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36TH ConeRESs, SENATE. Ex. Doc. 5/,/

2d Session.

MESSAGE

FROM THE

PRESIDENT OF THE UNITED STATES,

COMMUNICATING,

In compliance with resolutions of the Senate, information upon the subject
of the Aves Island.

Fesrvuary 25, 1861.—Read, and ordered to be printed.

Marcu 2, 1861.—Ordered, That 2,500 extra.copies of the message of the President of the
United States, communicating, in compliance with resolutions of the Senaté of the 17th and
18th February, 1858, correspondence relative to the Aves Island, be printed for the use of
the Senate. i

To the Senate of the United States:

In compliance with the resolutions of the Senate of the 17th and
18th February, 1858, requesting information upon the subject of the
Aves island, I transmit a report from the Secretary of State, and the

documents which accompanied it.
JAMES BUCHANAN.
Wasuineron, February 23, 1861.

DEPARTMENT OF STATE,
Washington, February 23, 1861.

The Secretary of State, to whom was referred the resolution of the
Senate of the 17th February, 1858, requesting the President, ‘‘if ‘not
incompatible with the public interests, to cause to be furnished to the
Senate all the correspondence, payers, and documents on file in the
Department of State, in original or in copy, in the case of Philo S.
Shelton and Sampson & Tappan, respecting ‘Shelton’s’ or ‘Aves’
island, not heretofore furnished by said department to the Senate;’’
and the supplementary resolution of the 18th February, requesting, in
addition, to be furnished with ‘‘all the correspondence, papers, and
documents on file in the Department of State, in original or: copy,
relative to the cases of Lang & Delano, and Wheelwright & Cobb,
respecting the island of Aves, in artbbeansed;“Tot heretofore
furnished by said department,’’ hasithe hobict'téllay before the Presi-
dent the papers mentioned in the subjoineddist.cicay |

Respectfully submitted. TE Reps SO
VECCNS. 8. BLACK.

ae rs 5 Wee

i a
ee Dee aes

rt
one

The PRESIDENT.

AVES ISLAND.

vi , List of documents.
S a Sampson & Tappan and Shelton to Mr. Marcy, January 15,
1855.

Samecto same, January 29, 1855.

Mr. Marcy to Messrs. Sampson & Tappan and Shelton, Jan. 31, 1855.
Mr. Shelton to Mr. Marcy, February 26, 1855.

Mr. Marcy to Mr. Shelton, March 2, 1665)

Mr. French to Mr. 1] Marcy, (inclosure,) May 5, 1855.
Same to same, (inclosures,) May 12, 1855.

Mr. Shelton to Mr Marcy, May 14, 1855.

Mr. Marcy to Mr. Shelton, June 14, 1855.

Mr. Shelton to Mr. Marcy, June 20, 1855.

Mr. French to same, June 22, 1855.

Mr. Shelton to same, (inclosures,) June 24, 1855.

Mr. French to same, June 26, 1855.

Same to same, (inclosures,) June 30, 1855.

Same to same, December 17, 1855.

Mr. Marcy to Mr. French, December 20, 1855. -

Mr. Sanford to the President, December 24, 1855.
Same to Mr. Marcy, January 3, 1856.

Mr. Marcy to Shelton, January 4, 1856.

Mr. Sanford to the President, (inclosure,) January 5,-1856.
Same to Mr. Marcy, January 5, 1856.

Mr. Marcy to Mr. Sanford, J anuary T, 1856.

Same to same, January 9, 1856.

Mr: Sanford to Mr. Marcy, January 12, 1856.

Same to the President, (inclosures,) January 13, 1856.
Mr. Shelton to Mr. Marcy, January 15, 1856.

Mr. Sanford to same, January 16, 1856.

Mr. Marcy to Mr. Shelton, January 19, 1856.

Mr. French to Mr. Marcy, (inclosure,) March 21, 1856.
Mr. Thomas to Mr. French, January 22, 1856.

Mr. Marcy to Mr. Sanford, E anuary 25, 1856.

Mr. Sanford to Mr. Marcy, (inclosure,) February 1, 1856.
Mr. Marcy to Mr. Sanford, February 6, 1856.

Same to same, February 20, 1856.

Mr. Sanford to Mr. Marcy, (inclosures,) March 8, 1856.
Mr. Marcy to Mr. Sanford, March 24, 1856.

Mr. Sanford to Mr. Marey, April 14, 1856.

Same to the President, (inclosures,) April 14, 1856.
Mr. Marcy to Mr. Sanford, April 17, 1856.

Mr. Sanford to Mr. Marcy, (inclosure,) April 19, 1856.
Mr. Marcy to Mr. Sanford, May 1, 1856.

Mr. Sanford to Mr. Marcy, May 9, 1856.

Same to same, (inclosures,) May 10, 1856.

Mr. Marcy to Mr. Sanford, May 16, 1856.

Mr. French to Mr. Marcy, June 15, 1856.

