individuals — it makes no difference if they are sailors or senators ; all are equally entitled to the watchful care and protection of the government. From the nature of the last dispatch received at this office from the State Department, I am led to believe that my government considers that all the exertions made by this consulate to obtain the release of those seamen have been unnecessarily and coldly diregarded. I there- fore deeply regret that your excellency should have come to the deter- mination not to accede to the last request ; that determination will be transmitted to my government. I sincerely hope that it may not pro- duce a weakening effect upon the relations between the two govern- ments. I have the honor to be, with great respect, your excellency's very obedient servant, WM. H. ROBERTSON, Vice Commercial Agent in charge of Consulate. His Excellency the Marquis de la Pezuela, Governor, Captain General, Sfc, Sfc, Sfc, of the Island of Cuba. Mr. Robertson to Mr. Marcy. [No. 18.] Consulate of the United States, Havana, January 12, 1854. Sir: I called } r esterday at the jail for the purpose of taking some money and necessaries to the unfortunate American seamen. One of them handed me the inclosed note, by which you will perceive that all but two of the Spanish prisoners that were there for being engaged in the slave trade have been released. Our seamen told me that those parties had stated that they were about to embark for the coast imme- CASE OF THE BLACK WARRIOR, ETC 287 diately. They likewise informed me that they had lately passed two entire days without food of any kind. They exhibited to me their dinner of that day, which consisted of about two ounces of bad meat, and a quarter of" a plate of dirty-looking rice. Their complaints are very strong. I have no answer to the communication I wrote to the Captain General on the subject of these men, and presume he is waiting for the action of the superior court. I have the honor to be, sir, with great respect, your obedient servant, WM. H. ROBERTSON, Acting Consul. Hon. Wm. L. Marcy, Secretary of State of the United States, Washington. Havana, January 10, 1854. Dear Sir : I wish to inform you that they set all the slaves at liberty on Monday, but two. On Sunday morning the prisoners had a row about their rations, and sent for the governor, and told him that there was not enough there for everybody ; there was wanting thirty men's rations, so we had no breakfast that morning. The meat was so stink- ing that we could not bear the smell of it ; the same rice was sent up for dinner ; there, was not enough for everybody, and, feing strangers, of course had to go without ; so all we had was about two ounces of bread. We hardly get enough any day to cover the bottom of our plates — say about "five or six mouthfuls. There was a man stabbed here on Monday night ; he was carried to the hospital. On Tuesday morning there was a man beat nearly to death ; he struck the man that was serving out the coffee, because he would not give him any ; he now lies in the hospital in a very precarious state ; if he lives, he will never be of any use to himself; he is completely ruined for life. You would oblige me if you would let me have v sev- enteen dollars, and two or three papers, if you have them to spare ; they will keep us from worrying so much. Hoping to have the pleasure of seeing you soon, I remain, yours respectfully, WILLIAM ATKINS. Mr. Robertsons certificate. Consulate of the United States, Havana. On the day of the date hereof, I, William H. Robertson, acting con- sul of the United States of America for Havana, at about 9 o'clock a. m., called at the royal jail of said city, where the American seamen, William Freeburn, William Atkins, and Harvey C. Parks, are impris- oned, and asked them for the sheet of paper hereto annexed, contain- ing one interrogatory on each page of the same, which I had left with them some days since, requiring them to write their answers in continu- ation. They handed me the said sheet; and being by me sworn, 288 CASE OF THE BLACK WARRIOR, ETC through the grates of their cell, they, said seamen, solemnly and sin- cerely declared that the answers they have appended to my interroga- tories are, to the best of their knowledge and belief, true and correct. In testimony whereof, I hereunto set my hand, and affix the seal of r -, my office at Havana, this sixteenth day of January, Anno *- ' "-• Domino, eighteen hundred and fifty-four. WM. H. ROBERTSON. Interrogatories propounded by William H. Robertson, acting consul of the United States at Havana., to William Atkins, William Freeburn, and Harvey C. Paries, seamen now in the public jail of Havana, and to be answered by said seamen. 1. How many individuals, Spanish or other nations, (as near as 3 r ou can judge,) have been in the jail since your confinement in it, for being concerned or engaged in the slave trade ? If any have been, and you know the names and other circumstances of them, or of any part of them, state the same. In answer to the above, to our knowledge, there have been thirty-two prisoners, not including ourselves, all Spanish but four Manilla men ; all have brought slaves from the coast except eight that were captured by an English man-of-war, when they were about proceeding to the coast ; they are captain and seven others, sailors, all Spanish ; their names we do not know. There has been a crew of twenty confined in the same apartment that we are in : they were captured on the south coast of this island. Previous to their capture they landed two hundred and fifty slaves that they brought from the coast of Africa, and set fire to the vessel, a schooner ; we do not know the full names of any of them ; four of them are Manilla men — the rest are all Spanish. They landed their slaves about one month after the Jasper's slaves were landed ; there were also two for assisting to land slaves. There is a Spanish mate belonging to the ship Ellen Parks, sailed 13th December, 1852, from New York to Mozambique, back to the island of Cuba, with eleven hundred negroes ; none of the crew were arrested that be- longed to the ship. 2. How many of said individuals do you believe (from information received by you, and that you may consider entitled to credence) have been tried by the courts ? If you know the names of all, or part of those tried, state them. The crew of twenty that belonged to the schooner has been tried by the court ; four were liberated on the plea that they were passengers from the coast. We cannot give their names, because we do not know them ; one of the four that were liberated as passengers, spoke pretty good English ; from him we gained our information. We don't know that there has been any more tried by the court, except it be the Span- ish mate, whom they wish to serve six months in one of their men-of- war, but to which he says he will not give his consent. 3. Have any such individuals left the prison ? In what way did they leave it? In what number at any one time ? The captain and seven sailors that were arrested by the English CASE OP THE BLACK WARRIOR, ETC 289 man-of-war have left the prison, but in what way we do not know; they were not in the same apartment with us. Four of the twenty were liberated as before mentioned; the remain- ing sixteen were liberated about two weeks since. The two men for assisting to land slaves have also left the prison, as we understand — have been liberated. 4. State, as near as you can, their history, and conversations relating to the cause of their imprisonment, and other things connected with it and their release, during the time that such persons were confined in the jail. The crew of the schooner that brought two hundred and fifty ne- groes state, in their conversations, that they left the south side of this island, having previously shipped for the slave trade in Havana, pro- ceeded to the coast of Africa, there shipped four more men that had been engaged in the traffic on shore ; took two hundred and fifty ne- groes on board, and came to this island and landed them, and set fire to the schooner close to the place where the Jasper was burnt ; they told us that it was through us that they were arrested ; they said that the officers that were in search of the remainder of our crew happened to come across them, and took them in custody ; however, they said it did not make much difference to them — they were getting the same pay that they got all the voyage, and good board found them from outside the prison, which we know to be the fact ; they said that when they were asked where they were from, they did not deny coming from the coast of Africa, but said they brought no negroes ; this they told to the authorities. The four that got clear at first, as passengers, were no more passengers than the rest ; they got the same wages, which was forty-five dollars a month and a negro each ; so they told us in their conversation. WILLIAM FREEBURN. WILLIAM ATKINS. HARVEY C. PARKS. Mr. Marcy to Mr. Robertson. [Extract.] Department of State, Washington, January 18, 1854. Sir: * * * * * * Your letter to the Marquis de la Pezuela, in reply to his communica- tion of the 31st of December, in respect to the American sailors form- ing a. part of the crew of the " Jasper," and now confined in Havana, receives the entire approval of the department. The answer, however, which the Captain General has given to the letter addressed to him by the late consul, is not fully satisfactory to the President. It will be remembered that some of these men have been imprisoned more than eight months, awaiting a decision in their case by the Spanish 19 290 CASE OF THE BLACK WARRIOR, ETC. authorities ; that their condition is one of great hardship and extreme suffering, confined as they have been in a tropical climate, through a sickly season, in a Cuban prison. No wonder they declare that "their condition is becoming every clay more desperate ! " Had it not been for your own friendly and zealous services, and the pecuniary relief which, as the department has learned, you have extended to them, their fate would have been wretched indeed. The protracted delay attending the official proceedings in their case has excited sympathy in their behalf in this country, where the right is not questioned of requiring a strict account from the executive govern- ment of all circumstances that appear to be an infringement by foreign governments of the rights of American citizens. As you well remark in your letter of the 3d of January, it is the wish and intention of the President to preserve and promote the harmony and good relations that have so long subsisted between this government and that of her Catholic Majesty ; but, at the same time, he stands pledged before the country and the world to extend his protection to citizens of the United States abroad, when such citizens find themselves in difficulties not brought on by any intentional disregard or contempt of the laws of other countries. He cannot make distinctions between individuals — all are equally entitled to the watchful care and protection of the government. Trusting in the rectitude of the Cuban authorities, and their desire to administer impartial justice in the judicial tribunals of the island, the President has refrained in this case, hitherto, from adopting any course that might place the Cuban authorities in an unfavorable light before the American people, or disturb the harmony now subsisting between the United States and Spain ; but forbearance towards a foreign power may be carried to an extent which is inconsistent with the duty which the President owes to his own countrymen. He still trusts that such may not be the case in relation to these men ; but the warm interest taken in their fate by persons of high standing and in- fluence in this country, as well as a regard for right and justice, de- */ mand, as the President believes, more attention on the part of the Cuban authorities to this case, and a speedy and just settlement of it, if they desire to preserve friendly feelings between the two countries. You will request from the proper authorities, unless the trial be very shortly terminated, authenticated copies of the charges against these American citizens, and the proofs by which it is supposed they can be sustained, for transmission to this department, to be laid before the President. Your especial attention is likewise called to the instructions given to the late consul, Mr. Clayton, on the 8th of November last, in relation to the strict observance of the 7th article of the treaty of 1795, relative to the rights (Of persons prosecuted for alleged offences. # .# * # # ' # * * I am, sir, &c„ &c, W. L. MARCY. W. H. Robertson, Esq., Acting United Mates Consul, Havana, Cuba. CASE OF THE BLACK WARRIOR, ETC. 291 Mr. Robertson to Mr. Marcy. [Extract.] [No. 20.] Consulate of the United States, Havana, January 21, 1854. g IR .####### I have received no reply to ray last letter to the Captain General in behalf of the imprisoned seamen. I am informed that the court, on the 17th instant, decreed that they should be allowed fifteen days to pro- duce their proofs to the judge commissioner. This seems to be an end- less affair. The unfortunate men were all alive yesterday, but several of them are in a feeble state of health. # # * « # I have the honor to be, sir, with great respect, your obedient servant, W. H. ROBERTSON, Acting Consul. Hon. Wm. L. Marcy, Secretary of State. Mr. Marcy to Mr. Florence. Department of State, Washington, February 3, 1854. Sir : In reply to the inquiry made by Mr. J. Cowperthwaite, of Phil- adelphia, in regard to the present condition of the American sailors now confined in Havana, charged with having been engaged in the slave trade, I transmit, herewith, extracts from two recent dispatches of Mr. Robertson, the acting United States consul, which contain the latest information on the subject in possession of the department. I am, sir, &c, W. L. MARCY. Hon. T. B. Florence, House of Representatives. Mr. Robertson to Mr. Marcy. [Extract.] [No. 24.] Consulate of the United States, Havana, February 7, 1854. Sir: ##*#### Allow me, sir, to express to you the great satisfaction I have experi- enced at the contents of your dispatch of the 18th January, as it con- veys to me your approbation of my conduct in regard to the unfortunate seamen who have been so long suffering under a most unjust imprison- 292 CASE OP THE BLACK WARRIOR, ETC ment. Be so good as to accept my sincere thanks for your kindness. Since the receipt of" your instructions, I have not addressed the Captain General. The trial of the prisoners has been consummated. I received * * * information that they are to be arraigned before the superior court at the close of this or the beginning of next week, to receive sen- tence. It is not known what the sentence will be. Should I discover any more delay, I will then lay before the Captain General the views of the department, that he may know what the con- sequences of the policy of his government will be. Whether the men are condemned or not, I shall demand an authenticated copy of the pro- ceedings against them, to forward to the department. There is not one particle of evidence against the seamen but their own depositions. I have very strong doubts that the copy of these pro- ceedings will be furnished, but I shall, of course, demand it. The Captain General has not yet been pleased to reply to my letter, which you have done me the honor to commend. I have the honor to be, sir, with great respect, your obedient servant, WM. H. ROBERTSON, Acting Consul. Hon. Wm. L. Marcy, Secretary of State of the United States, Washington. Mr. Robertson to Mr. Marcy. [Extract.] [No. 27.] Consulate of the United States, Havana, February 14, 1854. Sir : I have the honor, in my dispatch No. 24, dated 7th instant, and forwarded per steamer Isabel to Charleston, to acknowledge the receipt of yonr dispatches of the 18th and 24th ultimo. I stated to you that if I discovered any more delay in the case of the imprisoned American seamen, I would lay your views, in regard to their case, before the