To this last contention as to the protocol the American consul very properly replied that Article VII of the treaty of 1795 imposes no condition of residence either on Spanish subjects in the United States or on American subjects resident in the dominions of Spain; for were it so the status of American citizens could be taken away from thousands of Spaniards in the United States, who visit both countries every year as merchants, manufacturers, traders, and tourists. He also interposed to this contention of the Spanish admiral the very decisive objection that the protocol can not detract from the treaty, and that the protocol must be construed to conform to the treaty, and not the treaty to the protocol.

The foregoing is a compendium of demands, protests, objections, and refusals which began before the trial of these men, and which were continued for some time after such trial had been completed by their sentence to death.

They were tried by a naval court-martial of the most summary character, on the 8th day of May, 1896, the trial lasting but a few hours. They had no opportunity to summon or examine witnesses, or to be defended by counsel of their own selection. They were not tried separately but together, and, it seems, with several other persons. The evidence against them consisted solely of the testimony of Captain Butron and the other officers of the Mensajerra, the Spanish gunboat which had taken them prisoners. A lieutenant of the Spanish navy was assigned to their defense, who asked no questions upon the trial and who produced no witnesses. His summing up consisted of a plea for mercy to the prisoners, although it is said that he stated they were American citizens. There was an interpreter present, but he did not make his presence known to the prisoners until they were asked if they had anything to say in their own defense. This was after the summing up of the prosecution, and of course was after the evidence, both of which were given in Spanish and were not translated to the prisoners. The naval officer who was appointed to defend them did not communicate to them the substance of the evidence or of the summing up of the prosecutor. It is very evident that this naval officer could not speak English. It appears to the satisfaction of your committee that he did not utter a single word to his clients during the trial, and that he did not say or do anything in behalf of the prisoners, except to ask mercy.

After this mockery of a trial the presiding officer of the court-martial asked Laborde in Spanish what he had to say in his defense. Laborde understood that language. He said a few words. So it went on until the last man was reached, William Gildea, and the presiding officer spoke to him in Spanish. He did not understand, and then the interpreter said, "Do you wish to say anything?" and Gildea then arose and said, "All I have to say is, I do not understand one word which has been said to day, either for me or against me, and, at any rate, I appeal to both the British and American consuls." Melton said, truly, that he came aboard the schooner as the correspondent of the Jacksonville Times-Union. The trial terminated immediately after these statements were made. The prosecutor moved for a sentence of death and it was straightway pronounced.

The Department of State requested, or demanded, that Spain should not execute the sentence until a copy of the charges and evidence could be furnished to this Government and an opportunity given to investigate the case. The execution of the sentence seems to have been stayed, pending an appeal to the superior tribunals of Spain at Madrid, and the result was that after long delay the judgment of the court-martial

was annulled about September 8, 1896, and a new trial ordered before the ordinary tribunals.

It will be observed that this judgment of reversal proceeds upon the theory that these captives are justiciable in the Spanish courts for crimes alleged to have been committed by them against Spanish laws, and it decided nothing more than that the naval court-martial was not a proper or competent tribunal for their trial. The appellate court merely held that Spain had mistaken her own forum.

Shortly after this decision, Melton, on the 17th of October, 1896, was taken to the guardroom in the prison to make a preliminary deposition, preparatory, as he says, for trial by an ordinary court-martial upon the charge of piracy and rebellion. The first trial had been by a summary naval court-martial. On the 19th of October this procedure was continued, and he was asked, as he had been on the previous day, what proofs he could produce to show he was an American citizen, notwithstanding the fact that it seems to have been conceded throughout the first trial that he was an American citizen.

This mode of examination continued until December 11, 1896, and probably thereafter, for upon that day Mr. Laborde wrote to Mr. Springer, informing him that he had been ordered on the day before by the military judge of the prosecution of the Competitor crew to dress himself in a military suit for the purpose of being recognized by someone. Against this requirement Laborde protested, and refused to disguise himself. The military judge immediately answered that he would compel Laborde by force to comply, and, fearing brutality, he obeyed. Since that time no proceedings by way of trial have been had. From the 30th of April or the 1st of May, 1896, down to the present time, a period of more than fourteen months, Melton, Laborde, and Gildea have been in close confinement in the Cabanas prison or fort at Habana.

