served to strengthen the presumptions against him. He denies that it is the duty of his government to allow Mr. Kendall the benefit of the context of the article from which the paragraph supposed to inculpate him had been quoted, although the extract may be used against him. He endeavors to prove himself correct in calling Mr. Kendall a commissioner of the Texans, and proceeds to define what he understands a commissioner to be. If Mr. Kendall had a passport, that, he admits, would be prima facie evidence in his favor; and that, if it should be ascertained that he had an unconditional passport, which had been destroyed by an officer of the Mexican army, he should be set at liberty, and that measures had been taken to ascertain these facts.

These reasons appear to be either unfounded in fact, or, if true, to furnish no sufficient ground for regarding Mr. Kendall as a belligerent enemy, or for declining to comply with the demand made by this government in his behalf.

In the first place, it is said that he was united with the invading enemies of the country, in whose company he was taken, and under whose protection he was journeying. That he travelled with the Texans, is true; but, as has been already said, that fact alone does not constitute him a combatant. It may furnish, in the first instance, a presumption that he was so; but such a presumption may be repelled, and is fully repelled, by the circumstances of the case. There would be no meaning in that well-settled principle of the law of nations which exempts men of letters and other classes of non-combatants from the liability of being made prisoners of war, if it were an answer to every claim for such exemption to say that the person making it was united with a military force, or journeying under its protection.

As to the assertion that it is against the law of Mexico for foreigners to pass into it across the line of Texas, it is with no little surprise that the Mexican Secretary of State is found to assign this reason for making Mr. Kendall a prisoner. The direction of that law is only to prohibit the traveller's entrance, or to send him back if he does enter. It has no penalty of chains, dungeons, or condemnation to the public works. And the Mexican Secretary himself sufficiently shows that this law has no application to the case, because, he says, it was intended only for the case of one, two, or a few individuals.

Having quoted this law, and then finding that, in its just import, it furnished no authority for the treatment which these citizens of the United States had received, the Mexican Secretary appears to treat the subject as if this law had been set up to assist their claim for liberation; while, in truth, all that Mr. Ellis did, in this respect, was to say, that, if that law governed the case, then no penalty, no punishment, and no treatment of the prisoners could be justified but such as had been prescribed by that law; and thereupon the Secretary adroitly denied that the law applies to the case at all. In this he is no doubt quite right.

As to the assertion that Mr. Kendall was an agent of the Texans, or a member, properly speaking, of the expedition, and the reference, in proof of this assertion, to the article in the newspaper with which he was connected, all this was founded in misconstruction, as you will see, of the true import of the article itself, even if a newspaper paragraph were fit to be regarded in such a case. In the article, Mr. Kendall had been called an "avant-courier," merely to signify that he went forward, in approaching Santa Fé, in advance of the rest of the party. If others went forward for other purposes, he might still, in pursuance of his own objects, go with them. But Mr. Kendall not being responsible for this article, or shown to have had any knowledge of it, it cannot be of the least force against him, whatever may be its import.

The Secretary says, finally, that being found in company with an enemy raises a presumption against the party; but the Secretary does not say that this presumption may not be rebutted. Why, indeed, does he call it a presumption, unless he means that it is a thing calling for explanation, and which may be explained? It is explained, fully and completely. Mr. Kendall, as we think, brings himself clearly within the exemption of the law of nations, as practised in modern times; and to insist on presumptions, and to give them the force of conclusive proofs, in defiance of all repelling proofs, is to render that law, in its application to cases of this kind, null and void. If it be admitted that, primâ facie, the presumption is against Mr. Kendall, has he not repelled it? He has made an effort to do so; but, instead of meeting this effort by argument, and the proofs which support it by opposite proofs, the Secretary appears to 37

VOL. VI.

content himself with stating, that such is the legal presumption; thus wholly avoiding the true point of the case. This govern ment thinks that the facts stated and proved show Mr. Kendall to have been no party to the military expedition of Texas; to have had no hostile intention against Mexico; to have entered her territory for no purpose of assisting to make war on her citizens, dismember her provinces, or overturn her government.