Captain General. Finding, on the evening of last Saturday, that no decision had been come to by the authorities, I addressed a communication, a copy of which I now have the honor to enclose herewith, hoping that it may also meet your approbation. I cannot withhold from you, sir, my feelings of indignation at the extraordinary delays and sufferings that these American citizens have been made to experience in being confined in cells with upwards of one hundred and fifty criminals, charged with the highest to the lowest grades of crime. I have repeatedly remonstrated, to the Captain Gen- eral, against this treatment of men who were not yet declared guilty, but very little, or rather no notice, has been taken of my remonstrances, except once, when General Cailedo candidly replied that the jail was the usual place where criminals, and those that were believed to be such, were confined, and that their situation could not be changed. In CASE OF THE BLACK WARRIOR, ETC 293 this manner the accused are made to undergo severe punishment for a long time before their cases are decided. As for the food allowed the prisoners, I have seen it once or twice, and I assure you that it was not only insufficient in quantity, but of the very worst quality. It will probably be in my power to send you shortly a detailed ac- count of the whole of this affair, from the time of the Jasper's arrival on the coast of Cuba, with the names of the owners and the other par- ties concerned in the cargo. I have the honor to be sir, with great respect, your very obedient •servant, WILLIAM H. ROBERTSON, Acting Consul. Hon. William L. Marcy, Secretary of State of the United States, Washington. Consulate of the United States, Havana, February 11, 1854. Most Excellent Sir : It is now upwards of one month since I had the honor of addressing your excellency on the subject of the unfortunate American seamen composing the crew of the bark Jasper, confined in the jail — some of them for more than eight months past — without any charge against them other than their own declarations, which clearly prove their innocence. Copies of your excellency's official letter, in an- swer to that of the consul, Mr. Clayton, and of mine to your excellency, • of the 3d of January ultimo, on that subject, were, at the propei time, transmitted to my government ; and, a few days since, I received a ■dispatch from the honorable the Secretary of State, wherein, among other things, I was informed that my communication to }rour excel- lency of the 3d of January " has received the entire approbation of the department," and that the contents of your excellency's letter of the 31st December " is not fully satisfactory to the President." Although my communication before mentioned has received, so far as I know, no notice from your excellency, I have refrained from making any further observations, in the hope that my unfortunate coun- trymen would, ere this, have been placed at my disposal ; but finding that week after week has passed without a satisfactory result, but that, ■on the contrary, these men are still imprisoned, associated with crimi- nals charged with the highest to the lowest of crimes ; that they are un- dergoing such punishment as criminals justly condemned only should be made to undergo ; and that their sufferings are daily increasing — for even their food has been reduced to such a small quantity, and of such bad quality, that they would starve to death, were it not for the pe- cuniary relief afforded them by this consulate — I cnnnot, after hearing their just complaints, remain silent any longer. I deem it to be my bounden duty to communicate to your excellency the views of my government in regard to this matter. The honorable the Secretary of State, under date of 18th of January ultimo, said to me as follows : " It will be remembered that some of 294 CASE OF THE BLACK WARRIOR, ETC these men have been imprisoned more than eight months, awaiting a decision in their case by the Spanish authorities ; that their condition is one of great hardship and extreme suffering, confined, as they have been, in a tropical climate, through a sickly season, in a Cuban prison. No wonder they declare that their condition is becoming every day more desperate. Had it not been for your friendly and zealous services, and the pecuniary relief which, as the department has learned, you have extended to them, their fate would have been wretched indeed. " The protracted delay attending the official proceedings in their case has excited sympathy in their behalf in this country, where the right is not questioned of requiring a strict account from the executive gov- ernment of all circumstances that appear to be an infringement by for- eign governments of the rights of American citizens. " As you well remark in your letter of the 3d of January, it is the wish and intention of the President to preserve and promote the har- mony and good relations that have so long subsisted between this gov- ernment and that of her Catholic Majesty ; but, at the same time, he stands pledged before the country and the world to extend his protec- tion to citizens of the United States abroad, when such citizens find themselves in difficulties not brought on by an intentional disregard or contempt of the laws of other countries. He cannot make distinctions between individuals ; all are equally entitled to the watchful care and protection of the government." Your excellency will perceive that the foregoing last paragraph con- tains almost the very words used in my letter above referred to ; it will show that they were not used at random, but expressive of the spirit of my country's institutions, and of the policy of the adminis- tration in whose hands the destinies of the nation have been placed by the suffrages of the people. The Secretary of State continues : " Trusting in the rectitude of the Cuban authorities, and their desire to administer impartial justice in the judicial tribunals of the island, the President has refrained in this case, hitherto, from adopting any course that might place the Cuban authorities in an unfavorable light before the American people, or dis- turb the harmony now subsisting between the United States and Spain. But forbearance towards a foreign power may be carried to an extent which is inconsistent with the duty which the President owes to his countrymen. He still trusts that such may not be the case in relation to these American seamen ; but the warm interest taken in their fate by persons of high standing and influence in this country, as well as a regard for right and justice, demand, as the President believes, more attention on the part of the Cuban authorities to this case, and a speedy and just settlement of it, if they desire to preserve friendly feelings between the two countries." I must, therefore, in obedience to the call of duty, request your ex- cellency to have the American seamen before alluded to, without fur- ther delay, arraigned before the proper court to be sentenced or acquitted, or order that they be placed at the disposal of this consulate to be sent to the United States. I must also, in obedience to instruc- tions from my government, request of your excellency to be so good as to furnish me authenticated copies of the charges against these Ameri- CASE OF THE BLACK WARRIOR, ETC 295 can seaman, and the proofs by which it is supposed they can be sus- tained, for transmission to the Secretary of State, to be laid before the President of the United States. In the hope that this official letter will meet with more consideration than my last on the same subject, and that a friendly feeling towards my government will prompt your excellency to accede to my requests as above expressed, I have the honor to remain, with great respect, your excellency's verv obedient servant, WM. H. ROBERTSON, The Commercial Agent in charge of the Consulate. His Excellency the Marquis de la Pezuela, Governor, Captain General, Sfc, fyc, of the Island of Cuba. Mr. Robertson to Mr. Marcy. TNo. 30.1 Consulate of the United States, Havana, L J February 20, 1854. Sir: My dispatch No. 27 covered a copy of my last communica- tion to the Captain General in behalf of the Jasper's crew. I now have the honor to transmit a copy of his excellency's reply. This will clearly show that the consulate here is reduced to a mere commercial agency; that no rights are conceded to it, and therefore that American citizens are left without protection. The same vigilance, however, will be observed, while I remain in charge of the consulate, that has been practised since I commenced to discharge the duties of the office. I shall continue to remonstrate against any injustice towards my country and countrymen with the authorities here, and report to you the facts. My representations may be disregarded by the Captain General, but I shall in every case try to do my whole duty ; and should I meet with rebuke or insult I feel confident that the President will redress the wrong. I have the honor to be, sir, with great respect, your very obedient S6rVant ' WM. H. ROBERTSON. Hon. William L. Marcy, Secretary of State of the United States. P. S. — Sir: Since the foregoing was written, secret notice has been brought to me that the court have rendered their decision in the case of the American seamen, acquitting them, ordering that no costs be paid, and that the prisoners be set at liberty. I believe, however, that they will not be relieved till day after to-morrow. Very respectfully, m _ • WM. H. ROBERTSON. 296 CASE OF THE BLACK WARRIOR, ETC. [Translation.] EVER FAITHFUL ISLAND OF CUBA.— OFFICE OF TUE GOVERNOR AND CAPTAIN GENERAL, POLITICAL SECRETARY'S OFFICE, SECTION FIRST. In answer to your official letter, dated 11th instant, relative to the seamen of your nation belonging to the American bark Jasper, I can only say to you that I will give the convenient explanations, and an account of the result of this cause, to her Catholic Majesty's minister at Washington ; such being also the instructions that I have from my government for this and any other similar cases. God preserve vou many vears. Havana, February 16, 1854. * 'el marques de la pezuela. The Commercial Agent in charge of the Consulate of the United States. Mr. Marcy to Mr. Cowperthwa.ite. Department of State, Washington, February 27, 3854. Sir : I have the pleasure to inform you that a telegraphic dispatch was received at the department this morning, stating that the "Isabel" arrived at Charleston on the 25th instant, bringing the information that the American seamen who have been so long confined in Havana, and for whom you felt so much interest, have been liberated and placed at the disposition of Mr. Robertson, the acting consul. I am, sir, &c, W. L. MARCY. J. Cowperthwaite, Esq., Philadeljihia, Pennsylvania. Mr. Robertson to Mr. Marcy. [Extract.] [No. 32.] Consulate of the United States, Havana, February 27, 1854. Sir : I have the honor, as well as the gratification, of informing you that the nine seamen composing the crew of the Jasper, so long and unjustly kept in prison here, have been at last set at liberty. They were released at about one o'clock on the 23d instant, without any notification, official or unofficial from any of the authorities, but were left to find their way to my office as best they could ; they were, however, sincerely welcomed, and immediately provided with suitable clothing, &c, of which they were entirely destitute. They were then sent on board the United States steamer "Fulton." Three of them, viz: Har- CASE OF THE BLACK WARRIOR, ETC 297 vey C. Parks, William Freeburn, and William Atkins, will proceed in the steamer Black Warrior to New York, where they will be placed in charge, of the United States marshal, subject to your orders ; the other six, to wit : William Hussy, William Hersey, Charles Robinson, John Radcliffe, John William Leo, and George Hunt, will remain on board the " Fulton" until your directions are received as to the manner of dis- posing of them. I have requested the marshal in New York to furnish the captain of the Black Warrior, on his receiving the three seamen, such a document as may enable the captain to recover the passage money (thirty dollars) from the Treasury Department, as I look, of course, upon these sea- men as distressed. T have the honor to be, sir, with great respect, your obedient servant, WM. H. ROBERTSON, Acting Consul. Hon. Wm. L. Marcy, Secretary of State, Washington. Mr. Robertson to Mr. Marcy [No. 33.] Consulate of the United States, Havana, February 28, 1854. Sir : The nine seamen liberated from the prison where they were so long and unjustly confined by the authorities of this island have made their protest, and claim damages. They have, at the same time, executed an instrument in favor of D. E. Wheeler, esq., of New York, who is authorized to act for them. I have been requested by said seamen to lay their protest before you, which I now do, enclosing the same herewith ; And remain, sir, with great respect, vour verv obedient servant, WM. H. ROBERTSON, Acting Consul. Hon. Wm. L. Marcy, Secretary of State, Washington. Mr. Wheeler to Mr. Marcy. Havana, February 28, 1854. Dear Sir : At the suggestion of a number of American citizens temporarily in this city, and at the request of the nine unfortunate seamen who have lain in the royal jail here lor some time, I drew up the paper which Mr. Robertson, the acting Americal consul, transmits to the Department of State. These men have suffered beyond description since they were ar- 298 CASE OF THE BLACK WARRIOR, ETC rested, and been kept in prison for many months against their remon- strance, and a.gainst the demands of their government, as made by the consul, and also by your department of the government, and they should, in some form, have redress; and it has seemed to us that this should be sought by them from the government under whose flag they sailed. This claim has been confided to my hands by them, and I trust it will be regarded as eminently demanding the attention of our govern- ment, and that her Catholic Majesty will be required to make such amends as shall be satisfactory to it, and compensate in some measure the unfortunate men whose crime seemed to consist in being American seamen. The six who do not return to the United States by the " Black Warrior" will remain aboard the steamer Fulton until some disposition shall be made of them by the Department of State, or until they shall recover from the effects of their imprisonment and be able themselves to return home. I trust, my dear sir, that your multifarious and arduous duties will not prevent you from giving the subject of this letter your early and earnest attention, that Spain at least may know that the American gov- ernment is not tardy in seeking redress for wrongs which her weakness or indolence inflicts. I now intend visiting Washington in returning to New York ; and if so, I shall do myself the honor to call at the Department of State in relation to this subject. ' With the highest considerations of respect, I am your obedient servant, D. G. WHEELER. Hori. Wm. L. Marcy, Secretary of State, Sfc., Sfc. To all to whom these presents shall come, greeting : Know ye, that we, the undersigned, now on board the United States steamer Fulton, Captain J. M. Watson, commander, lying in the port of Havana, island of Cuba, this 27th day of February, 18-54, do make and set forth the following statement of facts, together with our protest, and our claim, which we believe we are respectively entitled to under the laws and treaties of the United States of America : We severally and respectively shipped on board the bark Jasper, E. C. Townsend, master, at the port of New York, in the United States, on or about the 12th day of December, 1852, on which day the said bark sailed from New York for a trading voyage to the coast of Africa, taking out a cargo. That we arrived on the coast of Africa some time in the latter part of January, 1853 ; that nothing occurred on board the bark during the voyage to indicate to us that x the voyage was undertaken for any other purpose than that of an