The portions of the treaty, protocol, Consular Regulations, and statutes having reference to the foregoing statements are as follows:

ARTICLE VII.

And it is agreed that the subject or citizens of each of the contracting parties, their vessels or effects, shall not be liable to any embargo or detention on the part of the other, for any military expedition or other public or private purpose whatever; and in all cases of seizures, detention, or arrest for debts contracted, or offenses committed by any citizen or subject of the one party within the jurisdiction of the other, the same shall be made and prosecuted by order and authority of law only, and according to the regular form of proceedings 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 causes, and at the taking of all examinations and evidence which may be exhibited in the said trials. (Treaty with Spain, 1795.)

1. No citizen of the United States residing in Spain, her adjacent islands, or her ultramarine possessions, charged with acts of sedition, treason, or conspiracy against the institutions, the public security, the integrity of the territory, or against the supreme Government, or any other crime whatsoever, shall be subject to trial by any exceptional tribunal, but exclusively by the ordinary jurisdiction, except in the case of being captured with arms in hand.

2. Those who, not coming within this last case, may be arrested or imprisoned, shall be deemed to have been so arrested or imprisoned by order of the civil authority for the effects of the law of April 17, 1821, even though the arrest or imprisonment shall have been effected by armed force.

3. Those who may be taken with arms in hand, and who are therefore comprehended in the exception of the first article, shall be tried by ordinary council of war, in conformity with the second article of the herein before-mentioned law; but

even in this case the accused shall enjoy for their defense the guaranties embodied in the aforesaid law of April 17, 1821.

4. In consequence whereof, as well in the cases mentioned in the third paragraph as in those of the second, the parties accused are allowed to name attorneys and advocates, who shall have access to them at suitable times; they shall be furnished in due season with copy of the accusation and a list of witnesses for the prosecution, which latter shall be examined before the presumed criminal, his attorney, and advocate, in conformity with the provisions of articles 20 to 31 of the said law; they shall have the right to compel the witnesses of whom they desire to avail themselves to appear and give testimony or to do it by means of depositions; they shall present such evidence as they may judge proper, and they shall be permitted to present and to make their defense, in public trial, orally or in writing, by themselves or by means of their counsel.

5. The sentence pronounced shall be referred to the audiencia of the judicial district, or to the Captain General, according as the trial may have taken place before the ordinary judge or before the council of war, in conformity also with what is prescribed in the above-mentioned law. (Protocol of 1877.)

171. If the consul is satisfied that an applicant for protection has a right to his intervention he should interest himself in his behalf, examining carefully his griev ances. If he finds that the complaints are well founded he should interpose firmly, but with courtesy and moderation in his behalf. If redress can not be obtained from the local authorities the consul will apply to the legation of the United States, if there be one in the country where he resides, and will in all cases transmit to the Department copies of his correspondence, accompanied by his report. (United States Consular Regulations.)

Officers of vessels of the United States shall in all cases be citizens of the United States. (Rev. Stat., sec. 4131, p. 795.)

If the uncontradicted affidavits of Melton, Laborde, and Gildea are to be taken as true, and if it is conceded that the vessel was seized and that they were arrested, within 1 marine league of the coast of Cuba, it is equally well established that they were coerce to that point by superior force. Under such circumstances these captives can not be made amenable to the laws of Spain. It is a well-settled principle of international law that the ships and subjects of a neutral nation, which are driven by superior force into prohibited ports or waters of a belligerent, draw upon themselves no penal consequences therefor, but must be allowed freely to depart therefrom; and the carrying of these three men into Cuban waters was as involuntary on their part as if they had been driven thither by storm or stress of weather.

Under the facts and circumstances of this case, it is not competent for Spain to try these prisoners by any military tribunal whatever. Two of the men, Gildea and Laborde, were officers of an American vessel driven under duress into Cuban waters; Melton, a passenger, was an American native citizen before he took passage-a friendly neutral, a noncombatant, not armed in any way, and his character was not changed by the forcible diversion of the vessel from its voyage to Lemon City to the Cuban coast.

They are not amenable to the jurisdiction of any Spanish courts for piracy, for the reason that it plainly appears that they had never committed or could have intended to do any act of robbery or depredation upon the high seas, which acts are the essentials of piracy, and it is clear that no such acts were ever intended by either of these prisoners.

