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SPEECH 
 
 OF 
 
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 ON.VOLNEYE. HOWARD, OF TEXAS, 
 
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 ON THE 
 
 ACQUISITION OF CUBA. 
 
 DELIVERED 
 
 IN THE HOUSE OP REPRESENTATIVES, JANUARY 6, 1853. 
 
 
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 WASHINGTON: 
 
 PRINTED AT THE CONGRESSIONAL GLOEE OFFICE. 
 
 1853. 
 
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CUBA. 
 
 In the Committee of the Whole on the state of the 
 Union, on the duty of the United States to take 
 possession- of and hold the Island of Cuba- 
 Mr. HOWARD said: 
 
 Mr. Chairman: I have risen to address some 
 remarks to the committee in reply to the observa- 
 tions of the honorable gentleman from New York, 
 [Mr. Brooks,] the other day, touching the course 
 of the Administration in relation to the subject of 
 Cuba. I think he has done great injustice both to 
 the law and to the facts connected with the course 
 of conduct pursued by the Administration, and that 
 he has also done injustice to the American citizens 
 who were the victims of Spanish cruelty connect- 
 ed with this affair. It is manifest that the subject 
 of Cuba is becoming one of great and growing 
 national interest in this country. Its importance 
 to my own State consists in this, that if Cuba was 
 in the hands of an adverse or unfriendly maritime 
 Power of any great strength, it would "be impos- 
 sible for the States bordering on the Gulf of Mex- 
 ico to get their products to market; our great 
 staples must rot upon the wharves of our southern 
 commercial cities. It is, therefore, a subject to ' 
 which we must direct our attention and dispose of 
 in some form or other. 
 
 Now, sir, in relation to the expedition which 
 was the subject of the gentleman's comments, I 
 agree in one view expressed by him, and that is, 
 that it was the duty of this Government to sup- 
 press all illegal private enterprises against Cuba, 
 or any other foreign country. And, sir, it gives 
 me pleasure to be able to say upon this occasion, 
 that the Administration of Mr. Polk did suppress 
 an illegal expedition that was contemplated shortly 
 after our late peace with Mexico, and into which 
 an effort was made to draw our soldiers on their 
 return. 
 
 The letter of Mr. Buchanan, the Secretary of 
 State of Mr. Polk, which has been so improperly 
 published by this Administration, shows that that 
 Administration interposed and suppressed a con- 
 templated expedition against Cuba; that it issued 
 directions to the officers of the army, and to all its 
 civil officers who could act on the subject, direct- 
 
 ing that measures be taken that any such ex- 
 pedition should be suppressed. The measures 
 adopted were efficient, and in this respect, the 
 conduct of Mr. Polk's administration stands out 
 in bold and honorable contrast with the course 
 of his successors, for two such enterprises have 
 since been set on foot, and descents upon Cuba 
 effected in both instances. If the present Admin- 
 istration did not permit this expedition to go out, 
 they were at least guilty of great negligence in 
 relation to the matter, for which they ought to be 
 held responsible to a just public opinion. For, 
 sir, I lake it to be an absurdity to say that this 
 Government, with all its power, could not arrest 
 an expedition confined to a single steamer. The 
 use of ordinary Jiligenceand exertion would have 
 prevented that expedition from going out. Gen- 
 tlemen on the other side cannot, "therefore, accuse 
 a Democratic Administration of this country of 
 being negligent in relation to these expeditions 
 against a neighboring Power; and in that respect, 
 the Democratic party of this country stands in a 
 much more favorable light, not only here, but else- 
 where. 1 have no doubt that General Pierce will 
 take efficient means to maintain and enforce the 
 neutrality laws of the country. 
 
 While I am upon this subject, I may as well 
 refer to another question. I am in favor of the 
 Monroe doctrine; but I am not inclined to sustain 
 certain resolutions that have been introduced into 
 the other branch of Congress by one of the great- 
 est statesmen of the country, which gives a formal 
 notice to the world, that when any foreign Power 
 attempts to settle or colonize on this continent 
 we will consider it an unfriendly act, a cause of 
 war. I am not for abstract legislation on any 
 subject. I do not see the propriety, by a joint 
 resolution of Congress, of serving notice upon the 
 wnole world, after the manner of Richard Roe 
 and John Doe in an action of ejectment, that 
 whenever a colonization establishment, or any 
 other settlement, shall be made upon this continent 
 by a European Power, it shall be immediately a 
 cause of war. I think that abstract legislation in 
 all instances, is improper. The court which 
 
4 
 
 wanders beyond the record in deciding a case, in 
 judicial proceedings, generally has to retrace its 
 steps; and when the legislator attempts abstract 
 legislation in advance of the times, he commits a 
 fault still greater, and more inexcusable. I prefer 
 that each case should be left to its own circum- 
 stances. It is the part of wisdom to leave every 
 case to be determined by its own circumstances. 
 They will not only be a law for themselves, but 
 find a means for their own peaceful Vtlution. To 
 attempt to determine this matter by legislation is 
 not compatible with the theory of our Government. 
 In the first instance, it is more properly a question 
 for the diplomacy of the Government; and in the 
 next place, if diplomacy fails, it is a question for 
 the war-making power. . To declare this policy 
 by a law, in the shape of a joint resolution, would 
 in a great measure take it out of the hands of our 
 diplomatic agents, and limit the discretion of the 
 President, to whose custody it has hitherto been 
 confided. Sir, it must be apparent to every re- 
 flecting man, that the European Powers are much 
 more likely to quietly concede Cuba to us if we 
 do not thus ostentatiously assert such a principle 
 by legislation, than they are to acquiesce in this 
 doctrine so broadly stated as it has been put forth 
 in those resolutions to which I allude. It is rather 
 calculated to irritate than to be of any practical 
 benefit. 
 
 But, sir, I do not think that the Senate reso- 
 lutions state the Monroe doctrine fairly. The 
 Monroe doctrine is, that if colonization upon this 
 continent by European Powers shall endanger our 
 safety, shall conflict with our great national inter- 
 ests or peril our institutions, then it will be a cause 
 of war; but it is not, as these resolutions seem to 
 contemplate, that every settlement upon any sand- 
 bank on this continent is an offense, which is to 
 result in war. I am opposed to any declaration, 
 by legislative enactment or by joint resolutions of 
 Congress, which would compel us in honor to go 
 to war if a European Power should happen to take 
 possession of any unimportant or barren spot 
 upon this continent. I am in favor of this doctrine, 
 that whenever a European Power undertakes to 
 make a colonial establishment here which inter- 
 feres with our great national interests, our national 
 safety, or our institutions, we will then resort to 
 the last argument, if the last argument becomes 
 necessary to free ourselves of the difficulty; but I 
 do not go beyond that. I am in favor of a prac- 
 tical enforcement of the doctrine when any neces- 
 sary case shall arise. 
 
 But, sir, I am opposed to these resolutions for 
 another reason. They are inadequate to the sub- 
 ject. They go upon the ground that we will not 
 permit any foreign country to establish any settle- 
 ment here; but at the same time that we permit 
 present establishments to remain as they are, 
 that we will never acquire Cuba without the con- 
 sent of Spain. Now, I am at a loss to understand 
 on what the Monroe doctrine, taking that view of 
 the subject, is held to be based. If it has any 
 sound basis, it must rest on a question of safety — 
 that these colonial establishments interfere with 
 our commerce and institutions, and endanger the 
 stability of our Government. "Well, if any exist- 
 ing establishment upon this continent interferes 
 in the same way, and is pregnant with the same 
 dangers, is there not as much reason that an ex- 
 isting establishment shall cease as there is that a 
 
 new establishment or colony shall not be created? 
 The one principle is precisely as broad as the other, 
 and controlled by the same reasons. Sir, it is not 
 a sound principle of international law which is 
 attempted to be asserted by the Senate resolves. 
 The whole doctrine rests, and can be based upon 
 nothing else than that we have a right, under the 
 international code, to take all those precautionary 
 measures which the safety of the nation requires. 
 Therefore, sir, for one, while Cuba remains in its 
 present position — while it remains quietly under 
 the power of Spain — while its present domestic 
 relations are continued and its internal policy 
 does not endanger our safety — I see no necessity 
 for our attempting any design upon it. 
 
 But, on the contrary, if the projects of England 
 should ever take a definite form, which have con- 
 tinued from 1820 to the present time — if there 
 should be danger that any great maritime power 
 will take possession of Cuba, and thereby dis- 
 turb our safety, by locking up the commerce of 
 the Gulf, including as it does that of the valley of 
 the Mississippi and eight or ten States, then , under 
 the international code as laid down by Vattel, 
 Wheaton , and others, and as the principle has been 
 stated by Chancellor Kent, we would be justified 
 in taking possession of Cuba, although we might 
 in justice and fairness be afterwards compelled 
 to make a fair compensation for it to Spain, if the 
 necessity for such a measure was created without 
 any fault on her part, and if her conduct towards 
 us had been fair and just. 
 