or- "dinary trading voyage. That upon our arrival at Cape Coast, we landed some of our cargo, and the balance of it we landed at Aa ainic u Here we took in some elephant's teeth and tobacco, and we then sailed southerly along the coast (touching at one or two small places) about CASE OF THE BLACK WARRIOR, ETC 299 fiity miles, and came to anchor on the 2d day of March, 1853. Imme- diately after dropping anchor Captain Townsend called us into the cabin, paid us our wages to that day, and informed us that he had sold the bark three days previous, at one of the small places we put into, to a Spaniard called Captain Joseph, who came out with the bark from New York as supercargo, as we were informed, and that the bark was going to Cuba, and that we could return in her, and must do so, for if we went on shore we should be murdered. On the same day boats came alongside containing slaves, and were being put on board under the direction of Captain Joseph and two Spaniards, who he appointed mates, and who went out in the bark from New York as passengers. Provision for the slaves and other materials for their con- finement were brought on board. There were about three hundred and sixty slaves, and three men to take charge of them and do other work on board the bark ; that Captain Joseph then proffered us wages to continue the work, and Captain Townsend urged us to go to work, stating that we could not help ourselves ; and we were obliged to do the ordinary duties of sailors on board the bark, as Captain Townsend left and went on shore, having previously discharged the first mate, John Brown, at Cape Coast. As soon as we could get ready we sailed, and on the 17th day of April we arrived at the southern side of the island of Cuba, and the slaves were immediately sent on shore. On the 19th of the same month the bark was run on a reef, set on fire, and abandoned. Previously to the bark being set on fire we were sent on shore in one boat, leav- ing on board the bark a number of men who had come on board from the shore and the Spaniard who acted as mate. The captain himself previously left. We were sent on shore without provisions ; and we believe it was the intention of those who brought the bark to the island to take our lives. We were not allowed to leave the point of land where we were landed, and were prevented from going away by men who were armed with cutlasses and knives, and everything we had was taken from us except what was upon our backs. On or about the last of April or first of May three of the undersigned found the long- boat of the bark, which had been concealed, and escaped in her, and went to Cape Antonio, where the three, namely, Harvey C. Parks, William Freeburn, and William Atkins, arrived on the 3d of May ; and upon the 5th of May the same three were arrested and senton board the Spanish man-of-war "Habanera," and put in double irons, and kept on board this ship in double irons thirty-five days, and then they were transferred to a merchant schooner and brought to Havana, after a voyage of sixteen days, and then sent on board a Spanish steam man- of-war lying in the Havana bay, and kept there for eight days, and then sent to a prison on shore in Havana, where they remained until they came on board the United States steamer Fulton, lying in the harbor, the 23d day of February, 1854. The remaining six of the undersigned remained upon the point where we were landed a few days after the above-mentioned three men left, and then were taken by a resident of the island of Cuba to his plantation, and kept there until the middle of July, when we were 300 CASE OF THE BLACK WARRIOR, ETC. taken to the north side of* the island and there left. Here we remained about two months, and were provided with necessary food by a planter, and prevented from starvation. During this time we were seeking some means to get to Havana ; but we did not succeed until we found a Spanish schooner, which came to the shore. We went on board of her, and persuaded the captain to take us to Havana, that we could make known our situation to the American consul at that place, and claim his protection and aid ; but before the schooner sailed we were arrested by men from a Spanish man-of-war, and taken on board of her, and on the same day transferred to the same schooner, with orders to the captain of the schooner to deliver us to the captain of the port. Upon our arrival at Havana we were put on board the guard-brig, and kept on board of her twenty-one days, and then were transferred from the brig on the 11th day of September to the prison on shore, where we found the other three of the undersigned, except Wra. Hussy, who was sick, and was sent to the hospital, from whence he was sent to the prison about fifteen da}-s after the other five. That during these va- rious periods, and after the information of the sale of the bark, the un- dersigned declare ourselves innocent of any crime, and that we sailed from New- York under the American flag, and were entitled to the rights and privileges of American seamen. That, after being in prison two or three days, we were separated, or with one or two together taken into court ; but no crime was charged against any one of us to our knowledge or belief, but we were remanded to prison, and there confined until we were all discharged on the 23d day of February, 1854. That we were confined in prison, and in one room, with about one hundred and fifty prisoners, charged with all sorts of crimes, and kept with them in a. very filthy condition, with scarcely food sufficient to sustain life, and with no clothing except that with which we came from the ship ; that we were all turned out of prison with no information how or where to go from those who confined us ; that during our imprisonment we were assisted by Mr. Robertson, the acting American consul, and other Americans in Havana, and kept from the last horrors of starvation ; that the undersigned have always and universally demanded their rights as American seamen, and denied that they were guilty of any crime whatever, and protested verbally against the treatment that we have received from the Spanish government, without any apparent benefit. The undersigned do now in the most solemn manner set forth this brief statement of facts, and protest against the treatment which we have received from the Spanish government, its authorities and officials, and demand that personal satisfaction as American seamen we are entitled to, and appeal with confidence to the American government for that redress which her citizens or sailors can claim while in pursuit of business under her flag, or are wanderers in a strange land with a still stranger tongue, through the treachery and wickedness of an unworthy captain, or perhaps a still worse Spanish, fraudulent, and surreptitious commander. And while we thus appeal, we cannot forget or cease to record the great kindness received by us from our consul at Havana, and from other American citizens at this port. Our names and places of birth we affix to this instrument, and make them a part of it ; and CASE OF THE BLACK WARRIOR. ETC 301 do sign it on board the United States steamer Fulton, Captain J. M. Watson, commander, in the harbor of Havana, this 27th day of Feb- ruary, 1854. WILLIAM ATKINS, New York. WILLIAM FREEBURN, Philadelphia, Pa. HARVEY C. PARKS, Marion, Wayne county, N. Y. his CHARLES X WM. HERSEY, New York. mark, his WILLIAM X HUSSY, Nantucket, Mass. mark, his CHARLES X ROBINSON, Philadelphia, Pa. mark, his JOHN X RADCLIFFE, Boston, Mass. mark. GEORCE HUNT, Baltimore, Md. JOHN W. LEO, Niagara county, N. Y. Consulate of the United States, Havana, Island of Cuba. On the day of the date hereof, I, William H. Robertson, acting consul of the United States of America for the city of Havana and the de- pendencies thereof, being on board the United States steamer Fulton, fyino- in the port of Havana, personally came and appeared William Atkins, William Freeburn, Harvey C. Parks, Charles William Hersey, William Hussy, Charles Robinson, John Radcliffe, George Hunt, and John Wm. Leo, seamen, to me known as the individuals described in the instrument in writing that appears on the two preceding pages ol this sheet, and on the four pages of the sheet hereto annexed; and said appearers, being by me severally sworn, did declare and depose that the said instrument contains the truth, the whole truth, and nothing but the truth. The said appearers subscribed their respective names to said instrument in my presence, and declared that they had signed the same as their voluntary respective act and deed. In testimony whereof, I hereunto set my hand, and affix the seal ol my office, (being requested to certify and testify the premises,) [l. s.] at Havana, this twenty- seventh day of February, A. D. eighteen hundred and fifty-four. & ROBERTSON. 302 CASE OF THE BLACK WARRIOR, ETC. Mr. Wheeler to Mr. Marcy. Havana, February 28, 1854. Dear Sin : At the suggestion of a number of American citizens temporarily in this city, and at the request of the nine unfortunate sea- men who have lain in the royal jail here for some time, I drew up the paper which Mr. Robertson, the acting American consul, transmits to the Department of State. These men have suffered beyond description since they were ar- rested, and been kept in prison for many months against their remon- strance, and against the demands of their government, as made by the consul, and also by your department of the government; and they should, in some form, have redress, and it has seemed to us that this should be sought by them from the government under whose flag they sailed. This claim has been confided to m}^ hands by them, and I trust it will be regarded as eminently demanding the attention of our govern- ment, and that her Catholic Majesty will be required to make such amends as shall be satisfactory to it, and compensate, in some mea- sure, the unfortunate men whose crime seemed to consist in being Amer- ican seamen. The six who do not return to the United States by the "Black War- rior" will remain aboard the steamer Fulton until some disposition shall be made of them by the Department of State, or until they shall recover from the effects of their imprisonment, and be able themselves to return home. I trust, my dear sir, that your multifarious and arduous duties will not prevent you from giving the subject of this letter your early and earnest attention, that Spain at least may know that the American gov- ernment is not tardy in seeking redress for wrongs which her wicked- ness or indolence inflicts. I now intend visiting Washington in returning to New York ; and if so, I shall do myself the honor to call at the Department of State in re- lation to this subject. With the highest considerations of respect, &c, I am, &c, D. G. WHEELER. Mr. Robertson to Mr. Marcy. [Extract.] [No. 36.] United States Consulate, Havana, March 5, 1854. I send you another defence, made in behalf of the prisoners, which contains some interesting facts : it may prove interesting to you. I re- gret that we have not time to translate it, but we are both nearly broken down with labor night and day. With great respect, your obedient servant, W. H. ROBERTSON. CASE OF THE BLACK WARRIOR, ETC 303 [Translation.] Don Jose Perez Ramos, attorney for John Radcliffe, Charles Ro- binson, and William Hersey, through the acting counsel for the defence, in consequence of criminal proceedings for the introduction of 280 ne- groes in Bayleu, jurisdiction of Pinar del Rio, according to law, I say : That there is not one single data in this process by which my clients can be considered as complices in the introduction of negroes from abroad (negroes bozalos) in the island. The penalty of four years' transportation, (imprisonment in the gal- leys,) insisted upon in the fiscal pleadings, (by the prosecution,) is not only unusual but enormous, and therefore unjust. Your highness, in the plenitude of your integrity, will not impose such penalty, but order the immediate release of the accused. In this process there is wanting legal evidence ; there is wanting the object with which, or through which, the crime has been committed, (cuerpo del deliz?) and the judgment of the court, so tar from condemn- ing, must be for acquittal. If the negroes, who are said to have been brought here, have not been taken, but, on the contrary, not a single one has been met with; if even the names of the owners, the captain, the pilot, and the crew, are unknown ; if not even fragments have been found of the ship itself, which is said to have been burnt — since the results of the inquiries made show the impossibility of designating as such the two hulls, the masts and rigging of which cannot be identified; if the allegement of facts is confined to one witness, seeing that every- body pleads ignorance in regard to the same ; in short, if nothing of what has been advanced upon this subject can be taken as legal proof, which is, then, the prima facie evidence of the crime? Are impressions, peradventure more or less fallible, sufficient to constitute the basis of an adverse judgment, and to end this noisy trial with the horrors of transportation ? However strong conjectures may be, they never can take the place of that which only belongs to the plenitude of proofs. We seek for these in the pages of the indict- ment, and we do not find them ; we examine the same with care, and the only thing that we encounter is the declaration of the American sailors that they have been victims, and nothing more. These declara- tions are not a confession of the crime, nor do they supply a pretext for condemnation, as we will proceed to demonstrate. The facts may and do exist in reality ; but when these facts come to be dealt with according to law — when the law requires the facts to be clearly sustained, at least with regard to data, and the proofs to be conclusive, and the analysis furnishes nothing of this kind — there is wanting, as we have stated, legal evidence ; and without it, no penalty can be imposed, however much moral evidence may float on the surface of the proceedings. What the law requires in order to condemn, is convictions, and not deductions — proofs, and not suspicions. It is proper that in the proceedings which are instituted against the person of an in- dividual, or against his signature, the charges should be proved and ascertained by means of evidence as clear as the light, about which no doubt can exist. From the moment that other principles are adopted, the guarantees of society are attacked and destroyed ; and arbitrariness 304 CASE OF THE BLACK WARRIOR, ETC. being enthroned, this, and not justice, decides the fate, the honor, and the future welfare of families. This is so evident and reasonable, and so much in conformity with forensic practice, that our tribunals are wont to dismiss a case when the criminality of the party indicted is not proven, although the crime committed be evident — which is equiv- alent to saying, that the means employed in the investigation were not sufficient to demonstrate the responsibility of the accused, and that lor cases of this kind, the courts of judicature have certain doors open, without bringing the matter to a close by an absolute acquitment. In the present instance, there is even less than this. Why? Throughout the whole record of these extensive proceedings, there is no evidence of the ^ introduction of the negroes in question, nor any proof of the crime having been committed. Such is the impartial result which a careful examination of the proceedings has produced. We are not astonished at this result. The immoral and barbarous negro traffic, which converts men into articles of merchandise, which is degrading and disgraceful to those engaged in it, has unfortunately found numerous advocates, as the fiscal acknowledges, and it is seldom that the action of the tribunals has succeeded in penetrating through the utter darkness with which interest, cupidity, corruptions, and cunning have enveloped this crime, which reason, law, and humanity alike con- demn. For this reason your highness will perceive, that