The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1842-06-18

tie paragI apis quoted from the newspaper was the
ground of the proceeding ofhis Government but says
that proceeding as the paragraph did from MI ken-
dalps partners in business might be considered as
impartial and served to strengthen the prescriptions
against him. He denies that it is the duty of his Co.
vernment to allow Mr. Kendall the benefit of the con-
of the article from which the paragraph sup
posed TO inculpate him had been quoted, al
though the extract may be used against him. lie
endeavos to prove himself correct in calling Mr. Ken
dali Commissioner of the Texans, and proceeds to
define what he understands Commissioner to be.
If Mr.. Kendall had passport, that, he admits would
be prna facie evidence in his favor and that IT
should be ,cerained that he had an unconditional
passport which had been destroyed by officer OF
the Mexican army, he should be set at liberty, and
that had been taken to ascertain these facts
These appear be either unounded in fact
or if true, to furnish sufficient ground for regard
ing Mr.. Kendall as begerent enemy, for decin-
ing to comply with the demand made by this Govern
in his behalf In the first place. it is said he was
united with the invading enemies OF the country, In
whose company he was taken, and under whose pro-
lection he was journeying.
That he travelled with the Texans is true; but,
has been already said, that fact alone does not
stitute him combatant 1t may furnish in the first
| instance, presumption that he was so; but such
presumption may be repealed, and is fully repelled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-combatans from the liability of being
made prisoners of war, if it were to every
claim for such exemption to say that the person max
ing it was united with 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 little
prise that the Mexican Secretary of State is found to
assign this for making Mr.. Kendall a pri
soner. The direction of that law only, is to pro-
hibt the travellers entrance or to send him
back if he does enter has penalty of chains,
dungeons, or condemnation to the public works And
| the Mexican Secretary himself sufficiently shows
that this law has application 10 the case because
he says it intended only for the of one, two,
| or few individuals Having quoted this law, and
then finding that in its just import furnished no au-
lhorty for tue treatment which these citizens of the
United States had received the Mexican Secretary
appears to treat the subject if this law had been
up their claim for liberation; while, in truth,
all that MIR. 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 had been prescribed by that
law and thereupon the Secretary adroy denied that
the law applies to the at all. In this he is
doubt quite right.
AS to the assertion that Mr.. Kendall an agent
Of the Texans, or member, properly speaking, of
tho expedition, and the reference in proof of this
sertion the article in the newspaper with which he
connected all this founded in misconstruc-
ton, you will see, ofthe true import of the article
ITSELF If newspaper paragraph were tit to be
parded in such case La the article Mr. Kendall
had been called 'avant courier merely signify
that he went forward, in approaching Santa Fe in ad-
vance of the Of the party. If others for
ward for other purposes he might STILL in pursuance
of his objects, go with them Blu. Mr.. Kendall not
being responsible for this article, shown 10 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 enemy raises presump-
ton against the party; but the Secretary does
not say that this presumption may not be
| rebutted Why, indeed, does he call it pre-
sumption, unless he means that it thing calling
for explanation, and which may be explained. 1t is
explained, fully and completely. Mr.. Kendall, as
we think, brings himself clearly within the exemp-
ton of the law of nations as practised in modern
times; and to insist on prescriptions and to give them
the force of conclusive proofs in defiance of all
polling proofs is to render that law in its application
to cases of this kind null and void iii be admitted
that p,ina tacie the presumption is against Mr. Ken
dali has he not repealed it? He has made an eff
fort to do So but instead of meeting this effort by
gument and the proofs which support it, by opposite
proofs, the Secretary appears to content himself
with stating that such is the legal presumption; thus
wholly avoiding the true point of the case. This
Government thinks that the facts stated and proved,
show MIR. Kendall to have been party to the mill
tary expedition of Texas to have had no hostile in
tention against Mexico; to have entered her territory
for no purpose of assisting to make her citi-
zens, dismember her provinces Overturn her Gov
| eminent.
1t does not very satisfactorily appear, from any
correspondence information now in this Depart
ment in what light Mexico looks upon those persons
| made prisoners at Santa Fe, whom she has 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 possibility however, that different mode
OF considering them may be adopted, and that they
may be thought to be amenabe to the municipal laws
| Of Mexico Any proceeding founded on this idea
would undoubtedly be attended with most serious
consequences 1t is now several years since the in
dependence OF Texas, as 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 long time
there has been no hostile foot in Texas, is public
war; and as such it has been and will be regarded by
this Government. 1t is not now an outbreak of re-
bellon, fresh nsurrectlcn the parties to which may
be treated as rebels The contest, supposed indeed,
to have been substantially ended, has at least adj
vanced far beyond that point 1t is public war, and
persons captured in the course Of it who to be
detained at all, are to be detained prisoners Of
war, and not otherwise.
1t is true that the independence of Texas has not
been recognized by Mexico 1t 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 towards both those
Governments and IS as much bound to protect its cit
| liens IN proper intercourse with Texas against
| injuries by the Government of Mexico, as it would
have been to protect such citizens in like inter-
course with Mexico against injuries by Spain. The
period which has elapsed, since Texas threw off the
authority of Mexico, is nearly as long 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 Jacnto, on the 2lst day of April 1885, until
the commencement of the present year, and, during
all this period, Texas has maintained independent
| Government carried on commerce, and made trea-
ties with nations in both hemispheres, and kept aoof
all attempts at invading her territory. If, under
these circumstances any citizen Of the United States