 Chancellor Kent thus states the rule on this sub- 
 ject: 
 
 " Every nation has an undoubted right to provide for its 
 own safety, and to take due precaution against distant as 
 well as impending danger. The right of self-preservation 
 is paramount to all other considerations. A rational fear 
 of an imminent danger is said to be a justifiable cause of 
 war." — Kent, Vattel, b. 2, c. 4, section 49, 50. 
 
 I can well conceive that that necessity will 
 probably arise. If any one of the great European 
 Powers were to attempt to possess themselves of the 
 Island, or if they were to attempt, what has been 
 threatened, to change the institutions of the Island 
 so as to make it a second St. Domingo, with a view 
 of striking a blow at slavery in the United States, 
 and thereby endanger the peace and security of 
 the slave States upon the Gulf, then it would be 
 the duty of this Government to interfere, and take 
 possession of the Island and hold it as an Ameri- 
 can State or an American province. 
 
 The southern States on the Gulf would never 
 permit Spain, as a matter of revenge in the case of 
 a revolution by the Creoles, to abolish slavery in 
 that Island, with a view to the destruction of the 
 planters. They cannot permit such an example 
 to be successful so near their shores. The instinct 
 of self-preservation is too strong. This measure 
 was threatened during the invasion of Lopez; it 
 never can succeed so long as slavery exists in the 
 United States; and any attempt of that sort, either 
 by Spain or any other Power, will be followed by 
 an immediate seizure of the Island, either by this 
 Government or by the slave States on the Gulf of 
 Mexico. There is no principle of international 
 law that would require a great Government like 
 the United States to permit itself to be thus 
 assailed through a small colonial dependency of 
 another and distant Power. England has been 
 
very prompt to protect herself from like dangers 
 by at once taking possession of the point of dan- 
 ger. If Cuba had been as near her possessions 
 as ours, she would have seized it long since on 
 half the provocation. 
 
 On what principle do the British hold Gibraltar, 
 Malta, and several other strong positions, which 
 give them control over the commerce of the world ? 
 Why, they have assumed them as being necessary 
 to the protection of their own commerce. Upon 
 this question of necessity, the policy of the Gov- 
 ernment is well settled, if Cuba should ever pass 
 from the dominion of Spain ..to that of any other 
 Power. The danger to be apprehended to this 
 country and its institutions from the acquisition of 
 Cuba by any other Power, as well as the intrigues 
 of England in relation to the subject, have been 
 pointed out and made the subject of comment by 
 nearly every Administration for more than thirty 
 years. These dangers were 'suggested by Mr. 
 Adams while Secretary of State in 1822, in his 
 official dispatches to our Minister to Madrid. In 
 his dispatch to Mr. Forsyth, he says: 
 
 "The present condition of the Island of Cuba has excited 
 much attention, and has Jiscome of deep interest to this 
 Union. From the public dispatch and other papers which 
 you will receive with this, you will perceive the great and 
 continued injuries which our commerce is suffering from 
 pirates issuing from thence, the repeated demands made 
 upon the authorities of the Island for their suppression, and 
 the esertions, but partially effectual, of our own naval force 
 against them."' * * * " From various sources intima- 
 tions have been received here, that the British Government 
 have it in contemplation to obtain possession of the Island." 
 * * * " There is reason also to believe that the future 
 political condition of the Island is a subject of much anxiety 
 and of informal deliberations anvwig its own inhabitants; 
 that both France and Great Britain have political agents 
 there, observing the course of events, and perhaps endeavor- 
 ing to give them different directions." t 
 
 In hi? dispatch of April, 1823, Mr. Adams again j 
 comments upon the designs of England, witlTref- 1 
 erence to the Island; upon the impossibility of its ! 
 inhabitants maintaining an independent govern- 
 ment, alleging, that " their only alternative of de- ! 
 pendence must be upon Great Britain or upon the 
 United States." In commenting upon the neces- 
 sity of Cuba to the United States, he says: 
 
 "Such, indeed, are, between the interests of that Island 
 and of this country, the geographical, commercial, moral, 
 and political relations, formed by nature, gathering in pro- 
 cess of time, and even now verging to maturity, that, in 
 iooking forward to the probable course of events, for the 
 short space of half a century, it is scarcely possible to resist 
 the conviction that the annexation of Cuba to our Federal 
 Republic will be indispensable to the continuance and in- 
 tegrity of the Union itself." 
 
 After Mr. Adams was elevated to the Presidency, 
 he maintained his policy in relation to Cuba, which 
 was substantially repeated to our Minister to Spain 
 in 1825, by his Secretary of State, Mr. Clay. In 
 1827, our Minister to Spain, Mr. A. H. Everett, 
 gave information to the Government of an effort 
 of England to revolutionize Cuba, based upon a 
 dispatch of the Spanish Minister at London. The 
 Spanish Minister admitted to Mr. Everett, that 
 his Government had received information of the 
 
 | efforts of England. Mr. Everett says in his dis- 
 
 | patch of December 12th, 1827: 
 
 " I then mentioned to Mr. Salmon that, according to the 
 information which the Government of the United States 
 had received, the object of the plan was to place the Island 
 under the protection of Great Britain ; but that the form of 
 a declaration of independence was to be adopted, in order 
 to avoid awakening the jealousy of the United States; that 
 the United States would not, of course, be deceived bythis 
 artifice ; that they could not view with indifference these 
 movements of the British Government, considering it, as 
 they did, as a settled principle, that the Island must in no 
 event pass into the possession of, or under the protection of 
 any European Power other than Spain." 
 
 Mr. Van Buren, as Secretary of State, in 1829, 
 in his dispatch to our Minister to Spain, alluded 
 to the designs of England and France with refer- 
 ence to Cuba and Porto Puco. With reference to 
 the importance of the former to the United States, 
 he said : 
 
 "The Government of the United States has always 
 looked with the deepest interest upon the fate of those 
 Islands, but particularly Cuba. Its geographical position, 
 which places it almost in sight of our southern shores, and, 
 as it were, gives it the command of the Gulf of Mexico and 
 the West India seas, its safe and capacious harbors, its rich 
 productions, the exchange of which, for our surplus agri- 
 cultural products and manufactures, constitutes one of the 
 most extensive and valuable branches of our foreign trade, 
 render it of the utmost importance to the United States, 
 that no change should take place in its condition which 
 might injuriously affect our political and commercial stand- 
 ing in that quarter. Other considerations, connected with 
 a certain class of our population, make it the interest of 
 the southern section of the Union that no attempt should 
 be made in that Island to throw off the yoke of Spanish de- 
 pendence, the first effect*of which would be the sudden 
 emancipation of a numerous slave population, the result 
 of which could not but be very sensibly felt upon the adja- 
 cent shores of the United States." 
 
 Mr. Forsyth, as Secretary of State, in his dis- 
 patch in 1840, repeated the views of his predeces- 
 sors, and warned our Minister to be on the look-out 
 against the designs of England on Cuba, of which 
 the Governmemvhad been advised. Mr. Webster, 
 in his dispatch as Secretary of State, to our Min- 
 ister to Spain, says: 
 
 "The archives of your legation will show you that the 
 subject of the supposed designs upon the Island of Cuba by 
 the British Government is by no means new, and you will 
 also find that the apprehension of such a project has not 
 been unattended to by the Spanish Government." 
 
 In January, 1843, Mr. Webster communicated 
 to our Consul at Cuba, the contents of a communi- 
 cation which he had received from a " highly re- 
 spectable source," as to renewed designs of Eng- 
 land upon Cuba. The writer makes statements 
 about the designs of the British Ministry and 
 British abolitionists, to bring about a revolution in 
 Cuba, and erect it into a " black military repub- 
 lic, under British protection." Pie remarks, says 
 Mr. Webster, "if this scheme should succeed, the 
 influence of Britain in this quarter, it is remarked, 
 will be unlimited. With six millions of blacks in 
 Cuba, and eight hundred thousand in her West 
 India islands, she will, it is said, strike a death 
 blow at slavery in the United States. Intrenched 
 
6 
 
 at Havana and San Antonio, posts as impregnable 
 as Gibraltar, she will be able to<elose the two en- 
 trances to the Gulf of Mexico, and even prevent 
 the free passage of the commerce of the United 
 States over the Bahama Banks, and through the 
 Florida channel." And although Mr. Webster 
 says the Government neither indorses nor rejects 
 these views, they are so stated by him as to show 
 that they made a deep impression on his own 
 mind. <• 
 
 It is apparent from all this correspondence, that 
 it is the settled policy of the Government that Cuba 
 is not to pass from Spain without coming under 
 our own jurisdiction, and that the Island is not in 
 a position to permit it to be an independent gov- 
 ernment without making it dtingerousto our com- 
 merce, institutions, and national safety. Since 
 this correspondence, our immense Pacific com- 
 merce has arisen, which passes within siffht of 
 Cuba. 5 
 
 A very accomplished officer of the Navy, 
 Lieutenant Dalghren, in his report on the subject 
 of fortifications, has expressed an opinion, which 
 is obviously true, that, with all the fortifications 
 we can place on our coast, we cannot protect our 
 commerce in the Gulf of Mexico, with Cuba in 
 the possession of a hostile Government. Indeed, 
 Cuba is far more necessary to us, than Gibraltar 
 or Malta is to England. 
 