although the col- lector of the royal revenues asserts in his communication that the rumors about two hundred and eighty negroes having been imported at ' the point of Bayleu were notorious, there is not one single individual that will certify to the fact. There is not a solitary word in these pages, therefore, with the exception of the declarations of the sailors, that throws light upon the commission of the act. Hence the citations from the communication of her Brittanic Majesty's consul were entirely of a negative character. Hence the existence of the crime has not been proved. We do not allege it, however, as a truth, as it has been set forth in the fiscal pleadings, that the country is in favor of the importa- tion of Africans. In a greater or lesser degree, the same thing occurs in the investigation of grave outrages : they have always taken place — they have been witnessed — are known and referred to; and the same persons who, in private, assert the facts, and give accounts of the mi- nutest details, when they are called upon to testify in a court of justice, have nothing to say, and are ignorant of everything. There is, un- fortunately, a certain degree of fear associated with the courts of law, as a public institution, which is fatal in itself, because it affords impu- nity to crime, and renders the powerful arm of the tribunals useless. It is to this custom, originating in ignorance and in error, and which the efforts of an enlightened public opinion alone can put down, that the profound silence observed on such occasions, and the want of data for judicial decisions, is owing. Shall it be said, on this account, that the country where such things come to pass is in favor of the impunity of crime ? Shall it be said that it encourages and desires crime '( Cer- tainly not. There are evils which are coeval with the condition of the people ; and the. people have a social education, which, like their intel- lectual or private education, influences all their actions. However diffi- CASE OF THE BLACK WARRIOR, ETC 305 cult it may be to note the beginning of this influence, it is nevertheless felt and perceived in all that occurs. To the legislator as well as to the jurist, to the latter as well as to the observing man, the facts which present themselves are never isolated. The obscurity prevailing in these investigations, the useless labors attending the multitude of meas- ures that have been adopted, the silence and the negatives pitted against the activity and skill of the magistrate, do not indicate that the coun- try is for the introduction of Africans, nor for the infraction of treaties, the observance of which is so much insisted upon. It is the result of other causes, the discussion of which would lead us astray from the case before us. It is nevertheless a fact in point ; a fact which con- cerns the defence, and which cannot be allowed to pass unnoticed, when a proper appreciation of the truth is of so much importance in the proceedings. John RadclifFe, Charles Robinson, and William Hersey, are not com- plices in the importation of the 280 negroes who are said to have been fraudulently landed at Bayleu : they were the victims, and not the de- linquents ; the deceived, and not the deceivers ; and between the two characters, there is the enormous difference which separates crime from innocence ; the fiscal department not being able to find a just cause for indictment, there being not a single article in the penal law which embraces the case in question, inasmuch as these persons have not been detected, either at sea or on land, in the commission of crime ; nor did the vessel sail from this island ; nor were there any negroes captured, there being not the least indication, with the exception of their own declarations, either of the expedition, owner or captain. The department aforesaid has considered as a confession of the crime, the very exception, which would have acquitted the accused parties of it if the disembarcation had been established, which is not the case. That the sailors sailed from New York in the American bark Jasper, for Af- rica, for purposes of lawful trade ; that as soon as they saw on board negroes for the slave market, they refused to continue on their voyage ; that they did not accomplish anything in consequence of the distance they were from any coast where they might find a consul of their na- tion ; that they were conveyed to the southern part of this island ; that they proceeded to Cape Listic with a boat, the captain, pilot, and offi- cers of the brig, which the latter set on fire, having gone off; and that while they were trying to procure assistance at Cape San Antonio they were arrested, and taken on board her Majesty's steamer Gaudalquiver— is what appears from their declarations. There is not an article in the penal law which can be applied to the present case. The only charge which has been brought against them, with a show of legal fairness, does not only contain its own reply, but its own refutation. Why did they continue on the voyage, they were asked, when they had ascer- tained that the object of that voyage was to carry on the prohibited/ traffic of slaves ? Because, the victims of deceit in the first instance, they were subsequently the victims of force and of circumstances. It is an original mode of proceeding, that whereas, according to law, the charges must be made to rest upon the results of the investigation, the only charges that have been preferred in this case rest solely upon the declarations of the accused themselves. Throughout the 20 306 CASE OF THE BLACK WARRIOR, ETC. whole summary proceedings, almost, there does not appear any legal charge, which is very much in favor of their innocence. These sailors Y were ignorant of the true object of the expedition ; nor did they pause to inquire into the same, bound as they were already, with regard to time, destination and wages ; and having likewise been impressed with the legitimate object of the expedition, without any reason on their part for suspecting that they were the victims of circumstances, the com- bination of which was force, and an invincible force, because in that maritime latitude, at an enormous distance from the coast, and without the support which a consul oi their nation might have afforded them, they had to succumb, and did succumb, in so critical a station. If Rad- cliffe, Robinson, and Hersey had been criminals, as it is supposed, they would have "gone with the captain and the other officers of the ship, when, after having landed the negroes and fired said vessel, they could have saved themselves by flight. They prefer, however, to remain ; they do not follow in company with those who had vilely deceived them ; they suffer hunger and privations ; they remain in an unknown land, the language of which they do not speak ; they descend in a boat, are arrested, imprisoned. And yet charges are brought against them ; still they are indicted for an act in which they did not voluntarily take part; they are unfortunate, and on account of this misfortune an indict- ment is filed against them, for the purpose of consigning them to prison, with hard labor. We do not know any one, they said ; we are stran- gers in the country ; we do not know whither to wend our steps ; we did not go to the authorities whom we did not know either, because we might be questioned, imprisoned and prosecuted. The authors of the crime were far away and in safety ; the deceived sailors had no means to return to their country, and there to exercise their rights. There is nothing criminal in this ; there is no ground for charges, and the facts are satisfactorily explained. Your highness will see that nothing has been proved in regard to the crime ; that not a single negro has been taken ; that neither the owners nor the officers of the vessel are known ; that it has not even been as- certained who has purchased these slaves ; that the investigation has been carried as far as the most interior plantations, causing the magis- trate to appear — his dependents, servants, and even the slaves of those plantations — all of whom have been questioned ; that the inquiries made about the vessel in those waters by the sub-delegate of marine have not brought forth any evidence, seeing that it is stated in the report that, inasmuch as the masts and rigging of the "Jasper" are not known, the two hulls that were seen there cannot be designated as appertaining to the same — everything remains in obscurity and mystery. Colonel Villers, lieutenant governor of Pinar del Rio, who was the responsible local authority, is acquitted for want of evidence ; the petty justice of the district is likewise acquitted ; they are both restored to their re- spective offices ; and yet there are other men of low condition, foreign- ers, who are wandering at random in our seas, without the means of subsistence, and shall the consequences of the process be applied against them only ? Your highness will not permit it. If these declarations are of no validity whatever, as your highness has demonstrated, by acquitting the functionaries of Pinar del Rio, who CASE OF THE BLACK WARRIOR, ETC 307 are responsible for the vigilance of those coasts— if they were not sufficient to convict those officers of neglect of duty, shall they now suffice for the condemnation of these poor men, when, before, they offered no obstacle in the way of an acquittal ? It were, at least, ab- surd to conceive of so invidious a distinction — such a monstrous con- trariety, when the rules of judicial action, solemn and severe, are fixed, invariable, and decisive of the rectitude of the magistrate, which is one of the most sacred attributes of justice. These declarations of the sailors, my clients, therefore, are not a confession of the crime, nor is this the spirit of the law of Castile. To be convinced of this fact, let those declarations be read. It is not said, we have committed this crime, but only we were deceived. These declarations allude to the unlawful acts of others, such as the traffic, the introduction of slaves in this island ; nor did the will nor the inclination of the deponents take part in that traffic. Let any part of the declarations be cited to prove the founda- tion for such an assertion. The law requires, moreover, for the responsibility of the accused, a deliberate disposition to transgress. The actions of men have their origin, their object, and determined ends. To keep these out of view, would be equivalent to condemning the whole human family. All the circumstances by which the sailors found themselves surrounded when the negroes were already on board, and they had ascertained the concealed object of the voyage, exercised in regard to them real vio- lence, a force which they could not overcome ; and this force, this vio- lence, were the maritime latitude, the greater number they had to contend with, their miserable condition, the enormous distance, the utter absence of means of escape, or even to rise in rebellion against the captain, for they would have perished in the struggle. The law ab- stains from inflicting penalty upon the man who labors under the terri- ble weight of such circumstances; and this is the foundation of the ex- ception to the application of severe measures, according to the opinion of jurisconsults. It is conclusively inferred that they had no liberty of action, either moral or physical ; that the acts cannot be imputed to them under any aspect whatever; and that this most essential requisite being wanting, they are not amenable to law. _ Even though the declarations were to be misconstrued so far as to give them a meaning of which, as it has been demonstrated by the ac- quittal of the local authorities, they are not susceptible, they would be utterly wanting in efficacy, as they would be the declarations of accom- plices in the very crime, and such evidence is of no validity whatever in law. Everything, therefore, tends to convince and to set forth the innocence of the accused and the pressing necessity, because the rectitude with which the administration of justice ought to be conducted demands it, of decreeing the release of my clients, in order that they may be deliv- ered over to the consul of their nation, and be able, in their own country, to prosecute those who have so iniquitously deceived them. With this view of the case, the summary being obscure, inefficient, and without any merit whatever, the criminal proceedings without founda- tion, seeing that the commission of the crime for which the prosecution 308 CASE OF THE BLACK WARRIOR, ETC. has been got up has not been proved, and reproducing, as I do, all that was favorable to the subject in B. 348, on account of the solid founda- tions it contains, I supplicate your highness that, taking into considera- tion my reply to the prosecution, as reproduced in all its force, you will acquit my clients of all crime and penalty, by decreeing that they shall be at once set at liberty, as if is proper and should be done according to justice, &c. JOSE PERES RAMOS. I. MANUEL COSTALES. Mr. Marcy to Mr. Robertson. [Extract.] Department of State, Washington, March 7, 1853. '" ', g IR . #*###*# The announcement that the American seamen in whose behalf you have so strenuously exerted yourself have been acquitted, affords much satisfaction. You will provide for their return to the United States in accordance with previous instructions, taking care that their necessary wants, as destitue American seamen, be supplied. I am, sir, &c, W. L. MARCY. W. H. Robertson, Esq., Acting United States Consul, Havana. CASE OF THE BLACK WARRIOR. Mr. Robertson to Mr. Marcy. [No. 42.} Consulate of the United States, March 14, 1854. Sir.: Captain Bullock, of the steamship Black Warrior, becoming im- patient, as he has a large number of officers and men on his hands at a verv heavy expense, and was ignorant of the real charges of complaint that justified the proceedings against him and his ship, made a memorial to the Governor and Captain General, praying that himself, his officers and crew, should be permitted to embark in the Crescent City, expected from New Orleans on her way to New York ; and at the same time to be furnished with a statement of the case, that he might report to his owners. Said memorial, at the captain's request, was enclosed in a note from me, calling his excellency's attention to it. Last evening I received a reply, of which the document herewith enclosed is a translation. How long these proceedings may be continued it is impossible to say. I have the honor to be, sir, with great respect, your very obedient servant. WM. H. ROBERTSON, Acting Consul. Hon. Wm. L. Marcy, Secretary of State of the United States. CASE OF THE BLACK WARRIOR, ETC 309 [Translation.] [L. S.] EVER FAITHFUL ISLAND OF CUBA.