Piracy is an assault upon vessels navigated on the high seas, committed animo furandi, whether the robbery or forcible depredation be effected or not, and whether or not it be accompanied by murder or personal injury. (1 Phill., Sec. CCCLVI.) Piracy, by the law of nations, is defined with reasonable certainty to be robbery upon the seas. (U. S. v. Smith, 5 Wheat., 153.)

By the law of nations, robbery or forcible depredation upon the sea, animo furandi, is piracy. (Story Const., S. 1159.)

It is not competent for Spain, by declaring that to be piracy which is not piracy under the definitions of international law, to extend the penalties of that crime, or the jurisdiction of its courts as to piracy, to the

subjects of other nations, or to incorporate in any way its own munici pal definition of the crime of piracy into the law of nations to any degree beyond the definition established by international law.

Nor are these prisoners amenable to any Spanish court for the crime of rebellion by reason of any acts committed by them, even if such acts are subjected to the most strict and adverse construction. Allegiance either as a subject or as an alien amenable by residence or presence to the laws of a foreign state is an indispensable element to constitute the crime of treason or rebellion. It is the opinion of your committee that these men never became amenable to the laws of Spain to that intent. Irrespective of any of the foregoing considerations, the conduct of Spain, as herein before detailed, constitutes such delay and denial of justice and such an actual infliction of injustice upon these men as to make it the duty of this Government to demand reparation therefor, irrespective of any act which these prisoners may have committed up to the date of their capture. Among the acts of reparation which ought to be demanded should be the release of these captives.

The principles which govern the trial of such cases as this were correctly expressed by Mr. Evarts, while Secretary of State, as follows:

It has, from the very foundation of this Government, been its aim that its citizens abroad should be assured of the guarantees of law; that accused persons should be apprised of the specific offense with which they might be charged; that they should be confronted with the witnesses against them; that they should have the right to be heard in their own defense, either by themselves or such counsel as they might choose to employ to represent them; in short, that they should have a fair and impartial trial, with the presumption of innocence surrounding them as a shield at all stages of the proceedings, until their guilt should be established by competent and sufficient evidence. (2 Wharton Dig., p. 623.)

The rights thus defined have been violated in the persons of these prisoners. They have been tried and sentenced to death by a summary naval court-martial in a proceeding which has been annulled by the appellate courts of Spain at Madrid, upon the ground that such a courtmartial had no jurisdiction whatever over them. Ten months have elapsed since this death sentence was annulled, and they have not again been brought to trial. In the mean time they have been subjected to protracted preliminary examinations preparatory to their trial by another court-martial, which differs from the first one only in the fact that it is less summary and more formal in its character than the first. At the first trial they were not allowed to be defended by counsel of their own selection; opportunity or time to produce witnesses was denied to them by the celerity with which that trial was instituted and conducted. They were only defended by a Spanish naval officer, assigned to that duty by the court, who could not or did not speak English, who never spoke to them during the trial, who did not introduce or attempt to introduce any evidence in their behalf, who asked for no delay of the trial, and whose only exertion in their defense was a plea for mercy, which admitted their guilt. Although an interpreter was present, neither the evidence for the prosecution nor the summing up of the prosecutor was translated to them. His presence was not disclosed until after the prosecution had closed its testimony and argument. The only translation made to them was just before the close of hese sanguinary proceedings, when they were asked if they had any thing to say. Necessarily they had or could have little to say, although one of them, Gildea, protested that he had not understood a word of the proceedings against him by which his life was to be adjudged forfeited. With these protests the trial ended, and the defendants were immediately sentenced to death.

It is now fourteen months since they were arrested, during all of which time they have been held in the Cabañas fortress as prisoners. Melton and Laborde are unquestionably citizens of the United States. Gildea is a British subject, but he was a sailor upon an American vessel when taken; was acting as its mate, and it is the opinion of your committee that he is entitled to be protected by this Government. He was serving under the flag and he is entitled to be protected by it.

In our opinion these acts of delay and denial of justice, and of the infliction of injustice, vitiate and make void any right which Spain had at the beginning of this transaction to proceed criminally against any of these men. This Government should demand that they be set at liberty and that the Competitor be restored to her owner, as there is no evidence that the owner knew anything about the divergence of the vessel from its regular voyage to Lemon City, Fla.

The committee report the accompanying joint resolution as a substitute for the aforesaid Resolution 149 and recommend its adoption.