 Mr. Dalghren says: 
 
 "The true and only key, however, to the defense of these 
 shores and to the immense interest there collected, is the 
 Havana. The island to which it belongs enters its western 
 extreme into the Gulf, leaving but two passages for vessels, 
 so narrow as to be commanded with the greatest facility; 
 these are the great thoroughfares of trade, and the mail 
 steamers from New Orleans to California and New York. 
 Hence if the use of the Havana be even at the disposal of 
 an enemy while in the hands of a neutral Power, each and 
 all of these intenests could be with difficulty defended, even 
 by a superior naval force, and never guarantied against 
 severe losses. While from it, as a United States port, a 
 squadron of moderate size would cover the southeast and 
 Gulf coasts, protect the foreign and inshore traders, and se- 
 cure the lines from New Orleans or New York to the Pa- 
 cific States by way of the Isthmus— its, occupation would 
 necessarily be the object of every expedition, military or 
 naval, preliminary to any attempt on the southern trade or 
 territory." 
 
 The rule of international law for which I am 
 contending, is thus stated by Mr. Wheaton: 
 
 " Of the absolute international rights of States, one of 
 the most essential and important, and that which lies at the 
 foundation of all the rest, is the right of self preservation. 
 It is not only a right with respect to other States, but a duty 
 with respect to its own members, and the most solemn and 
 important which the State owes to them. This right neces- 
 sarily involves all other incidental rights which are essen- 
 tial as means to give effect to the principal end." 
 
 The European Powers are estopped from deny- 
 ing the application of this doctrine in its fullest 
 extent, by having repeatedly acted upon it. By 
 the treaty of Utrecht the French Government 
 was compelled to demolish the fortifications at 
 Dunkirk, because dangerous to others. By the 
 treaty of Paris of 1815, France was compelled to 
 demolish the fortifications of Huningen, and agree 
 never to renew them, because dangerous to Basle. 
 
 The doctrine of self-defense and self-preservation 
 was the alleged justification of the combination of 
 the Protestant Powers against Louis XSV., and 
 for all the coalitions formed by the allied Powers 
 against France, and more recently for the Con- 
 gress of Troppau and Laj'bach, in relation to 
 the Neapolitan revolution in 1820; for the Con- 
 gress of Verona in relation to the affairs of Spain, 
 and one of the grounds for British interference 
 in the affairs of Portugal in 1826; for the interfer- 
 ence of the Christian Powers in favor of Greece, 
 principally on the ground that the contest en- 
 couraged piracies, and interfered with commerce; 
 for the interference of Austria, Great Britain, 
 and Russia, in the affairs of the Ottoman Em- 
 pire in 1840. I do not mention these instances 
 with approbation, but to show the existence of the 
 right in a proper case, and that neither England, 
 France, nor Spain, can complain of its exercise. 
 England has seized possession after possession in 
 India, on the ground that each instance was neces- 
 sary to the preservation of her other possessions 
 in that country. 
 
 The right of a government to take all necessary 
 measures for its safety and self-defense consistent 
 with reason and justice to other Powers, is stated 
 more strongly by European writers than by our 
 own. Vattel asserts that "since, then, ever)' nation 
 is obliged to preserve itself, it has a right to every- 
 thing necessary to its preservation." * * * "A 
 nation or State has a right to everything that can 
 help to ward off imminent danger, and keep at a 
 distance whatever is capable of causing its ruin; 
 and that from the very same reasons that establish 
 its rights to the things necessary to its preserva- 
 tion." 
 
 Cuba is even now in a transition state. It cannot 
 continue long in its present condition. Revolts 
 will continually occur there, for the seeds of lib- 
 erty have been sown in that devoted Island. The 
 people will be restive under the onerous and op- 
 pressive exactions of Spain. With the present 
 commercial policy of that country, the revenues 
 collected from the Island will not pay the army 
 and navy necessary to keep the people in subjec- 
 tion. It is not, therefore, in my opinion, possible 
 for the Island to long remain a dependency of 
 Spain, and we can never with safety permit it to 
 pass out of her dominion without becoming a 
 portion of the United States. Cuba requires out- 
 utmost vigilance. The effort of England and 
 France to induce us into a treaty in relation to the 
 Island; the fact that those Powers combined to., 
 place fleets there under pretense of guarding its 
 coast; the fact that England has assumed to erect 
 a colony on the islands off the coast of Central 
 America, and lias now a considerable fleet in the 
 Gulf and off the coast of Cuba, under the pretense 
 of arresting the slave trade, all demand our vigi- 
 lance, and preparation for any emergency. There 
 is no doubt that, since the discovery of gold in 
 Australia, England has, with increased interest, 
 turned her attention to the Gulf of Mexico and 
 the Isthmus, as a line of communication with her 
 Asiatic possessions. We have been made to feei 
 her power and weight in Mexico, in connection 
 with the Tehuantepec route. 
 
 I dissent altogether from the position of the 
 President that it would be inexpedient for us to 
 acquire Cuba, if Spain consents to our acquiring 
 it by treaty or purchase. I hold that it is our 
 
I 
 
 highest national interest to become the possessor 
 of that Island as soon as we can by cession from 
 Spain. I cannot see the danger of sectional agi- 
 tation from its acquisition which is anticipated by 
 the President. There are ten men in the United 
 States now in favor of acquiring Cuba, where there 
 was one in favor of the annexation of Texas at the 
 time of the Tyler treaty. The commercial class of 
 the North generally are in favor of the measure as 
 soon as it can be honorably accomplished. It is 
 obvious that the northern States would be largely 
 benefited by it in a commercial point of view. It 
 is, in my opinion, a great mistake to suppose the 
 acquisition of Cuba would give rise to any fresh 
 agitation of the slavery question. If the Island 
 were in our possession, we should effectually sup- 
 press the slave trade, and to that extent, its trans- 
 fer to us would not only diminish slavery, but 
 arrest a traffic which results in an annual loss of 
 the lives of colored persons, nearly, if not quite 
 equal in number, to those reduced into slavery by 
 the trade. If Cuba were converted into a black 
 republic, it would soon become a mere harbor for 
 pirates, and the northern States would be the 
 first to cry for the acquisition of the country. 
 There is no danger that the North would risk the 
 consequences of rejecting Cuba. They have too 
 much interest in the preservation of the Union; far 
 more than the South. Their whole commercial 
 and manufacturing prosperity rests upon it. We 
 have passed that crisis for the present century. 
 
 Neither is there any danger from the character 
 of the population in Cuba. With the aid of the 
 thousands which would flock there from every 
 portion of the United States, they would have no 
 difficulty in working our system. The admission 
 of a free press, and the Protestant religion, would 
 work wonders in the Island in a short time. 
 
 I will proceed now to the course of the Admin- 
 istration, which was the subject of the remarks 
 Gf the honorable gentleman from New York, [Mr. 
 Brooks,] the other day, touching the treatment 
 which the prisoners taken in the Lopez expedition 
 received by the Spanish authorities of the Island. 
 
 I repeat, that I am not a defender of the Lopez 
 expedition, nor of any similar adventurers. But 
 there are many things to be said in extenuation of 
 that unfortunate occurrence. Cuba is, no doubt, 
 oppressed by one of the worst governments oh 
 earth. It is more arbitrary than that of the Czar, 
 and less humane because it is governed by officers 
 from Old Spain, whose object is to amass wealth 
 by oppressing the people by burdensome and oner- 
 ous exactions. General Lopez, an ardent lover of 
 liberty, was inspired with the ambition of freeing 
 his country from this intolerable despotism. He 
 pursued his high purpose with an energy, perse- 
 verance and courage, worthy of a better fate. He 
 missed the fame and renown of one of the liber- 
 ators of the asre, only because his efforts were un- 
 fortunate. While the leader of a revolution is 
 canonized by success^ the unfortunate conspira- 
 tor is covered with obloquy, and his name shroud- 
 ed in disgrace. Narciso Lopez perished ignomin- 
 iously by the garote, but his blood watered a soil 
 that will yet bear the fruits of liberty, and a mon- 
 ument to his memory will hereafter be erected over 
 the spot where he fell, by the hands of freemen. 
 Every revolution generally has a victim before 
 success. 
 