— OFFICE OF THE GOVERNOR AND CAPTAIN GENERAL, POLITI- CAL SECRETARY'S OFFICE, SECTION FIFTH. The jurist to whom belongs the judicial investigation of the case of the steamer Black Warrior, has just reported to me as follows : " Most Excellent Sir : The assessor (legal adviser) has just dis- patched the process that the preceding petition refers to, advising your excellency in it that the same shall return into the hands of the ' fiscal,' to whom belongs, as the representative of the royal exchequer, to plead the rights of the same ; consequently, no decision has as yet been pro- nounced that is to be communicated to the captain of the steamer de- tained, and by him spontaneously abandoned ; so that the persons of the crew of said steamer, being in the enjoyment of their liberty, can make use of it as they may choose either to remain in or leave this country, your excellency's permission being first obtained. But in regard to the process, it is necessary to go through the opportune pro- ceedings before pronouncing the proper resolution, to the results of which must remain subjected the captain of the steamer ; giving to that end the necessary guarantee, as he should be made to understand, should your excellency so ordain it, referring afterwards this petition to the fiscal, with all the proceedings upon the matter." And, in conformity with his report, I transfer the same to your lord- ship for your information, and in reply to your communication of this date ; in the understanding that, as your lordship will perceive, the offi- cers and crew of said steamer are at liberty to transfer themselves where they please ; but not so Captain Bullock, for the reasons already expressed. God preserve your lordship many years. Havana, March 13, 1854, EL MARQUIS DE LA PEZUELA. To the Consul of the United States in this city. Mr. Robertson to Mr. Marcy. [Extract.] Consulate of the United States, Havana, March 21, 1854. g IR . ###*## Enclosed herewith you will find a copy, with translation, of an offi- cial letter from the collector of the customs to Mr. Charles Tyng, con- signee of the steamer " Black Warrior," restoring to the owners the said steamer and her cargo. The ship has been received under protest, and the fine will be paid under protest. She was taken possession of yesterday in the most filthy condition, and in the greatest disorder, and I am informed that many articles belonging to her are missing. All circumstances bearing upon the case will hereafter appear in the cap- tain's protest. She is now taking in her cargo, and intend to leave for New York on Friday next. ###### dlU CASE OF THE BLACK WARRIOR, ETC [Translation.] Administration General of the Maritime Revenue of Havana. His excellency the superintendent general, delegate of the royal ex- chequer in this island, under date of the 16th instant, has been pleased to issue the following decree : " In view of the fiscal's opinion, having before me all the other pre- cedents of the case, and finally concurring in the spirit of benevolence which is evident in the decision of the superior directing board of the royal exchequer, I resolve to fix the fine of six thousand dollars, which is to be paid by the company owning the steamer Black Warrior, with- out any other disbursement on any account whatsoever, as from the said fine shall be deducted the expenses incurred hitherto and the dues that were defrauded from the royal exchequer" — Which I transmit to you for your information, that you may be pleased to make effective (hacer efectiva) the said fine, and dispose that the captain of the Black Warrior take charge of her and the cargo, all with the urgency that the case demands. God preserve you many years. Havana, March 18, 1854. JOAQUIN ROCA. Charles Tyng, Esq., Consig?iee of the American steamer " Black Warrior.'''' Mr. Sutherland to Mr. Marcy. New York, 54 Wall Street, March 28, 1854. Sir : In the statement of Messrs. Livingston, Crocheron & Co., agents of the New York and Alabama Steamship Company, relative to the seizure of the " Black Warrior,'* &c, which they had the honor to lay before you on the 11th of March inst., they referred to former unjust demands made by the authorities at Havana, upon the agents of said company there, for certain " tonnage dues," &c, in violation of cer- tain privileges which had been previously conceded and verbally promised, if not authoritatively ordained or decreed, tp the steamers of said company, being the same privileges conceded to, and enjoyed by, the steamers of the English Royal Mail Company, and those of the American " Law" line. The amount which the said agents at Havana were thus compelled to pay, and did pay, under protest, on or about the 17th of February, 1853, was $3,372 50 ; since then, a demand has been made upon the said agents for two trips more, amounting to $2,197 76. Upon the first demand being made, Messrs. Tyng & Co., the said agents at Havana, made a memorial to the intendente, requesting that the matter might be referred to the home government at Madrid. In this memorial they not only complained of this demand of these tonnage dues, &c, under the circumstances, as unjust and dishonorable, but insisted on the claim of the steamers of the "New York and Alabama Steamship Company" to enjoy the same privileges as the steamers of CASE OF THE BLACK WARRIOR, ETC 311 the " English Royal Mail Company," and those of the American " Law" line. This request to have the matter referred to the home govern- ment having been granted, Messrs. Tyng & Co. wrote to Mr. Barringer, who was then the American minister at Madrid, enclosing a copy of the memorial ; and explaining the case, asked his attention to it. To this letter no answer has been received. Upon the demand being made for the $2,197 76, for two other trips, which was about the 10th of December, 1853, Messrs. Tyng & Co. wrote Mr. Soule, our present minister at Madrid ; and, referring to the said memorial and their letter to Mr. Barringer, fully explained the case to him, and asked his attention to the matter. No reply has been received from Mr. Soule, nor is it known that the letter has been received by him. On the behalf and at the request of Messrs. Livingston, Crocheron & Co., I have the honor now to enclose, herewith, a copy of the letter of Messrs. Tyng & Co., to Mr. Soule, and to ask you, as the chief execu- tive officer of the government having charge of our "foreign affairs," to give the subject-matter of it that attention and action which it may and ought to have, not so much as an isolated case of Spanish agres- sion upon the rights and property of American citizens, as from the fact that it has been followed up by the late unjust seizure of the " Black Warrior" by the same Spanish officials. I have the honor to be, your obedient servant, JOS. SUTHERLAND. Hon. Wm. L. Marcy, Secretary of State, Sfc. Havana, December 10, 1853. The undersigned, agents of the American steamers " Black War- rior" and " Cahawba," which vessels ply regularly between New York and Mobile, stopping each voyage at this port, beg to call your atten- tion to the following facts : In the month of August, 1852, previous to the establishment of the line, we made a memorial to the intendente, asking that the steamers of this line might be placed upon the same footing and enjoy the same privileges as the steamers belonging to the English Ro}^alMail Company, and those of the American "Law" line, which run between New York and New Orleans. This request was granted, and the " Black War- rior," the first of the line, commenced making her trips in the month of September following, and has continued to call here, on her voyages out and home, twice per month, ever since. The privileges granted to the above named lines, and which were promised to this line also, are as follows : 1st. They are exempted from the payment of certain port charges levied upon common merchant vessels coming to this port for the pur- pose of bringing or carrying away cargoes, such as light dues, mud-ma- chine dues, &c, &c; and, second, they are allowed the privilege of taking merchandise to the extent of three tons, without incurring the charge of tonnage dues paid by merchant vessels. 312 CASE OF THE BLACK WARRIOR, ETC. The Black Warrior had made four voyages, calling at this port twice on each voyage, when, to our astonishment, the custom-house authorities sent us the bills, and demanded payment of the tonnage dues and other port charges for those four voyages, the same as though she had been a common merchant ship, and no promise had been made to consider her as otherwise. These bills for tonnage, dues, &c, amounted in the aggregate to near five thousand dollars, ($5,000.) In answer to our question why they demanded these charges, we received a reply that a royal order had been received from Madrid, in answer to a memorial by the house of Villodo, Wardroff & Co., of this place, asking that the English steamer " Tamaulipas" might be placed upon the same footing as the two first mentioned lines of steamers. This royal order refused the request, on the ground that no merchant vessel should enjoy the privileges granted to the mail steamers, and the cus- tom-house authorities, choosing to consider the Black Warrior as a merchant vessel, not only rescinded the privileges they had before granted, but demanded payment of the past dues which they alleged she had incurred. We objected to paying the amount and made a memorial to the intendente, requesting that the matter might be referred to the home government, at Madrid. This request was granted, and the memorial, (of which we herewith enclose a copy,) was, after much delay, forwarded on the 1st of March last. We also wrote to Mr. Bar- ringer, who was at that time the American minister, explaining the case, and requesting his attention to it, but, having received no reply to our letter, are uncertain whether he received it or not. We beg leave to present to you the following reasons why these steamers should be placed upon the same footing with those of the American " Law'* line, and not with the English steamer " Tamaulipas :" The steamers "Black Warrior," of 1,700 tons, and the " Cahawba," of 1,850 tons, American measurement, are large side-wheel steamers, and are commanded by officers of the United States navy. They merely stop here for from four to six hours on their trips to and from New York and Mobile. They make these stops merely to land mails and passengers, and to take in coals and other necessary supplies ; they neither land nor receive cargo. Like the " Law" line of steamers, the only use they have made of the three tons granted, has been to take samples of merchandise, and other small packages, for the accom- modation of the commerce of the place. Being side-wheel boats, and using sails only as auxiliaries, they are obliged to steam during the whole passage. Moreover, as a large portion of their holds is taken up by the boilers and other necessary machinery, their carrying capa- city is very small in proportion to their tonnage. With the steamer " Tamaulipas" the case is very different. The " Tamaulipas" is a propeller, built in England, with a view to carrying merchandise principally. She is a sailing-vessel, and only uses her propeller as an auxiliary when the winds are unfavorable. She measures very small, but her carrying capacity is very large in proportion. She runs from Liverpool to Vera Cruz, and from there here, bringing cargo and pas- sengers. She lies in port for from three to four days, and receives and discharges cargo, the same as any merchant vessel, and there is no just reason why she should not be considered as such. CASE OF THE BLACK WARRIOR, ETC 313 We contend that it is an injustice to represent the Black Warrior and the Cahawba to* be of the same class and subject to the same duties as the Tamaulipas, being, as they are, of an entirely different build and intended for an entirely different purpose. We claim that they are of the same class, subject to the same duties and other port charges, and entitled to the same privileges as the " Law" line of steamers before mentioned. More than this, we consider it not only an unjust, but a dishonorable act, on the part of the authorities, that, after having given their consent and admitted these steamers eight different times upon precisely the same footing as the " Law" line, and that consent being one of the inducements for these steamers to stop in this port, then not only to withdraw the permission, but also to demand payment for those past voyages — voyages which would not have been made had that permission not been granted. Had the in- tendente informed us, in answer to our application before the line was established, that these steamers could not be granted the privileges accorded to the "Law" line, then arrangements would have been made either for them not to stop here at all, or else to load full car- goes as an offset to those expenses; but having given the permis- sion, we consider the government bound both legally and honorably to make good the promise. Within the past few days we have again been called upon to pay the amount of these tonnage and other dues. We have called upon the custom-house officers, to know why the de- mand is made again, after having been referred last spring to the home government at Madrid. We have been informed by them, that no an- swer has as yet been received to the memorial then sent ; but that it is an order from the intendente to the collector of the port, that the amount shall be paid. If these charges are persisted in, it will be necessary for the owners to order these steamers to stop here no more, as the expense thus incurred would be ruinous. As American citizens ourselves, and as the agents and representa- tives of large American interests in this port, we would request you, as the American minister plenipotentiary to the court of Spain, to have this matter fairly represented to the proper authorities at. Madrid who have charge of those affairs, and see that we, as agents of the owners of these steamers, are protected in our just end legal rights. We would wish you to represent to them that the steamers are not only of great importance to the commerce of the place, as is indeed the case, but also to the government itself, in the way of forwarding dispatches, &c, as has always been done by them without any charge whatever. We would feel greatly obliged if you would acknowledge the receipt of this letter, and inform us, so far as may be in your power, of the prospects of a speedy settlement of the affair ; and beg leave to sub- scribe ourselves, Most respectfully, your obedient servants, CHARLES TYNG & CO. Hon. Piere Soule, Minister Plenipotentiary of the United States at Madrid. 314 CASE OF THE BLACK WARRIOR, ETC [Translation.] t Rules and instructions for the custom-house service of the ports of entry in the island of Cuba, ordered to be put in force by royal order of the 13th of February, 1847. Printed in Havana, at the printing office of the government and royal treasury, for her Majesty, on the same year of 1847. [Articles concerning what took place with regard to the " Black Warrior."] Art. 1. " The operations of the custom-house shall commence from the moment that vessels come into port." (After directing the com- mandant of carabiniers to be present at the sanitary visit, and to cause the vessel to be watched until she is admitted to free practice, it con- tinues :) " The vessel being admitted to free practice, the aforesaid v officer shall go on board and receive from her captain the manifest of the cargo she brings. In doing this, he shall make a note, at the bot- tom of said document, of the hour when the same was delivered to him, of the lines of writing it contains, stating which have not been corrected, or which have been, and the circumstance of the vessel having anchored, it being necessary for him to sign this note, with the captain and the interpreter, in case of said captain being a foreigner. After this, he shall deliver to the same captain a printed copy, in three languages, according to examplar No. 1, of the obligations with which he is bound to comply, and the penalties he would incur by their in- fraction ; and having done this, he shall take care," &c, &c. Art. 4. The manifest being presented with the formalities enume- rated, the commandant of carabiniers, or whoever may represent him, shall forward the same to the collector of customs, in order that he may hand it to the interpreter, &c, &c. Art. 5. " During the space of twelve hours, counting from the time that the vessel comes to anchor, (it being understood, for this purpose, the hours intervening between six in the morning and seven in the evening, every day in the year, irrespective of holydays,) the^captain shall be at liberty to make additions in his manifest, whether for omis- sions, irregularities, or errors he may have committed in the same, or in consequence of not having presented it with the formalities required by the foregoing articles." Art. 6. " The alterations which the captain may have to make, con- formably with the privilege granted by the preceding article, shall be comprised in an appendix, which he shall present to the collector, noting down the hour of its delivery, and both signing the same, if it be office hours ; if not, he shall present it to the chief of carabiniers that may be on duty at the mole, who, without the