It does not very satisfactorily appear, from any correspondence or information now in this department, in what light Mexico looks upon those persons made prisoners at Santa Fé, whom she has a right to consider as engaged in the service of Texas, and therefore as her enemies. We must presume that she means to regard them as prisoners of war. There is a pos

sibility, however, that a different mode of considering them may be adopted, and that they may be thought to be amenable to the municipal laws of Mexico. Any proceeding founded on this idea would undoubtedly be attended with the most serious consequences. It is now several years since the independence of Texas, as a separate government, has been acknowledged by the United States, and she has since been recognized in that character by several of the most considerable powers of Europe. The war between her and Mexico, which has continued so long, and with such success, that for a long time there has been no hostile foot in Texas, is a public war, and as such it has been and will be regarded by this government. It is not now an outbreak of rebellion, a fresh insurrection, the parties to which may be treated as rebels. The contest, supposed, indeed, to have been substantially ended, has at least advanced far beyond that point. It is a public war, and persons captured in the course of it, who are to be detained at all, are to be detained as prisoners of war, and not otherwise.

It is true that the independence of Texas has not been recognized by Mexico. It is equally true that the independence of Mexico has only been recently recognized by Spain; but the United States having acknowledged both the independence of Mexico before Spain acknowledged it, and the independence of Texas although Mexico has not yet acknowledged it, stands in the same relation toward both those governments, and is as much bound to protect its citizens in a proper intercourse with Texas against injuries by the government of Mexico, as it

would have been to protect such citizens in a like intercourse with Mexico against injuries by Spain. The period which has elapsed since Texas threw off the authority of Mexico is nearly as long as the whole duration of the Revolutionary war of the United States. No effort for the subjugation of Texas has been made by Mexico, from the time of the battle of San Jacinto, on the 21st day of April, 1836, until the commencement of the present year, and during all this period Texas has maintained an independent government, carried on commerce, and made treaties with nations in both hemispheres, and kept aloof all attempts at invading her territory. If, under these circumstances, any citizen of the United States, in whose behalf this government has a right on any account or to any extent to interfere, should, on a charge of having been found with an armed Texan force acting in hostility to Mexico, be brought to trial and punished as for a violation of the municipal laws of Mexico, or as being her subject engaged in rebellion, after his release has been demanded by this government, consequences of the most serious character would certainly ensue. You will, therefore, not fail, should any indication render it necessary, to point out distinctly to the government of Mexico the dangers, should the war between her and Texas continue, of considering it, so far as citizens of the United States may be concerned, in any other light than that of a public national war, in the events and progress of which prisoners may be made on both sides, and to whose condition the law and usages of nations respecting prisoners of war are justly applicable.

And this makes it proper that I should draw your particular attention to the manner in which the persons taken near Santa Fé have been treated, as we are informed.

Mr. Kendall, and other persons with him, having been carried to Santa Fé from the place of capture, were there deprived of their arms. To this there can be no objection, if we consider them as prisoners of war, because prisoners of war may be lawfully disarmed by the captor; but they were also despoiled, not only of every article of value about their persons, but of their clothing also, their coats, their hats, their shoes, things indispensable to the long march before them. If these facts be not disproved, they constitute an outrage by the local authorities of Mexico for which there can be no apology. The privations

and indignities to which they were subjected, during their march of two thousand miles to the city of Mexico, at the most inclement season of the year, were horrible, and, if they were not well authenticated, it would have been incredible that they should have been inflicted in this age, and in a country calling itself Christian and civilized. During many days they had no food, and on others only two ears of corn were distributed to cach man. To sustain life, therefore, they were compelled to sell, on the way, the few remnants of clothing which their captors had left them; but by seeking thus to appease their hunger, they increased the misery which they already endured from exposure to the cold. Most dreadful of all, however, several of them, disabled by sickness and suffering from keeping up with the others, were deliberately shot, without any provocation. Those who survived to their journey's end were, many of them, afflicted with loathsome disease; and those whose health was not broken down have been treated, not as the public law requires, but in a manner harsh and vindictive, and with a degree of severity equal, at least, to that usually inflicted by the municipal codes of most civilized and Christian states upon the basest felons. Indeed, they appear to have been ranked with these; being thrust into the same dungeons with Mexican malefactors, chained to them in pairs, and, when allowed to see the light and breathe the air of heaven, required, as a compen sation therefor, to labor, beneath the lash of a task-master, upon roads and public works of that country.

The government of the United States has no inclination to interfere in the war between Mexico and Texas, for the benefit or protection of individuals, any further than its clear duties require. But if citizens of the United States who have not renounced, nor intended to renounce, their allegiance to their own government, nor have entered into the military service of any other government, have nevertheless been found so connected with armed enemies of Mexico as that they may be lawfully captured and detained as prisoners of war, it is still the duty of this government to take so far a concern in their welfare, as to see that, as prisoners of war, they are treated according to the usage of modern times and civilized states.

Indeed, although the rights or the safety of none of their own citizens were concerned, yet, if, in a war waged between two