 It has been the policy of the authorities of Cuba 
 
 to represent that the Creoles of the Island did not 
 sympathize with the movement of Lopez. But 
 the reverse is well known; an extensive revolt was 
 at one time planned and organized. That is 
 proved by the multitude of arrests and banish- 
 ments, by the fact that all the prisons in the Island 
 were crowded to overflowing. After the failure 
 of the first expedition this organization was, to a 
 great extent, broken up. A reorganization took 
 place just before the second expedition of Lopez, 
 and at one place, at least, a declaration of inde- 
 pendence was promulged. There is no doubt that 
 the extent of this movement was greatly exagger- 
 ated, and that the revolt was by no means as ex- 
 tensive as a sanguine man like Lopez was easily 
 led to suppose. He was also made the victim of 
 a stratagem by the government of Cuba. It is 
 now known that he received letters written at the 
 instance of the government assuring him he had 
 only to show himself with a few followers, and 
 that the population would flock en masse to his 
 standard. It was this impression, no doubt, that 
 caused him to set out with so small an expedition. 
 Had he landed with two thousand men and a few 
 pieces of artillery, there is no doubt that the enter- 
 prise would have been entirely successful. But 
 when the Creoles saw that he had made a descent 
 with only four hundred men landing in the vicinity 
 of Havana, they perceived at once that all was lost, 
 and abandoned a movement which they believed 
 could not maintain itself against the Spanish forces 
 on the Island. 
 
 There is no question that Lopez and his men 
 believed they were going in aid of an extensive 
 revolt, and a well organized revolution. The ex- 
 pedition was not undertaken in the spirit of aggres- 
 sion and plunder, but with a sincere desire to aid 
 the cause of liberty. The expedition succeeded in 
 getting out of our ports and failed, and the Ameri- 
 cans embarked in it having been taken prisoners, I 
 maintain were entitled to the trial secured to Amer- 
 ican citizens by the treaty of 1795, with Spain. Now 
 I ask if they received that trial in any aspect of the 
 case? It will be seen by the official correspond- 
 ence, and also by the report of Commodore Parker, 
 based upon conversations held with the Captain 
 General of Cuba, as well as from the other cor- 
 respondence which took place, and which may 
 be found among our official documents, that the 
 authorities of Cuba place the right they had to 
 punish these men by trying them by the tribunals 
 which did try them, and by denying them counsel 
 as they did, entirely upon the ground that they 
 were pirates. Now, I undertake to say, that no 
 respectably adjudicated case can be found which 
 will sustain the position that these men were 
 pirates. What is a pirate? A pirate, according 
 to the definitions of the writers on international 
 law, is a robber upon the high seas. Such also is 
 the definition of the Spanish law writers. 
 
 Piracy, says Chancellor Kent, is robbery, or a 
 forcible depredation, on the high seas, without law- 
 ful authority, and done animo furandi, and in the 
 spirit and intention of universal hostility. The 
 Supreme Court of the United States has also de- 
 fined the crime to be robbery upon the high seas; 
 which is the universal definition of the writers on 
 international law in modern Europe, including 
 those of Spain. The offense of the Lopez men 
 was not upon the high seas, nor done animo fu- 
 randi, and no other piracy is known to the law of 
 
« 
 
 8 
 
 nations. Neither was it piracy within the defini- 
 tion of the offense given by the acts of Congress. 
 
 Now, sir, you know the principles of interna- 
 tional law are founded upon usage, upon treaty, 
 and upon custom, and require the usage of more 
 than one nation to ingraft upon them a single princi- 
 ple. That is a well-received doctrine, which has 
 been recognized by the Supreme Court of the 
 United States in passing upon one of the acts of 
 Congress which assumed to add to the interna- 
 tional code. The same principle has been'recog^ 
 nized by the leading Powers of Europe with ref- 
 erence to the slave trade, which cannot be held 
 piracy apart from treaties. Spain could not make 
 these men pirates by its own declaration; if they 
 were not pirates under the laws of nations, they 
 could not be punished as pirates. I am aware 
 that there are some elementary writers who have 
 said that in unlawful expeditions like this, where 
 the men are taken prisoners, they are to be treated 
 as pirates and robbers, not entitled to the laws of 
 war. But this is to be taken with qualifications; 
 for the proposition as applied to these prisoners, 
 is not supported by a single English or American 
 adjudication. When they commit robbery, they 
 should be punished as robbers; when they commit 
 piracy, they should be treated as pirates; and 
 when they commit murder, they should be pun- 
 ished as murderers. 
 
 Such was the language of Mr. Clayton, under 
 the administration of General Taylor. He did 
 not admit that the Contoy prisoners were pirates. 
 On the contrary, he asserted, in relation to all of 
 them, and especially the Contoy prisoners, that 
 tliey had not committed the offense of piracy, and 
 could not be punished as pirates, remarking that 
 murder and robbery were grave offenses, but not 
 piracy. When the State of New York arrested I 
 McLeod for his expedition into that State, and ! 
 the destruction of the Caroline, he was not tried | 
 for piracy, but, as homicide had been committed, \ 
 he was tried for murder, and given a regular trial I 
 in all the forms of law. It is true, that Judge | 
 Cowan, in passing upon the case, cited those au- 
 thorities which allege that persons engaged in these 
 expeditions might be treated as robbers and pirates. 
 These citations were not long since published in 
 one of the papers in this city; but the learned New 
 York Judge did not rely on them as authority in 
 point. And when examined, it will be found that 
 all they intend to assert is, that if the offender 
 commits robbery, he may be punished as a rob- 
 ber; and if piracy, as a pirate. He is not entitled 
 to the benefit of the laws of war, a position which 
 will readily be conceded. I do not say that the 
 Spanish officers were bound to admit these men 
 to quarter, if they had been taken in conflict with 
 arms in their hands; but having given quarter, 
 having received them as prisoners, they were en- 
 titled to the rights of American citizens. The fifty 
 men under Crittenden, who were taken and shot, 
 had not arms in their hands when they were cap- 
 tured. They were endeavoring to make their 
 escape from the Island in two boats, as I have 
 been informed by good authority. The men were 
 in one boat, and the arms in another, which prob- 
 ably accounts for their surrender. As Ameri- 
 can citizens, then, guilty, not of piracy, but of an 
 offense against the neutrality laws of this country, 
 and at most a conspiracy against Spain, they were 
 entitled to a trial. I concede that, as foreigners, 
 
 they might commit treason against Spain , although 
 that has been denied; but I think the affirmative of 
 the proposition the better opinion. Still, they were 
 American citizens, entitled to the benefit of the 
 treaty of 1795 with Spain, which declares: 
 
 " And in all cases of seizure, detention, or arrest for debts 
 contracted, or offenses committed by any citizen or subje«5 
 of the one party within the jurisdiction of the other, the 
 same shall be made and prosecuted (' pororden y autoridad 
 de lajusticia,') by order and authority of law only, and ac- 
 cording to the regular course of proceedings usual in such 
 cases." 
 
 It will be seen that the language of the treaty 
 is very broad, and applies to any citizen or 
 subject who has incurred seizure or detention for 
 " offenses committed." It is clear these Ameri- 
 can citizens were seized and detained within the 
 meaning of the treaty. How, then, were they to 
 be prosecuted? " By authority of law only, and 
 according to the regular course of proceedings 
 usual in such cases." Such language in a statute 
 in England or this country, would beheld to guar- 
 anty to the accused a trial according " to the law 
 of the land," which, since the days of Lord Coke, 
 has been held to mean a trial by the course of 
 the common law, by presentment or indictment, 
 and a jury. In Spain they have no juries, but 
 the language of the treaty evidently contemplates 
 a trial in the regular course of proceedings accord- 
 ing to the civil laws of Spain. Their lawyers 
 and books draw a wide distinction between the 
 proceedings of what they term the ordinary 
 and extraordinary tribunals. Civil courts are 
 held by them to be ordinary tribunals, military 
 and ecclesiastical courts are extraordinary tribu- 
 nals, and not the regular course of proceeding, 
 under their law, any more than a court-martial is 
 our regular course of proceeding. This is still 
 more apparent by reference to the Spanish side of 
 the treaty, which our Supreme Court held in the 
 case of Clarke, to be the true exponent of the 
 provision of another treaty with Spain, when it 
 alluded to Spanish law and proceedings, and even 
 corrected a construction which the court had 
 previously given to the English article in the 
 treaty. 
 