least delay, and under the strictest responsibility, shall transmit the same to the col- lector, with a memorandum, signed by said chief himself and the cap- tain, of the hour when it was delivered." Chapter V. — Tonnage and arrivals. Art. 54. " National or foreign vessels entering the ports of the island to trade, with whatever kind of cargo, shall pay, besides consular and CASE OF THE BLACK WARRIOR, ETC 315 ...... J municipal duties, the tonnage duties specified by the tariff, according to the results of the guaging effected on the occasion of their first voyage, for all vessels, whether national or foreign." Art. 56. "If, after having come in ballast, the vessels sail again without a cargo, they shall be exempt from the payment of tonnage duties; but this duty shall be exacted from them if they take the whole or part of their cargo in produce of the country, or in articles of any other kind or derivation, even when they are not worth the duties. In the same manner they shall pay, under all circumstances, the local duties which are levied in each port." Art. 57. "Nor shall those vessels pay tonnage duties which arrive at a port in quest of water or provisions, or to repair damages ; but if such vessels leave the whole or part of their cargo, or ship produce of the country, or articles of any other derivation, they shall pay in full the duty aforementioned." Chapter XL — Mercantile depot. Art. 119. "Articles, produce, or effects, intended for deposite, shall be divided into two classes. Those of the first class shall only enjoy this benefit during the term of one year, not to be prolonged ; and those of the second class for two years, not to be prolonged likewise." Art. 123. " The articles composing the second class are the follow- ing : Flax, hemp, cotton, wool, silk, furs, horse-hair in its natural state or manufactured, and every species of texture, &c" Chapter XII. — Fines, double duties, and seizures. Art. 160. " The value affixed to effects, produce or articles of trade, shall be the criterion for regulating the fines and double duties, which are not designated in these instructions by a fixed sum." Art. 162. "At the expiration of the twelve hours specified in article 5th for the rectification or addition of the manifest, all bulks that have not been set down in it shall be seized, a fine being likewise imposed upon the captain of as much more as the value of the same ; provided, that the amount of duties which should have been paid for the contents of the bulk, or bulks seized, does not exceed four hundred dollars, because if it should exceed that amount, and the articles belong or be consigned to the owner, captain, or supercargo of the vessel, the fine shall not take effect, and, in its place, the vessel shall be seized, together with her freight and all belonging to her." Art. 175. "If, upon the visit of the inspector, which must be made to all vessels before the papers with which they have to sail are de- livered to them, there should be found any excess in the cargo, this shall be seized, and a fine imposed upon the captain equal to the value of said excess." Chapter XIII. — General regulations. Art. 190. " The captain of every vessel, national or foreign, which may enter any of the ports of entry of the island, on her passage out, 316 CASE OF THE BLACK WARRIOR, ETC whether with cargo or in ballast, by stress of weather or in transit, shall present her manifest or register, in the manner and with the formalities prescribed in these instructions, and shall be subjected to the fines and penalties imposed in the same, for any violation of the regulations therein contained." Art. 193. "From the moment that a vessel in cargo enters a port, until she has discharged the same, or, if either in transit or driven by stress of weather, until she sails again, and from the moment that a vessel in ballast takes in cargo, until her register is closed and she gets under way, there shall be a carabinier, at the utmost two, on board of her, for the purpose of performing the duties allotted to such which are laid down in these instructions, or in the regulations of said body. If this carabinier should be relieved for the convenience of the service, or for other causes, he shall deliver over to the person who may replace him, the memorandum book of the loading and unloading of the vessel, in the presence of one of his immediate superiors, who shall revise the same, in order that, in case of any difference occurring, the responsi- bility may be thrown upon whom it belongs." Art. 197. " The^collector of customs shall attend to the manifests and registers of foreign or national vessels which may enter in ballast, in distress, or in transit, on the same terms as are established with re- gard to those that bring imported cargoes." Art. 203. "None of the provisions contained in these instructions shall be interpreted in a .different sense from their literal context. When any doubt or difficulty shall occur in regard to their application, the collectors shall communicate the same for advice to the respective inten- dent, who will submit them, with his opinion, to the superintendency ; and the latter shall decide,- by previous agreement with the superior tribunal having control of the finances, the matter being referred to the supreme government for its approbation or correction." [Translation.] Exemplar No. 1. — Rules for the guidance of the masters and super- cargoes of vessels, Spanish or foreigners, engaged in the importation trade in the ports of entry of the island of Cuba. 1. Masters or supercargoes of transit vessels, entering any of the ports of entry of this island, are obliged, as soon as they have dropped anchor, to present to the officer of the carabiniers who shall come on board, a manifest containing their names, that of the ship, the number of Spanish tons she measures, what her cargo consists of, the name of the place she sailed from, the number of bales of goods or bulks, with the designation of their respective marks, numbers, and names of the persons to whom they are consigned. If all or part of the cargo should happen to consist of salted beef, salt, cocoa, or other articles put up in bulk, these shall be manifested by weight or Castilian measure, specifying, also, the articles of mess, naval and military stores, and the quantity of hard coals they bring for their own consumption, if the vessel be a steamer. CASE OF THE BLACK WARRIOR, ETC 317 2. Masters and supercargoes of vessels putting into said ports by stress of weather, are obliged to present the manifest of their cargo, with the same specification as if it were intended for traffic and to be disposed of in the island. 3. Masters and super*-argoes of vessels entering in ballast are subject to the same obligation. » 4. Those masters who may have been compelled, by bad weather, or by other fortuitous circumstances, to throw overboard part of their cargo, shall likewise set it down in their manifest, specifying, though it were by wholesale, the quantities, bulks, and kinds or species, being obliged to present their declarations to the custom-house, as well as the log-book, in corroboration of their assertions. 5. Those vessels proceeding from Spanish ports with their registers dispatched by the respective custom-houses, are only obliged to mani- fest the effects they bring which are not inserted in the register, articles of mess, and the stores already mentioned. 6. If the master or supercargo fail to present the manifest at the time prefixed, he shall incur a fine of five hundred dollars. 7. Whosoever shall fail to declare the exact number of Spanish tons his vessel measures, shall be obliged to pay the costs which may'be incurred in guaging the same, provided that the excess of tonnage she is found to measure does exceed ten per cent, of what is set down in the manifest. 8. When neither the master nor the supercargo is able to draw up the manifest, that duty shall revert to the consignee of the vessel, or to any of his dependents who may be empowered to that effect. 9. During the twelve hours following that of the delivery of the man- ifest, reckoned from six in the morning till seven in the evening, he who presented the same shall be at liberty to make such alterations in it as he may deem proper, by waiting personally upon the collector if within office hours, or, in the contrary case, upun the chief of the cara- biniers, who is on duty at the custom-house. 10. If, at the expiration of the twelve hours designated by the fore- going regulation, there shall be found on board the vessel any bulks or other effects which have been omitted in the manifest, the same shall be seized, and the master or supercargo mulcted in as much more the amount, of their value, provided that the duties which ought to have been paid for the contents of the bulk or bulks seized do not exceed $400 ; for if they do exceed that sum, and the effects belong to or be consigned to the owner, master, or supercargo of the vessel, the fine shall not be levied, and, in its place, the aforesaid vessel, with her freights and all that belong to her, shall be confiscated. 11. It shall not be allowed to disembark anything without the per- mission of the collector, and the knowledge of the officer of the cara- biniers who may be on duty at the mole. For the simple act of dis- embarking anything, although they may be articles of little importance or free of duty, the master or supercargo shall pay a fine of $1,000 ; and all the effects seized, as well as the boat or launch which conveyed them, shall be confiscated, provided that the amount of duties said ar- ticles would have had to pay does not exceed $200 ; but if it exceed that sum, the fine shall be omitted and the ship confiscated. 318 CASE OF THE BLACK WARRIOR, ETC. ] 2. Nor shall any effects be allowed to be shifted from one ship to another within the bay, either in small or large quantities, without those requisites mentioned in the foregoing rule ; the masters or super- cargoes of both vessels being, in case of contravention, subject to the penalty specified in the rule aforesaid. 13. If any vessel discharge goods, in either small or large quantities, in a port which is not a port of entry, the vessel and all that appertains to her shall incur the penalty of confiscation. 14. If, after having discharged a vessel, there be found wanting any of the bulks set down in the manifest, it shall be understood that the master or supercargo has committed a fraud against the treasury, by fining them in the amount of $200 for each of the bulks missing. 15. If it should be proved upon the visit of the inspector, which must be made to every 'vessel before the papers with which she has to sail are delivered to her, that her cargo exceeds the entry, the same shall be seized, and a fine three times the value of said excess be im- posed upon the master. 16. The seizures which shall be made of articles, produce, or effects attempted to be shipped in a fraudulent manner, shall be subject to the same confiscation and fine which are mentioned in the foregoing article. 17. If masters or supercargoes should not have the means to pay the amount of their respective penalties, there shall be used for the pay- ment of such, and the costs, the vessels which they command, unless their consignees voluntarily come forward to pay the same. A true copy. [Translation.] Observations. In order to avoid the delays which are occasioned to steamers that are only occupied in conveying passengers and the mails in the trips they make periodically from one port of the United States of America to the other, touching at Havana — because such delay is incompatible with their regulations, which only allow them to remain a few hours in said port of Havana, (three or four at the utmost) — a custom has been established of asking the consignees, in advance of the entrance of said steamers, for the register, supposing them in ballast, whenever they do not bring cargo for this port, nor come here to take such cargo. Thus it has always been done ; because, although it is provided in article 1 of the instructions "that the operations of the custom-houses shall commence from the moment that the vessels enter port," that then, or when they are admitted to free practice, the commandant of the cara- biniers is to receive from the captain the manifest of the cargo, taking note of the hour, in order that the aforesaid captain may return to sign, it was understood that these formalities were adopted with reference to national or foreign vessels entering the ports of the island to trade with whatever kind of cargo — an intention which is set forth in article 54, and which coincides with the very remarkable circumstance that CASE OF THE BLACK WARRIOR, ETC 319 in 1847, when the instructions were drawn up, if we are not mistaken, these lines of North American steamers were not established. How- ever this may be, it is a fact that the custom-house has concurred in the custom alluded to. In her last trip the " Black Warrior" brought from Mobile some bales of cotton — an article which is not of trade, which never enters among the staples of consumption in Havana, and for which, therefore, there are no duties assigned by the tariff. Nor do goods which come here in transit, in a vessel that is taking said goods to another port, pay such duties ; consequently it is not to be presumed that the captain of the Wlack Warrior had intended to commit a fraud, v The aforesaid steamer entered this port at seven o'clock in the morning. Supposing the captain to have represented her in ballast in the manifest, it must be taken into consideration that the same instruc- tions, in article fifth, state positively that during the space of twelve hours the captain shall be at liberty to make additions in his manifest, either on account of omissions, irregularities, or errors he may have committed, or in consequence of not having presented the same with the required formalities. In order to allow of no doubt, this same arti- cle fifty says, that these twelve hours shall be comprised from the mo- ment that the ship comes to anchor, and that they must be understood as the hours intervening between six in the morning and seven in the evening ; therefore there can be no doubt that in asking for the bill of clearance the captain had the unquestionable right of making additions in his manifest, and that this privilege could not and should not have f been denied to the consignee, Don Carlos Tyng, when, on being in- formed of the difficulties that had interposed, he asked for the same of the collector of customs, who founded his refusal upon the fact that this right had been forfeited when Don Felipe Nunez, who signed the request in behalf of the consignees, solicited the visit of clearance. There is not one article in the instructions which establishes such a loss of the right of making additions to the manifest, and there must be borne in mind, above all, the custom of which we have before made mention. Let it be remembered that the " Black Warrior's" cargo being in transit, she is not subject to tonnage duties, and still less to importa- * tion duties; she would only have to pay port duty, (derecho de ponton,) which would amount to about $150. Hence, it must be inferred that under no circumstances did these duties or supposed fraud amount to what occasions the fines, and double as much, which are imposed when the fraud is committed against the royal treasury, and which constitute the rule according to article 160 ; because that port duty is merely ar- bitrary, created by the Real Junta de Fomento, and not by the Cajas Reales, or general expenses of the nation. Between the Junta de Fo- mento and the royal treasury, there is the difference of a corporation purely local, which attends to the encouragement of agriculture and the commerce of the province solely, and the government, which in a monarchy, or central power, is at the head of the nation. Besides these remarks, the consideration which is suggested by article 162 appears conclusive; it says: "At the expiration of the twelve hours designated in article 