 The Spanish side declares that American citi- 
 zens shall be arrested and prosecuted " por orden 
 y autoridad de la justicia." Justicia is ordinarily 
 rendered justice; but in this instance, and gener- 
 ally when used with reference to judicial proceed- 
 ings, is more properly translated judicature. The 
 word in Spanish is of a much more technical 
 meaning than law, which is used as the English 
 equivalent in the treaty. The Spanish authors, 
 when they use the word with reference to the ad- 
 ministration of justice, apply it to the course of 
 proceedings in the civil tribunals. And such is 
 evidently its sense in this treaty. That such was 
 the intention of the treaty, is apparent from the 
 dispatch of Mr. Pinkney, a profound lawyer, 
 who negotiated it, and who said it was a proper 
 provision in treaties with all such countries as 
 Spain. It is evident that he supposed he had se- 
 cured to his countrymen in Spain, a regular trial 
 in the civil courts in all cases. The object of 
 this provision of the treaty was to rescue the citi- 
 zens of the United States from these extraordi- 
 nary and arbitrary tribunals; from these military 
 and ecclesiastical courts, which had been the dis- 
 
9 
 
 grace of the age, and the scandal of Christendom. 
 At all events, it was the duty of the Administra- 
 tion to contend for a reasonable construction of 
 the treaty, which secured a fair trial to American 
 citizens. 
 
 The construction put upon the treaty by the 
 gentleman from New York cannot be sustained. 
 His construction is, that these citizens of the Uni- 
 ted States were tried and punished in the same 
 manner as Spanish subjects, and therefore they 
 and their friends had no right to complain. Why, 
 sir, it was to avoid that very thing that the treaty 
 was made. It was to avoid the necessity of the 
 citizens of the United States being subjected to these 
 infamous military and ecclesiastical tribunals that 
 this clause in the treaty was inserted; and the 
 construction that is now attempted to be put upon 
 it, would destroy the whole force and virtue of the 
 guarantees of the treaty. 
 
 Again, the trial by a summary court-martial, 
 was a violation of the treaty; because Spanish sub- 
 jects could not, under the laws of Spain, be tried 
 for treason in those cases where the arrest was 
 made by military authority; they may be tried by 
 the ordinary council of war, which is a permanent 
 tribunal, but not by a summary court-martial. 
 The trial was not therefore the regular proceeding 
 in such cases even for Spanish subjects, and in 
 this respect was a violation of the treaty, — a point 
 I shall present more fully in connection with the 
 case of Mr. Thrasher. 
 
 Sir, the Spanish authorities attempted to evade 
 the force of this treaty, as I have said, by declaring 
 that these men were pirates, who were not pirates 
 according to international law. It was only by 
 holding that they were citizens of no country, but 
 the common enemies of mankind, that Spain could 
 shield herself from the charge of having violated 
 the provisions of the treaty of 1795. If you will 
 look at the report of Commander Parker, who 
 was sent to Cuba by the President to investigate 
 this affair, you will find that the Captain General 
 places his justification upon that, ground almost 
 exclusively in his first interview with Commander 
 Parker; and you will see furthermore, by looking 
 at the report, that the Captain General did not pre- 
 tend that they had a regular or legal trial — not even 
 that they had a regular trial before a military com- 
 mission. He admitted that the trial was summa- 
 ry. Commander Parker thus reports his interview 
 with the Captain General: 
 
 "He stated that he considered them as pirates, and that 
 they had been so denounced in the proclamation of the 
 President of the United States. That they were tried in a 
 -summary manner, and full proof made of their guilt, and that 
 of their participation in the invasion of the Island by Lopez. 
 He did not consider himself at liberty to furnish ine with 
 the proceedings on the trial, but would send them to his 
 own Government, and to the Spanish Minister at Washing- 
 ton, who would do whatever was right in the matter, on the 
 call of the Government of the United States." 
 
 Where is this, no doubt, ex post facto record ? 
 Why, sir, I marvel that any gentleman in this 
 House should call it a trial. Those men were ar- 
 rested one day and shot the next. Fifty men were 
 brought to Havana one day and executed the next. 
 This shows the impossibility of there being any- 
 thing like a trial, with a fair opportunity to con- 
 test the proceedings. But we know in what the 
 trial consisted, from the statements of resDectable 
 
 Americans in Cuba at the time. Several officers 
 went into the room where these men were con- 
 fined and took their voluntary statements. They 
 admitted that they had been in the Lopez expedi- 
 tion ; and upon that admission the order was issued 
 by the officers that they should be shot. Is that, 
 a trial? Is that the trial contemplated by the 
 treaty ? If it is, it is in vain to stipulate with a for- 
 eign Power that our citizens shall be tried accord- 
 ing to the laws of the land, with an opportunity 
 to establish their innocence. We know that these 
 men were not allowed to contest the jurisdiction 
 of the pretended court; we know that they were 
 not allowed counsel; we know that they were 
 not permitted to have evidence, and we know that 
 the whole thing was done in hot haste and in 
 the spirit of revenge. Our Consul, Mr. Owen, 
 came into town after they were condemned, inter- 
 posed in their behalf, asked for a postponement, 
 and for the release of some, if not all. The Cap- 
 tain General refused to permit him to intercede for 
 the prisoners, and told him he must know that he 
 was doing so against the wishes of his Government. 
 The officers of Cuba hurried their victims to 
 slaughter; and if the letters from Havana can be 
 credited, their bodies after execution were brutally 
 desecrated by the mob. 
 
 I think it, therefore, impossible to maintain that 
 these men were tried by the regular tribunal se- 
 cured to them by the treaty. But even admitting 
 that it was regular to try them by a summary 
 court-martial or any military tribunal, still I insist 
 the treaty was violated; still I say that they 
 did not have the benefits of the provisions guar- 
 antied to them by the treaty in relation to trials. 
 It contemplates a trial which is not a mockery. 
 It contemplates a trial which allows the party his 
 witnesses. It contemplates a trial which allows 
 him counsel. It contemplates a trial which gives 
 him a hearing and not a judicial butchery. 
 
 Now, sir, it was asserted by the Spanish au- 
 thorities — and it has also been asserted by this 
 Administration — that if these men received such 
 a sort of trial as Spanish subjects receive, then the 
 stipulations of the treaty were complied with and 
 secured to the criminals. 
 
 Sir, the treaty is not admissible of such a con- 
 struction. The very reverse is the object of the 
 treaty, and the bare reading of its words is suffi- 
 cient evidence of the correctness of that position. 
 The treaty declares: 
 
 " The citizens and subjects of both parties shall be al- 
 lowed to employ such advocates, solicitors, notaries, agents, 
 and factors as they may judge proper, in all their affairs, and 
 in al! their trials at law, in which they may be concerned, 
 before the- tribunals of the other party ; and such agent shall 
 have free access to be present at the proceedings in such 
 causes, and the taking of all examinations and evidence 
 which may be exhibited in the said trials." 
 
 If we admit that the court which tried Critten- 
 den's men, being a military tribunal, had juris- 
 diction of the case, still, I say, the treaty was 
 violated in the trial. 'Because they were never 
 regularly arraigned; because they were not al- 
 lowed to plead to the jurisdiction; because they 
 were not permitted counsel; and because they were 
 not allowed the regular examination of witnesses 
 in their behalf, according to all the accounts which 
 have reached us. The treaty is a distinct substan- 
 tive provision, as to the employment of counsel. 
 
10 
 
 It secures the right to American citizens to have 
 counsel of their own choice "in all their affairs, 
 and in all their trials at lav/." It relates to all 
 trials before all the tribunals, whether civil or crim- 
 inal, whether military or ordinary. It is there- 
 fore perfectly obvious that it never was the inten- 
 tion of Mr. Pinkney and the Spanish Minister, 
 when they negotiated that treaty, to put it in the 
 powder of Spain, by transferring criminals to mili- 
 tary tribunals, to deprive them of the right_ of 
 counsel, the right of witnesses, the right of being 
 present when the evidence was taken by which 
 they were to be convicted. It is, therefore, in my 
 estimation, preposterous to assume that American 
 citizens, tried even before the military tribunals of 
 Spain, can be deprived of counsel and witnesses 
 merely because Spanish subjects are deprived of 
 them. 
 
 Why, sir, I need not say to any lawyer in 
 this House, that, whatever may be the general 
 law of Spain, a particular provision for the benefit 
 of American citizens made by treaty, is the law 
 of the case, and that it is the duty of the Spanish 
 tribunals to administer it as the law of the case. 
 
 I admit, that without such a provision, our citi- 
 zens must be judged as the citizens of Spain are 
 judged who have committed offenses within their 
 jurisdiction. Suppose the Spanish Government 
 passes an edict that when any one is believed to 
 have committed felony, any officer of the army 
 may order him to be shot without trial and without 
 a hearing, does that abrogate our treaty with Spain? 
 If the Cortes should pass a law declaring that no 
 Spanish subject should have an advocate, agent, 
 or counsel, on any trial before a Spanish tribunal, 
 would it destroy, or in any way affect our treaty 
 provision for the security of American citizens? 
 
 Sir, the Cuban authorities did not take any such 
 position as to Crittenden and the other followers 
 of Lopez, whom they executed. That was left to 
 the ingenuity of the present Administration and its 
 defenders. They knew that these men had not 
 enjoyed even the benefit of the laws of Spain for 
 the trial of its subjects who were guilty of treason. 
 They were not even tried before the council of 
 war, nor did they have the benefit of the rules of 
 proceeding which prevail in that military tribunal. 
 The Cuban authorities assumed that these men 
 were pirates, and that whatever violence was done 
 them, they were not citizens of any country, and 
 therefore this Government could not complain. 
 Now, sir, although the President did not formally 
 denounce these men as guilty of piracy, although 
 the administration of General Taylor stands com- 
 mitted upon the record of denying that the offense 
 was piracy, yet in his proclamation Mr. Fillmore 
 declared that " such expeditions can only be re- 
 garded as adventures for plunder and robbery." 
 Certainly such was not the object of the leaders 
 of that expedition, and to say so was to do gross 
 injustice to their motives and characters. He 
 then proceeds to inform them that they " will 
 forfeit their claim to the protection of this Govern- 
 ment, or any interference on their behalf, no mat- 
 ter to what extremities they may be reduced in con- 
 sequence of their illegal conduct." In the first 
 place this proclamation, by assuming the guilt of 
 all parties in the expedition, anticipated the work 
 of Concha's court-martial. .It incited the Spanish 
 authorities to pursue the very course they adopted. 
 
 If, sir, th^re was a provision in the treaty with 
 
 Spain, which guarantied to American citizens the 
 right of trial, the President could not give up that 
 right unless they denationalized themselves by an 
 act of piracy. He was bound to assert it for 
 their benefit. The President cannot suspend the 
 Constitution, nor treaty or laws made in pursuance 
 thereof. On the contrary, he is compelled by his 
 duty and oath of office to see them faithfully exe- 
 cuted. It has been argued that the Lopez men 
 had committed a heinous crime, and deserved to 
 die; but men are not hung, in this country at 
 least, by equity. The greatest criminals are as 
 much entitled to the forms of law as the most in- 
 nocent who are. accused. If a guilty man may 
 be condemned unheard, and without a trial, there 
 is no safety for the innocent. The example set 
 by Spain in the case of the Lopez men, if ac- 
 quiesced in, places it in her power to execute any 
 American citizen without giving him a fair trial. 
 It has practically abrogated the treaty. 
 
 Again, sir, I disagree with the gentleman from 
 New York [Mr. Brooks] as to another branch 
 of this subject. In the case of Mr. Thrasher, he^, 
 has taken the ground that he had become natu- 
 ralized, or at all events taken the oath of allegiance 
 to the Crown of Spain, and that, therefore, he had 
 forfeited his right of American citizenship, and 
 was liable to be tried as a Spanish subject, and 
 was not entitled to the benefits of the provisions 
 of the treaty. Such, also,was the position of the 
 Administration in relation to Mr. Thrasher, and 
 they appear to have abandoned him to his fate 
 without a struggle. 
 
 Sir, I am astonished that any one should take 
 the position that Mr. Thrasher was naturalized, 
 in view of the facts and the laws of Spain. What 
 is the record, furnished by Concha himself, the 
 Captain General of Cuba? It is, that Mr. Thrasher 
 had not taken the oath of naturalization, and he 
 summoned Mr. Thrasher before him when he at- 
 tempted to publish a paper in Cuba in 1850, and 
 prohibited him from publishing it, on the ground 
 that he refused, when thus summoned, to take the 
 oath of naturalization. He required him to dis- 
 continue his paper, or take the oath of naturaliza- 
 tion. Thrasher refused to take the oath of alle- 
 giance to the Spanish Government, and was not, 
 therefore, entitled to the benefits of the act of nat- 
 uralization, and compelled to abandon his paper. 
 
 Mr. BROOKS, (interrupting.) Will the gentle- 
 man from Texas let me understand his point ? Did 
 I understand him to say that Mr. Thrasher did 
 not take the domiciliary oath which was required 
 of him by the Captain General of Cuba? 
 
 Mr. HOWARD. No, not the domiciliary oath. 
 I admit he took that oath. 
 
 Mr. BROOKS. I believe the gentleman under- 
 stands Spanish; the oath which he took was an 
 oath of fidelity and vassalage to Spain — juramento 
 de fidelidad y vasallaje. Is not that so? 
 
 Mr. HOWARD. No, sir, that is not so, if the 
 gentleman means to assert that it was an oath of 
 allegiance to Spain. 
 
 Mr. BROOKS. He was obliged to take such 
 an oath under the laws of Cuba, of 1817. 
 
 Mr. HOWARD. I will set the gentleman right 
 on that subject. In relation to that matter, gross 
 injustice has been done Mr. Thrasher. 
 
 What is naturalization? When is a man nat- 
 uralized ? When he renounces the sovereign of 
 his origin, and acquires the rights of citizenship 
 
11 
 
 under the Government to which he transfers his 
 allegiance. Now, what were the laws of" Spain 
 in reference to that subject? I have here the reg- 
 ulation of 1791, contained in the official documents 
 accompanying the President's message. But this 
 whole subject of settlement and colonization in 
 Cuba was regulated in 1817 by a special law. It 
 did not require Mr. Thrasher to swear himself a 
 Catholic, as the gentleman supposes. It only re- 
 quired satisfactory proof of that fact. The regu- 
 lation is contained at length in a work of great 
 authority recently published in Spain, entitled 
 " Legislacion Ultra Marina."* 
 
 The law of 1817, as to settlers in Cuba, is not 
 unlike our own law of naturalization. It gives 
 him five years to become naturalized, and gives 
 him, in the mean time, the absolute right to return 
 to his native land; and in case war broke out, he 
 had the right to remove with all his property to his 
 ancient home. At the end of five years he was to 
 come forward to announce that it was his intention 
 to remain perpetually in the Island, to prove his 
 religion and his good conduct, and then to take 
 the oath of naturalization, by which he was re- 
 quired "to promise fidelity to the Catholic religion, 
 ' the King and the laws, renouncing everything 
 'foreign; all privileges and protection that would 
 ' arise from being foreigners, and promising not to 
 ' retain any dependence, relation, or civil subjec- 
 ' tion to the country of thfir birth." This was 
 complete naturalization, but could only be acquired 
 after proof of five years' residence. He was then 
 furnished with his naturalization papers, and the 
 law declared that "naturalized strangers shall 
 enjoy all the rights and privileges of Spaniards." 
 But this oath Mr. Thrasher refused to take when 
 
 * Naturalization law of Spain in Cuba. 
 
 1st. All the strangers belonging to friendly Powers or na- 
 tions who wish to establrih themselves, or who already are 
 in the Island of Cuba, must make it clear by the proper 
 means to her Government that they profess the Roman 
 Catholic religion, and without this indispensable circum- 
 stance, they shall not be admitted to domicile themselves 
 there ; hut as to my subjects of these dominions and of the 
 Indies, they are not obliged to prove this, because that, in 
 respect to them, there cannot be any doubt as to this point. 
 . 2d. As to the strangers who are admitted according to the 
 preceding article, 'he Governor shall receive from them an 
 oath [juramento de fidelidady vasallaje] of fidelity 'and sub- 
 mission, in which they shall promise to comply with the 
 laws and general orders of the Indies to which the Span- 
 iards are subject. 
 
 3d. When the first five years are past from the establish ment 
 of these foreign colonists in the Island, and they shall then 
 enter into an obligation to remain perpetually in it, all the 
 privileges and rights of naturalization shall be conceded to 
 them, likewise to their sons whom they shall have brought 
 with them, orwlio shall have been born intbesame Island, 
 in order that they may consequently be admitted to the hon- 
 orable employs of the republic and the militia, according 
 to the talents of each one. 
 
 5th. During the -first five years, the Spanish or foreign 
 colonists shall have the liberty to return to their former coun- 
 tries or ancient residences — and in this case they shall be en- 
 tiiled to Take from the Island all the property and goods which 
 they shall have brought into it, without paying any dues 
 whatever, for taking them away — but of those which they 
 have gained in the above-mentioned time, they have to con- 
 tribute ten for a hundred. 
 
 9th. The liberty of the foreign colonists to return to their 
 countries or ancient residences during the first five years is 
 absolute, without limitation or condition, and they shall 
 be able to take away their property, or dispose of it as they 
 shall see fit. 
 
 In the case of war with the Power which is the natural 
 country or sovereign of the domiciliated colonists, these do 
 not lose the rights and advantages of their domicile in the 
 Island of Cuba, although the five years from their establiaJi- 
 
 summoned before the Captain General, and it is 
 therefore res adjudicata, in his office, that that gen- 
 tleman was never naturalized, but refused to sur- 
 render his allegiance to the United States, and was 
 in consequence refused the rights of a naturalized 
 subject of Spain. 
 