5," etc.; which words, " at the expiration," do not admit of 320 CASE OF THE BLACK WARRIOR, ETC the least doubt, nor allow of an interpretation calculated to subject those bulks which had not been included in the manifest to confiscation, and to impose upon the captain a fine of as much more the amount of their value, or the confiscation of the vessel, freight, and all belonging to her, before that period of time had expired. There is no doubt but that the act of taking possession of the " Black Warrior" was contrary to the instructions, seeing that it began to be carried out four or five hours after her entrance into port, and that to refuse permission to make additions in the manifest, by inserting in it the cargo which she had brought in transit, when the novelty of interrupting the practice or cus- tom followed until then became palpable, was still more illegal. In normal cases, and with regard to vessels entering to trade, the provisions of the instructions could not be interpreted in a different sense from their literal context, seeing that article 203 forbids it ; the confiscation of a cargo brought in transit by a steamer that only comes to this port to leave and to take passengers and the mails, even though setting aside the custom aforesaid, ought to be considered as much less reasonable. The collector of customs should have explained, in his first communication to the superior authorities, that the twelve hours had npi elapsed before ' he ordered the vessel to be seized for the pur- pose of discharging and confiscating the bales of cotton. This sup- pressed fact, although it is not denied, is, fortunately for the master and the owners of the cargo, too well authenticated ; because the steamer having entered at seven o'clock in the morning, the aforesaid twelve hours lasted until the same hour in the evening ; nevertheless, the captain made his reclamation at midday through the consular agent. Subsequently the consignee called upon the collector, and it was only three o'clock in the evening when said consignee, Don Carlos Tyng, returned to the custom-house, and, in the presence of two indi- viduals, requested of the collector to be allowed to exercise the right granted by the fifth article of the instructions. Tyng showed that he had this right in his first memorial, and it was neither denied nor con- tradicted; moreover, from the very day of the ship's entrance, it was undertaken to discharge her, and the. act was only suspended when the captain abandoned the vessel and left her with all the crew. / OPENING OF THE MAILS OF THE UNITED STATES. Mr. Sharkey to the Secretary of State. [Extract.] [No. 19.] Consulate of the United States, Havana, November 8, 1852. Sir: It seems to be difficult to induce either the authorities or people here to believe that our government does not lend its countenance to expe- ditions against this island, although I have again and again assured . them to the contrary. I must inform you that we are not allowed to CASE OF THE BLACK WARRIOR, ETC 321 receive newspapers from the United Stntes through the post office, nor is nny one allowed to bring them on the shore, two or three papers being excepted, as I understand, and it may be trnit other communica- tions are suppressed. This condition, to say the least, is humiliating especially to me. Mr. Sharkey to Mr. Everett. [No. 25.] Consulate cf the United States, Havana, February 21, 1853. Sir: In the absence of a postal arrangement with this island, it has been the custom to dep^site letters intended for the United States in a letter bag kept for that purpose by the consignee of the mail steamers. This bag is closed at the proper time, and sealed, and it is then taken by a clerk of the house and delivered on board the ship. I have never heard any objection made to this custom, nor have the authorities here, as far as I know, ever heretofore claimed any authority over it. On the 19th instant, however, the mail bag intended for the " Empire City," after it had been regularly closed, was seized as it was being conveyed from the house of the consignee, taken to an office, the seal broken, and the contents examined ; alter which it was returned to the indi- vidual who had charge of it,- and by him taken on board the ship. On yesterday a like course was pursued with the mail bag intended for the "Crescent City." The seizure and examination were made, as I am informed, by the chief of police, but of course under the order of the Captain General. It is said that no letters were taken from the bags; I lelt it to be my duty to remonstrate against this course as in- decorous towards my government, and have the honor to enclose you a copy of my communication to the Captain General on that subject. I believe a like course was attempted with the British mails a lew years ago, but it was resisted and abandoned. The British mails, how- ever, are made up at the consul's office. You will see how easily our correspondence, official as well as private, may be obstructed. I was not present at these examinations, but give you the inibrmation on re- liable authority. There is evidently some alarm existing here, but from whit cause 1 know not. I have the honor to be, with great respect, your obedient servant, W. L. SHARKEY, lion. Edward Everett, Secretary (j Stale <>J the United Slates. Consulate cf the United States, Havana, FSruary, 21, 1853. Most Excellent Sir: Inibrmation has reached me that on the 19th and 20th instant, the mail bags intended for the United States mail steamers Empire City and Crescent City were seized by the public authorities after they had been regularly closed and sealed, as they 21 322 CASE OF THE BLACK WARRIOR, ETC were being carried from the house of the consignees and agents ot' those ships (Messrs. Drake & Co.) to the wharf, the seals broken, and the contents of the bags examined. It is not my province to discuss this question as one of national concern , it will be referred to the gov- ernment at Washington, where, I doubt not, it will be duly considered. But I must nevertheless avail myself of the occasion to express my deep regret at the occurrence, and respectfully, but decidedly, to re- monstrate against it as discourteous towards my government, for the following reasons : The United States mail steamers which touch at this port have been running under the employment of the government for more than five years. During that time they have constantly brought regular mails from the United States, and have deposited them in the post office here, and have thus rendered essential service to this government, and have also contributed to the interests of commerce, to the convenience of the inhabitants, and to the interests of the Post Office Department of the island. During the same period, in the ab- sence of a postal arrangement, it has been the uniform custom to deposite letters lor the United States in a letter bag kept for that purpose by the consignees of the ships, who at the appointed time, closed and sealed it, and delivered it on board the ship, where it was received as the mail of the United States. If I am not misinformed, the officials of this government have, very often availed themselves of this facility. To this custom, although well known, no objection has heretofore been made or restriction imposed. On the contrary, it has been tacitly ap- proved and sanctioned, and had thus assumed the character of a cus- tomary regulation. The sudden interruption in a matter of comity so beneficial, and which has so long existed without any intimation of an intended change, may well be regarded as ground of surprise. The government of the United States has had no intimation whatever that this custom was not altogether agreeable, or I am sure it would have been abandoned. Our Post Office Department must be supposed to have given its ap- proval to this mode of making up the mails here, under the supposition that it was entirely approved here, and it has therefore incurred the responsibility of delivering all such letters as might, be mailed here ; and it is to be regretted that it was thought necessary to depart from the customary mode, as the government of the United States 1ms in the most unrestricted manner given the full benefit of its mail arrange- ment to this government, and has, moreover, been steadfast in its friend- ship towards the government of her Catholic Majesty, and more espe- cially towards this island. I have the honor to be, with all due respect, your obedient servant, W. L. SHARKEY, Consul of the United States. His Excellency Senor D. Valentin CaJyedo. Governor arid Captain General, t$c, c^t-., &fc. CASE OF THE BLACK WARRIOR, ETC 323 Mr. Sharkey to the Secretary of State. [Extract.] [No. 27.] Consulate of the United States, Havana, March 12, 1853. Sir : In my dispatch No. 25 of the 21st ultimo, I had the honor to communicate the facts in reference to the opening of the mails of the United States by the authorities of this city, and also to forward a copy of my communication to the Captain General on that subject. I have now the honor to forward his reply, and also to state that no other mails have since been subjected to examination. ****** I have the honor, &c, W. L. SHARKEY. Hon. Secretary of State of lite United States. [Translation.] [l. s.] Political Secretary's Office, First Section, I have received the communication that your lordship addressed me under date of the 21st ultimo, in consequence of the bags containing the mails made up at the commercial house of Drake & Co., and destined for the United States mail steamers, having been examined by the chief of the police. Independently of your lordship's (incompetencia) want of authority in the matter which your lordship acknowledges, I must state to you that the said search having been effected within Spanish territory, and at a time especially when they were in possession of private persons, not clothed with any official character, in no manner have the friendly relations between both governments, nor the deference due to their agents, been affected by that act. Whether the bags were sealed or not, it is evident that on their cross- ing the line of the custom-house guards established on the coast, and consequently on the wharves of this city, a mere guard would have had sufficient authority to cause them to be opened ; and I even add that he would have been obliged to do it, for the purpose of ascertaining if there were among their contents matters on the exportation of which the royal treasury was entitled to duties. And if there can be no doubt in this, much less will there be for acknowledging the same powers in a functionary of infinitely higher station, and who, as the chief of po- lice aforesaid, independent of this office, holds high rank in the service of the State. Your lordship is well aware of the exceeding!}' temperate manner in which the acts were effected — that the greatest legality pre- sided in them ; and finally, that nothing was done but to look", in a few moments, over the addresses of the letters, after adopting the proper precautions to avoid that malice or ignorance should give them after- wards an appearance of violence or irregularity. Your lordship is no less aware of the good disposition on the part of 324 CASE OF THE ELACK WARRIOR, ETC my authority to attend to your wishes, even in unofficial matters, of which are authentic evidence certain recent acts which I do not sup- pose your lordship may have forgotten. On this account I am the more surprised at your lordship's entertaining, for an instant, a doubt of my good dispositions, and of the especial care with Which I endeavor to avoid all that may offend the sincere and cordial friendship of the respectable American government. God preserve you many years. Havana, March 2. 1853. VALENTIN CANEDO. To the Consul of the United States. Mr. R-jlertson to Mr. Marcy. Consulate of the United States, Havana, August 29, 1853. Sir: Information has just been brought to me that a nwal order has b?en received here instructing the Captain General to have all the mails for the United States made up at ihe Spanish post office, and not to allow the present practice for the future. I am also informed that the British mails are exempted from the order — they are made up at the British consulate. I give you this information as a fact not to be doubted. ^1 have the honor, &c, W. H. ROBERTSON. Wm. L. Marcy, Secretary of Slate, Washington. Mr. Robertson to Mr. Marcy. Consulate of the United States, Havana, August 29, 1853. Sir: The Spanish post office in this city has been tor some time past in the habit of cutting open letters coming Irom the United States, before proceeding to give them out. It is understood that it is done by order of the Captain General, and that their object is to see if the con- tents is printed matter ; in which case, (it is stated,) the party to whom it is addressed is called to open it in the presence of some officer of the government. Several letters addressed to Hon. Judge Clayton, United States consul at Havana, and to myself, as consul, have been cut open. As such acts on the part of the authorities here are very discourteous, and imply suspicion against this consulate, I have deemed it my duty to remonstrate with the Captain General. The annexed is a copy of my communication to his excellenc} r . Hoping that my course will meet your approval, I have the honor, &c.j &c, W. H. ROBERTSON. Wm- L. Marcy, Secretary of State. CASE OF THE BLACK WARRIOR, ETC 325 Mr. Robertson to the Cjptuin General. Consulate of the United States, Havana, August 29, 1853. Most Excellent Sir : I regret that I have been disappointed in four different attempts to pay my respects to your excellency, the object of which was to remonstrate with your excellency against the repeated indignities practised in your post office towards the consulate of* the United States, in the cutting open of sundry letters directed to the Hon. Judge Clayton, United States consul at Havana, and others directed to the undersigned as consul. Satisfied in my own mind that such an in- dignity (implying suspicion of this office) cannot meet your excellency's sanction or approbation I communicate the fact to you, in the full confi- dence and hope that it will not be repeated. I have the honor to be. &c, &c, your excellenc3''s, &c, W. H. ROBERTSON. His Excellency Senor Don Y t alentin Canedo, Governor and Captain General of Cuba. Mr. Robertson to Mr. Marcy. [Extract.] [No. 55.] Consulate of the United States, Havana, September 13, 1853. Sir: Referring to 'my communication of the 29th ultimo, No. 52, and the document therewith enclosed, I now have the honor to transmit to you a copy of the Captain General's reply to my letter. His excel- lency gives in detail the reasons that have induced the government to take the measures complained against by me, but assured me that he had given orders to the postmaster of Havana not to effect any exami- nation of the correspondence addressed to this consulate. However, the United States mail steamer El Dorado arrived here on the 6th instant, from New York, bringing among other letters for me, or to my care, a large package addressed " United States consul, Havana," from your department, bearing the seal thereof. This package was cut. I immediately called on the Captain General and showed him the package. Without replying, he rang his bell violently and called his political secretary, of whom his excellency inquired if he had communicated to the postmaster his orders in regard to the correspond- ence of the American consulate. The secretary said lie had. The Cap- tain General desired him to reiterate his orders, and see that the thing did not happen again ; then turning to me, he expressed his regret at the occurrence, and assured me that it should not be repeated. I there- fore accepted his excellency's assurances, and thanked him for his promptness. I have the honor, &c., W. H. ROBERTSON, Acting Consul. 326 CASE OF THE BLACK WARRIOR, ETC- Mr. Robertson to Mr. Marcy. [Extract.] Consulate of the United States, Havana, October 14, 1853. Sir: * #**'.