 And now as to the domiciliary oath. It does 
 not profess to be an oath of allegiance; and if it 
 did, it would be in violation of the Spanish laws. 
 It would confer no right on Mr. Thrasher, and 
 would subject him to no loss of privilege as an 
 American citizen. The domiciliary oath required 
 him to swear fidelity to the laws of Spain and the 
 Indies. It was, in truth, no more than the decla- 
 ration required by our law of an intention to be- 
 come a citizen, accompanied by an oath. Indeed 
 it was not so much, as the Spanish law did not 
 require such an intention to be declared. I am 
 aware the form of oath furnished in the executive 
 document, which was palmed off upon Mr. Web- 
 ster by the Spanish authorities, purports to be an 
 oath of allegiance; but if Mr. Thrasher ever took 
 such an oath it was extra-judicial, and not author- 
 ized by the law, and gave no right. It was obvi- 
 ously a form of oath which had been made under 
 the law of 1791. 
 
 The second section of the law of 1817 contains 
 the whole regulation in force at the time of Mr. 
 Thrasher's domiciliation. By that law he took, 
 in the language of the law, " an oath (juramento 
 defulelidad y vasallam) of fidelity and submission, 
 ' in which they shall promise to comply with the 
 ' laws and general orders of the Indies to which 
 ' the Spaniards are subject." It is noticeable that 
 while one of the translations from the Department 
 correctly renders vasallaje submission, it translates 
 
 ment shall not have passed. Their property shall not be 
 subject to embargo, sequestration, or any other of the pro- 
 visions, ordinary or extraordinary, of the state of war. 
 Those who, notwithstanding the war, wish to remain per- 
 manently in the Island, to accomplish their five years and 
 naturalize themselves, shall be allowed to do so with perfect 
 liberty, being of credit, good lives and customs. To those 
 who prefer to absent themselves, sufficient time shall be 
 conceded, so that with ease and convenience they can regu- 
 late their affairs and dispose of their property, being allowed 
 to carry away all the property they brought with them, or 
 an equivalent thereto, without payment of any dues what- 
 ever — and paying 1'or what they have sained since, ten for a 
 hundred, according to the 16th preceding article. 
 
 24th. The five years being past, and the foreign colonists 
 wishing to naturalize themselves, shall repair to ihe Govern- 
 ment with their letters of domicile, and the'y shall manifest 
 that they oblige themselves to remain perpetually in the 
 Island. The Government shall take the proper means of 
 information, and their good qualities being certified, their 
 continued residence for five years, landed property or in- 
 dustry, they shall be admitted to take the oath of naturali- 
 zation, in which they shall promise fidelity to the Catholic 
 religion, the King and the laws, renouncing everything 
 foreign, all privilege and proteclion that would arise from 
 being foreigners, and promising not to retain ferry depend- 
 ence, relation, or civil subjection to the country of their 
 birth — with the explanation, that this renunciation does 
 not comprehend the relations or domestic correspondences 
 of family or relationship, neither the economies of goods or 
 interests, which every citizen stranger can maintain ac- 
 cording to the royal schedule, and instruction of the 2d of 
 September, 1791, and circulars since. 
 
 25th. With the declared requisites the Government shall 
 expedite the letters of naturalization, by form of which they 
 shall find the order in the royal exchequer ay untamiento, 
 and respective territorial jurisdictions, without costs or 
 dues, as in the letters of domicile. 
 
 26th. The naturalized strangers shall enjoy all the rights 
 and privileges of Spaniards, as likewise their sons and le- 
 gitimate descendants, according to the 15th article of the 
 preceding. 
 
12 
 
 fidelidad, allegiance instead of fidelity; but nothing 
 is ifgained by this translation, as it is allegiance to 
 the" laws, and not to the Crown of Spain. It is 
 nothing more than the law of nations, under which, 
 if a man comes here, he is bound to obey and not 
 to violate our laws; but that does not make him a 
 citizen of the country. It gives him none of the 
 rights of an American citizen; for the principle is 
 too plain to be controverted, that no man can be 
 naturalized in a country until he complies with the 
 laws and institutions of that country, which con- I 
 fers upon him the rights of naturalization. Mr. 
 Thrasher did not do that. He refused to do it, 
 which Concha himself admits. It is true Concha 
 says he was something more than an American 
 citizen; that he was domiciled, and had taken an 
 oath to obey the laws and orders of the Indies to 
 which Spanish subjects were compelled to sub- 
 mit; but he was careful not to say it was the oath 
 of naturalization. 
 
 I have chosen to place this matter on the indis- 
 putable ground that Thrasher could not become 
 naturalized without renouncing his former alle- 
 giance, and taking upon himself the allegiance of 
 Spain, according to the Spanish laws. The judi- 
 cial doctrine of this country goes the length of 
 saying that no one can lose his allegiance until a 
 method is provided for effecting it, by an act of 
 Congress. Chancellor Kent, after a review of all 
 the decisions, thus states the law: 
 
 "From this historical review ofifche principal discussions 
 in the Federal courts on this interesting subject in American 
 jurisprudence, the better opinion would seem to be, that a 
 citizen cannot renounce his allegiance to the United States 
 without the permission of Government, to be declared by 
 law; and that, as there is no existing legislative regulation 
 on the case, the rule of the English common law remains 
 unaltered." 
 
 Concha rested the right of Spain to try Mr. 
 Thrasher in the manner he was tried on the ground 
 that the military tribunal by which he was tried 
 was a regular tribunal of the Island of Cuba, 
 created by law. What was it, sir? It was com- 
 posed of a brigadier of the army, and six other 
 officers. 1 shall not repeat what I have said in 
 relation to there being no right to try an American 
 citizen before a council of war; but I will content 
 myself with this position, which cannot be suc- 
 cessfully refuted: Although it were a regular tri- 
 bunal, and had the right to try him, he was enti- 
 tled to his counsel, his witnesses, his proofs, and 
 his defens'e. I have never heard his own pub- 
 lished account of the trial denied, as a truthful 
 statement of the facts. It was communicated to 
 Congress by the President. Mr. Thrasher says: 
 
 " On the 21st October, I was thrown into a dungeon of 
 the city prison, and all communication with any person 
 strictly prohibited. On the 23th, I was removed to my 
 present dungeon, and the fiscal of the military tribunal made 
 his appearance and began a judicial examination'. . On the 
 26th ultimo this was continued, and then I saw no one until 
 the 4th instant, when the question was proceeded with, and 
 on the 6th I was again questioned, and finally informed that 
 I was accused of treason. At the same time I was required 
 to select one from a list of officers that was presented to 
 me, who should conduct my defense. Not knowing any of 
 them, 1 chose at random, supposing he would consult with 
 me and with my legal advisers, as is usual in such cases, 
 in regard to my defense. On the 7th instant, I was, for the 
 
 first time, allowed to see my friends, and to consult with 
 them as to the best course to pursue. 
 
 " I conferred with our consul, and he passed several com- 
 munications in my behalf to the Government here, all of 
 which have been utterly disregarded and not replied to. On 
 the 11th, I was informed that I was to be brought up the 
 next day for sentence. I immediately wrote to my nominal 
 defender, requesting him to come at once to consult with 
 me, and to bring with him the proceedings, which are in 
 writing. He replied, verbally, that he would come in the 
 afternoon. He did not come, and I extended at once a pro- 
 test against the proceedings, alleging that I had not been 
 heard, and that neither myself nor my legal advisers had 
 been consulted for a proper defense. I sent this to the 
 president of the military commission that night, who refused 
 to receive it, saying, it could only be admitted by the Cap- 
 tain General. 
 
 "The American consul, Mr. Owen, as soon as informed 
 of this, proceeded to the palace and protested against sen- 
 tence being pronounced, as I had not been heard in defense. 
 In the morning, my nominal defender came to my prison to 
 inform me that he had been allowed by the court only twenty- 
 four hours to prepare my defense; that he had been occupied 
 until that moment examining the proceedings, which are 
 voluminous, and that within an hour he must return them 
 to the fiscal. 
 
 "On the 12th I was taken before a court-martial, com- 
 posed of a brigadier geneftil and six officers of Ihe army. 
 The testimony and proceedings were read be'ore I was 
 brought into court, which is contrary to law and to custom, 
 and when brought in I was asked what I had to say to the 
 charges against me? I replied, I had not been furnished 
 with a copy of the charges ; that I had been denied access 
 to the proceedings and testimony ; that my nominal defender 
 had neither consulted with me' nor with my counsel, and 
 that I now asked that my protest and petition for stay of 
 proceedings should be admitted. I was told by the presi- 
 dent of the court, that it should be considered. I was then 
 removed to my dungeon, and heard nothing more of the 
 proceedings until to-day, when I have been formally notified 
 that I have been sentenced to eight years labor in chains at 
 Ceuta, in Africa, with payment of costs." 
 