## As my communication of the 13th ultimo, No. 55, must have reached you long before this time it is needless for me to say more on the sub- ject, except that since the day of my interview with the Captain Gen- eral mentioned in that letter I have had no reason for complaint on that account. I have the honor, &c, W. H. ROBERTSON, Acting Consul. W. L. Marcy, Secretary of State. Mr. Marcy to Mr. Pierce. Department of State, Washington, February 1, 1854. Sir : You will receive, prior to the sailing of the next steamer for Havana, a bag directed to your care, containing public dispatches for the United States consul at Havana. This bag will be closed in this department, and is not to be opened until its delivery to the United States consul in Havana. On the receipt of this bag you will intrust it to some discreet person on board the steamer, who will deliver it to the consul in person. The commander of the steamer would, doubtless, be quite willing to take it in charge. You are specially instructed that neither this bag nor any others that may be hereafter sent to the United States consul in Havana are to be opened in New York ; nor is any matter whatever to be conveyed in it except what is transmitted from this department. The enclosed dispatch, addressed to the United States consul at Havana, containing the keys of the mail-bag, I will thank you to send by some individual, whom, you will request to place it in the hands of the consul. I am, &c, W. L. MARCY. J. Franklin Pierce, Esq., JJ. S. Dispatch Agent, New York. A CASE OF THE CONTOY PRISONERS. Mr. Campbell to Mr. Clayton. [Extract.] Consulate of the United States, Havana, May 19, 1850. Sir: On the arrival of the steamer Ohio the Captain General or- dered that she should not be permitted to occupy her usual anchorage, CASE OF THE BLACK WARRIOR, ETC 327 but ordered her anchored at the mouth of the harbor, and that none of her passengers for Chagres be permitted to land. The captain thought the anchorage unsafe, and protested against it without avail, this gov- ernment at the same time denying any responsibility for accidents that might happen to the steamer from the insecurity of her position. The cause of the order is only conjectural, but is supposed to proceed from dispatches received from New Orleans by the schooners Fairy and Heroine, that arrived some forty hours in advance of the Ohio, under charter (it is said) by the Spanish consul. You are better informed of what has passed, and is passing, in rela- tion to the expedition, than we can be in Havana, and I will not, there- fore, presume to give you reports, but only observe that great excitement prevails here. Some nineteen armed vessels of the Spanish navy are coasting around various parts of the island to intercept the reported ex- pedition. I do not myself believe them very efficient, and should the invaders be in steamers, doubt not but they will be enabled to effect a landing. The government is receiving three thousand militia in Havana to garrison and protect the city - in the event of the necessity of sending all the troops to the interior. Those officers that are placed in command, with whom I am acquainted, have never discharged a military duty, or fired a gun. We shall probably have a good deal of disorder in the city, if civil war should break out. The lower classes are ignorant, idle, debased, and only kept in order by the strong arm of the military. When that is removed it is not easy to foretell the consequences, as they may think insults and attacks upon Americans would be acts acceptable to the authorities who are believed to doubt the good faith of the Presi- dent, the entire government, and suspect the connivance of all Ameri- cans. # # # # & I enclose herewith a translated editorial of the official marine paper of this da} 7 , and of an order published in the Gazette of the 18th instant, by which you will see what the Spaniards think of the expedition. The order exhibits their method of arresting fugitives. I have the honor to be, &c, ROBERT B. CAMPBELL. Hon. John M. Clayton, Secretary of Stale, Washington City. [Translation.] Don Francisco Javier Mendoza, knight of the royal American order of Isabel the Catholic, captain of infantry, with a medal of distinction, and one of the prosecuting attorneys (fiscal) of the court of the perma- nent executive military commission of this island. Whereas Don Cirilo Villaverde, who made his escape from the prison of this capital, Don Jose Maria Sanchez Isnaga, Don Ambrosio Jose Gonzalez, Don Juan Manuel Macias, the Licentiate Don Pedro Aguero, Don Victoriano de Arrieta, Don Caspar de Betancourt y Cis- 328 CASE OF THE BLACK WARRIOR, ETC meros (alias el Lugareno,) and Don Cristobal Madan, whom I am pros- ecuting for the crime of conspiracy against the legitimate rights of her Majesty, (whom God save,) directed to bring on an insurrection in this country and the island of Puerto Rico, to obtain their independence from the metropolis — the two former, who have before been tried, and incurred the penalties of rebels, insisting in their previous criminal pro- jects, have absconded themselves from this city, and other places of the island where they had been residing, exercising the powers conferred by royal ordinances upon officers of the army — I do by this, my first proclamation, cite, call, and summon the above named individuals to present themselves personally, within the precise term of nine days, at the public prison of this place, to produce their pleas and legitimate defences, in the understanding that if it is not complied with in the given time, the actions will be continued against them, and they will be sentenced as rebels by the council of war of this court, without being further called or summoned, for such is her Majesty's will. Let this proclamation be fixed at the customary places, and published in the official Gazette, that it may reach the notice of all. FRANCISCO JAVIER MENDOZA. Jose Fernandez Cota, Secretary. Havana, May 17, 1850. Translation from the " Diario dc la Marina," of Havana, dated Sunday y May 19, 1850. It is publicly said that the pirates are about to carry into effect their villanous plans of invasion of this tranquil Antille. The last news from the neighboring continent appear to leave no doubt about the pre- parations made for undertaking an enterprise, the result of treason, and which could only have met the concurrence of the most ignorant and desperate rabble, that docs not mind dangers, does not examine risks, and for whom the most capricious rapacity is the supreme law of action. In truth, it was time that the pirates should go to sea — that they should come out displaying their forces and vigor ; it was time for them to come to try on our coasts that heroism they boast of; it was time that the heroes of the most infamous vandalism should become ac- quainted with the loyalty, bravery, and discipline of our navy and army- — the loyalty, bravery, and patriotism, of the inhabitants of Cuba. And it would really be a pity that they should not reach the coast — a pity that the smell of Spanish powder should frighten away the vul- tures ! — a great pity that those boasts should become reduced to mere sham ! Great crimes need a greater chastisement; and we would am- bition for our history the honor of inflicting it. Is it not to be permitted a faithful people to wish occasions on which to display to the world with pride their honest and generous heart ? It is true that the quality of the undertaking, and the importance of those who intend to carry it on, do not even present them to us in such CASE OF TEE BLACK WARRIOR. ETC 329 a shape that a victory over them could flatter the pride of those who have in. their veins the blood of Pelago and Cortes. But small as the glory might be, that rabble being a real plague, in destroying it, would not we do a signal service to humanity? This is precisely the reason why we anxiously desire the villains to attempt coming upon our coast. On the other part, after so much has been said about the pretty expedition, when an attempt has been making to wound the susceptibility of our race, is it not to be allowed us to anxiously desire that the purity of our blood should be put to the proof, if it is only that of one single man that any one should wish to examine ? It is well to consider the forces of the expedition contemptible before our immense resources, and small the honor we might acquire by destroying those pirates ; but let them come to our shores, that we may at once know the extent of their mad- ness, and exhibit on them an imperishable chastisement. Mr. Campbell to Mr. Clayton. [Extracts.] Consulate of the United States, Havana, May 22, 1850. Sir : I have the honor to enclose, herewith, a copy of a short corre- spondence with the Captain General, growing 1 out of a publication in the Evening Bulletin of the 20th, one of the government papers. The Bulletin stated that the general of marine had captured at Contoy two vessels and some hundred men. Knowing nothing of the particulars, beyond the report which you will find republished in the paper of the morning of the 21st, herewith transmitted, my letter to the Captain General was written with great caution and respect, as you will see. I enclose, herewith, a translated proclamation and edict of the Cap- tain General, declaring the island in a state of siege, and proclaiming martial law, &c, &c. ; a translated copy of the account given of the capture of two vessels, and about one hundred men at Contoy, with the comments thereon. I have the honor to be, sir, &c, ROBERT B. CAMPBELL. Consulate of the United States, Havana, May 20, 1850. Sir: Having understood that his excellency the general of marine had captured, on or near the Isle of Contoy, two vessels, and about one hundred men, I would respectfully ask of your excellency whether the vessels were or not under the American flag. If under the American flag, whether or not they were furnished with regular and proper 330 CASE OF THE BLACK WARRIOR, ETC. papers ; whether the men were, in whole or in part, American citizens. Should the captured vessels be bona fide American, and the men, or any part of them, American citizens, I would at the same time respectfully ask of your excellency to be informed of the circumstances of the cap- ture and arrest, and the nature of the offence charged against them. I have the honor to be, with considerations of great respect and esteem, your excellency's most obedient servant, ROBERT B CAMPBELL. His Excellency the Count of Alcoy, Governor and Captain General of the Island of Cuba. [Translation.] [seal.] Political Secretary's Office. As the captured vessels referred to in your lordship's communication of yesterday have not arrived in this port, and his excellency the com- mander-in chief of this naval station is not here, it is not possible for me to give an answer to the particulars embraced in your said letter, which I shall be enabled to do upon having information when his ex- cellency returns. Which I communicate to your lordship in answer. God preserve your lordship many years. Havana, May 20, 1850. THE COUNT OF ALCOY. The Consul of the Ufiited States of America. GOVERNMENT AND CAPTAIN GENERALCY OF THE ALWAYS FAITHFUL ISLAND OF CUBA, POLITI- CAL SECRETARY'S OFFICE. Inhabitants of the always faithful island of Cuba: The Governor Captain General and commander in chief of her Ma- jesty's army to-day addresses you, to make known to you that some depraved foreigners, without opinions or principles, without country or feelings — the miserable dregs, in their greater part, which the convul- sions of Europe have thrown upon America in these last years, and the same who last year attempted to come to the island from the territory of a friendly nation, where they commenced to assemble — are at last this &&y upon our soil, to try to realize their rash and infamous under- taking — an undertaking unexampled in the annals of the civilized world — a vandalic attempt, having no other object or purpose but pil- lage, licentiousness, the ruin and destruction of a country a model of happiness, which they barefacedly announce as offering them a better field for enriching themselves than the Californias, with the spoliation of all property, to be distributed among themselves as the recompense of their exploits, with the breaking up of all bonds, and the relaxing of all those ties which constitute society in this precious Antille, and by which means she has arrived to that state of prosperous fortune she now flourishes in. Their vehement desire is to sink her to a state of CASE OF THE BLACK WARRIOR, ETC 331 anarchy, and bring on the horrors of a civil war, but of a civil war, the character and consequences of which «I need not enumerate to you. But keep calm, however. I was prepared to receive them. Their destiny carries them to their goal, and they shall obtain it. I assure you that the sacred rights of nations and of Spanish nationality cannot be violated at a less cost. Your well-known fidelity, more than the interests of family and property, is to me a perfect guarantee. I un- derstand the cry of indignation with which you will repel the villains ; but their blindness deceives them, and they perhaps do not hear it. It is on this account that I take charge of the message, with the loyal and brave army under my command, in the same manner that her Majesty's navy will do it on the waters of the island, and anywhere that the}* should run to hide themselves. Inhabitants ! I hope that no one will observe a wrong conduct. Trust to the vigilance of the authorities, and in the forces of the Queen confided to me for }*our protection, and for the defence of her dominions. A respect for the laws, and consideration lor the noble behavior of every honest resident, will be the soldier's guide. A rigorous and un- limited punishment, mind you, will await those who should forget what the country expects of all her children, let them be Spaniards of one or the other hemisphere. The hour of combat has sounded, and its effect shall be heard of in these seas, without any human consideration or reflection restraining me. Do not, however, forget that calm will soon awake again. THE COUNT OF ALCOY. Havana, May 19, 1850. [Translated from the Diario de la Marina of Havana, May 21, 1850.] Our readers have already seen, in the extra published yesterday by us, the result 'of the first attempt which our most excellent com- mander general had with a part of those who no doubt, in a moment of drunkenness, intended to disturb the peace we enjoy. We are informed that such was their fright, the meanness and cowardice displayed in his presence by those who call themselves the heroes of Palo Alta, that they inspired him with the most profound and deserved contempt. They not only surrendered without fighting — not only weakly implored, like miserable women, for an undeserved pardon, but the}* had no hesi- tation in resorting to the meanest and most contemptible means. Such are the men who, in their drunkenness, dreamed of conquering the island of Cuba! Compare that conduct to that of our gallant soldiers, and the world will wonder at their stupid attempt. The case is this : the}* believed they had merely to arrive and reap the profits of their piracy. In their delirium they- imagined themselves owners of the thousands of dollars offered them by the traitors, and of the rich soils, the products of which were to furnish them the means of easily enrich- ing themselves. This hope increased their ambition, and they said, let us go to Cuba ; but they met on their wa}~ a man with a Spanish heart, and the sight of him terrified and confounds them, and in his 332 CASE OF THE BLACK WARRIOR, ETC. presence they become humiliated, discouraged, and debased. The samo will very soon happen with the- rest. It is probable that their worthy chief, celebrated in other lines of action, will seek, in a shameful flight, the only means of getting out of his difficulties ; but uselessly: our worthy authorities have taken the necessary measures, and the hour of expiation has already sounded for him. We do not know whether