 Do you call such a proceeding a trial according 
 to the usual course of proceedings? Do you call 
 that complying with the provisions of the treaty? 
 I can tell my friend from New York, that an argu- 
 ment of that sort will not prevail with any lawyer, 
 because the treaty is positive that he shall have 
 counsel, which was violated in this case. They 
 would not let him select his counsel from Spanish 
 subjects generally. They furnished him with a 
 list of Spanish army officers from whom he was 
 to select one. He selected, as he has said, at ran- 
 dom, not knowing a thing aboutit. That Spanish 
 officer, as a matter of course, instead of defending 
 the accused, did everything in his power to convict 
 him. 
 
 It is evident that the provisions of the treaty 
 were denied him, not only as to counsel, but as to 
 being present at the taking of the testimony, which 
 was taken in writing outof court. He was notfur- 
 nished with a copy of the charges which, together 
 with the written testimony, was read over in court, 
 and then the prisoner was brought in and asked 
 what he had to say for himself. It is obvious 
 that he was not allowed a defense but condemned 
 unheard. 
 a The excuse rendered by the Cuban authorities 
 
IB 
 
 for not allowing Mr. Thrasher counsel was, that 
 no counsel was permitted to appear in these cases 
 before the military court, because it produced de- 
 lay. It held back the victim from the " garote," 
 and from chains, and the mines. Such an answer 
 may content the present Administration; but it can 
 hardly be a legal answer to a positive requirement 
 in the treaty, that American citizens shall be al- 
 lowed to employ such advocates and solicitors as 
 they may judge proper in all their affairs, and in 
 all their trials at law. Neither can it be a very 
 satisfactory reply to an American, to assure him 
 that all Spanish subjects are made victims of a 
 similar barbarity. 
 
 It was not the usual course of proceeding, be- 
 cause no Spanish subject arrested as Mr. Thrasher 
 was, could be tried before the council of war. The 
 present laws of Spain, as stated in the work to 
 which I have already alluded, declare: 
 
 "That conspirators being apprehended by the parties of 
 troops, detailed for that purpose by the government, shall 
 be judged by the ordinary council of war ; but by the ordi- 
 nary jurisdiction, if they were apprehended by the order ol 
 requisition, or in aid of the civil authority, except in case 
 of resistance by the criminal to the troops. Then they shalr 
 likewise be judged militarily. In all other cases, according 
 to article thirteen, the offenders who commit these crimes, 
 shall be judged by the ordinary jurisdiction, even when the 
 apprehension shall have been made by armed force, but 
 with loss of special privilege. And in article fourteen, it is 
 provided in the trials by this law, there shall not be any au- 
 thority whatever, except such as shall be exercised by the 
 ordinary and military jurisdictions, according to the limits 
 which are here shown." 
 
 Mr. Thrasher's was not a military arrest. He 
 was taken in the first instance to the office of po- 
 lice, and was in custody of the chief of police. 
 His case was subsequently transferred to a mili- 
 tary court. He was tried, therefore, in violation 
 of the Spanish law, which gave jurisdiction of 
 such a case only to the ordinary tribunals. The 
 same remark is true of all those prisoners who 
 came in and delivered themselves up under the 
 proclamation of the Captain General, and of 
 Breckinridge and Beach, of Kentucky, who were 
 arrested at sea by a Spanish merchant ship, en- 
 deavoring to make their escape. Neither of them 
 were military arrests, or made under such circum- 
 stances as gave the council of war jurisdiction of 
 their cases. 
 
 The arrest of Breckinridge and Beach was a 
 violation of the law of nations. Those gentlemen 
 were in the Lopez expedition, but had made their 
 escape in an open boat, and were a long distance 
 from Cuba — outside of the league which limits the 
 jurisdiction of any nation over the ocean — when 
 they were captured by a Spanish schooner and 
 brought into Havana. Concha, the Captain Gen- 
 eral, in reply to Commodore Parker, said that 
 these men were pirates, and that he would try 
 them as such. Now, the Spanish Government 
 had no more right to seize those two men where 
 they were captured, than it had to seize them in 
 the streets of Washington city, unless the offense 
 leas piracy. They were, under these circumstan- 
 ces, brought into Havana and condemned by this 
 military tribunal, which had no jurisdiction over 
 them. I admit that, if they had returned volun- 
 tarily within the jurisdiction of the Island, they 
 might have been tried by a competent court under 
 
 the treaty. But having been arrested in violation 
 of the law of nations, it was the duty of the Cap- 
 tain General to discharge them, and the duty of 
 thisGovernmnt to demand their release. 
 
 The same was the case with the Contoy pris- 
 oners. They had only imagined a conspiracy, as 
 we find in the old English books, that one used 
 to be held guilty of treason who imagined the 
 King's death. If anything criminal was fastened 
 upon them, it seems that they only contemplated 
 an expedition to Cuba. They were outside of the 
 Spanish jurisdiction, anchored near an island in 
 the sea, under the jurisdiction of Mexico. They 
 were seized, and the Spanish authorities main- 
 tained that they had jurisdiction over them, be- 
 cause they were pirates. I believe that these pris- 
 oners were subsequently released, but that the 
 vessels were not; and I understand from the hon- 
 orable gentleman from Maine, [Mr. Smart,] that 
 that subject remains now precisely where it was, 
 and that the Government has taken no very effi- 
 cient means to enforce satisfaction to the owners 
 of those wrongfully-seized vessels. Let us make 
 compensation, by an appropriation, to the Spanish 
 Consul at New Orleans, whose property was de- 
 stroyed by the mob. But let us also demand sat- 
 isfaction for those violations of national law, and 
 for the injuries which our own citizens have sus- 
 tained in consequence of the violations of our treaty 
 by the Spanish authorities. 
 
 A few observations in reply to the remarks of the 
 gentleman from New York on the Crescent City 
 affair. It seems to me to be undeniable, that it is 
 not within the power of Spain to construe the treaty 
 so as to break down the commercial intercourse 
 between the two countries. Undoubtedly Spain 
 might exclude a person from her shores dangerous 
 to her safety. But the power must be exercised in 
 reason, and not capriciously, They had the right 
 to say that JVIr. Smith should not land, but they 
 had not the authority to say that the vessel should 
 not come into port and discharge its cargo, and land 
 its passengers and mails. It was not alleged that the 
 ship, passengers, cargo, and mails were dangerous 
 to Cuba, or even obnoxious to its authorities. They 
 had no right to deny communication with the ship, 
 unless its officers or crew had committed some of- 
 fense against the revenue or other laws, and even 
 then the remedy was by seizure and proceeding in 
 admiralty. Mr. Smith exercised the right of every 
 American citizen, guarantied by the Constitution, 
 to publish his own opinions, if he exercised any 
 right at all. He denies, however, having pub- 
 lished anything. If he continued going there with- 
 out landing, or violating their order not to land, 
 from now to the day of judgment, and observed the 
 institutions of Spain in Cuba, he might, when he 
 returned home, have published his views, and Spain 
 had no legal right to complain; it was no offense 
 against her laws or jurisdiction. If she had a 
 right to complain, she could only proceed through 
 the judicial tribunals of this country; that might 
 have been done in this country, as it was in Eng- 
 land, in the case of Peltier, for a libel on Napo- 
 leon, and on the common-law principle of the 
 greater the truth the greater the libel, there is no 
 doubt Smith would have been severely punished. 
 But to deny all commercial intercourse — to deny 
 that the passengers should be landed, and the mails 
 received, because "the individual, William Smith," 
 published falsehoods in this country, relative to the 
 
14 
 
 Spanish authorities in Cuba, is too ridiculous an 
 idea to be entertained by any man but a Spaniard. 
 I admit if the authorities of Cuba had addressed 
 themselves to this Government in the first instance, 
 through the Spanish Minister, and requested that 
 that individual should not be permitted to go 
 on a semi-official vessel, as a matter of courtesy, 
 the request should have been complied with. But 
 what right had the Spanish authorities in Cuba 
 to take a matter for the diplomatic agents of the 
 Governments into their own hands, and exclude a 
 vessel from commerce on such frivolous pretense? 
 Commercial treaties are worth nothing if our com- 
 mercial marine can be dealt with in that manner 
 with impunity. 
 
 Sir, I have made these observations, not because 
 I entertain any sentiments of hostility to the pres- 
 ent Administration, but because I wish to draw 
 attention to the gross manner in which the rights 
 of American citizens are trampled on by other 
 Powers. Its frequency has erected itself into im- 
 punity. The time has arrived when the American, 
 like Briton, should feel the protection of his coun- 
 try's flag in the remotest corner of the globe. 
 That Government which does not protect its own 
 citizens against foreign oppression, will soon sink 
 beneath their contempt, and the scorn of the civil- 
 ized world. The time has arrived when new life 
 and energy should be infused into our foreign 
 relations. 
 
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