Mr. Santord to same, June 30, 1856.

Same to same, (inclosure,) July 3, 1856.

AVES ISLAND.

Mr. Marcy to Mr. Sanford, July 7, 1856.

Mr. Thomas to same, July 8, 1856.

Mr. Sanford to Mr. Thomas, July 11, 1856.

Same to Mr. Marcy, July 15, 1856.

Mr. Marcy to Mr. Sanford, July 21, 1856.

Sampson & Tappan and Shelton to Mr. Marcy, July 21, 1856.
Mr. Sanford to the same, (inclosure,) August 11, 1856.
Mr. Eames to same (inclosure,) October 9, 1856.
Mr. Sanford to the President, December 14, 1856.
Same to Mr. Marcy, December 16, 1856.

Mr. Marcy to Mr. Sanford, December 23, 1856.

Mr. Sanford to Mr. Marcy, December 27, 1856.

’ Mr. Eames to same, (inclosure,) January 7, 1857.
Mr. Marcy to Mr. Sanford, January 9, 1857.

Mr. Sanford to Mr. Marcy, January 10, 1857.

Same to same, (inclosure,) January 22, 1857.

Same to same, (inclosure,) January 26, 1857.

Mr. Shelton to Mr. Marcy, January 31, 1857.

Mr. Marcy to Mr. Shelton, February 3, 1857.

Same to Mr. Sanford, February 3, 1857.

Same to Mr. Eames, (inclosure,) February 3, 1857.
Mr. Eames to Mr. Marcy, February 28, 1857.

Mr. Cass to Mr. Eames, April 1, 1857. :

Mr. Eames to Mr. Cass, (inclosure,) April 1, 1857.
Mr. Cass to Mr. Shelton, April 3, 1857.

Same to Mr. Hames, April 3, 1857.

Mr. Cass to Mr. Eames, May 25 Lent:

Mr. Eames to Mr. Cass, (inclosure,) June 12, 1857.
Mr. Sanford to same, (inclosure,) August 10, 1857.
Same to same, (inclosure,) August 16, 1857.

Mr. Cass to Mr. Hames, August 31, 1857.

Mr. Sanford to Mr. Cass, (inclosure,) August 31, 1857.
Mr. Appleton to Mr. Sanford, September 4, 1857.
Mr. Cass to Mr. Hames, September 4, 1857.

Mr. Ribas to Mr. Cass, September 4, 1857.

Mr. Cass to Mr. Ribas, September 11, 1857.

Mr. Ribas to Mr. Cass, September 18, 1857.

Mr. Gutierrez to same, September 21, 1857.

Mr. Sanford to same, September 29, 1857.

Mr. Cass to Mr. Eames, October 6, "1857.

Mr. Hames to Mr. Cass, (inclosure, ) October ae 1857.
Mr. Gutierrez to same, (inclosure,) October 31, ‘1857.
Mr. Eames to same, (inclosure,) November 38, 1857.
Mr. Cass to Mr. Gutierrez, November 12, 1857.

Mr. Eames to Mr. Cass, (inclosures,) December 3, 185,
Mr. Cass to Mr. Hames, December 15, 1857.

Mr. Shelton to Mr. Cass, December 17, 1857.

Mr. Cass to Mr. Bricefio, February 22, 1858.

Mr. Bricefio to Mr. Cass, February 24, 1858.

Mr. Hames to same, (inclosure,) February 24, 1858.
Mr. Cass to Bricefio, February 26, 1858.

AVES ISLAND.

Mr. Bricefio to Mr. Cass, February 27, 1858.

Mr. Cass to Mr. Bricefio, March 4, 1858.

Mr. Bricefio to Mr. Cass, March 4, 1858.

Same to same, March 8, 1858. .

Mr. Eames to same, (inclosure,) March 25, 1858.

Mr. Bricefio to same, (inclosure,) April 7, 1858.

Mr. Sanford to same, April 13, 1858.

‘Mr. Bricefio to same, April 25, 1858.

Mr. Cass to Bricefio, April 27, 1858.

Mr. Sanford to Mr. Marcy, May 2, 1858.

Same to Venezuelan Minister of Foreign Relations, May 10, 1858.
Same to Mr. Eames, May 10, 1858.

Mr. Eames to Mr. Cass, (inclosure,) May 13, 1858.

Mr. Sanford to same, May 22, 1858.

Mr. Eames to same, (inclosure,) July 7, 1858.

Mr. Cass to Mr. Sanford, July 31, 1858.

Mr. Appleton to Mr. Turpin, August 24, 1858.

Messrs. Cotting & Lang to Mr. Cass, August 31, 1858.
Mr. Cass to Mr. Turpin, September 3, 1858.

Mr. Sanford to Mr. Cass, September 8, 1858.

Mr. Cass to Mr. Turpin, September 15, 1858.

Mr. Appleton to Mr. Sanford, September 27, 1858.

Mr. Turpin to Mr. (Cass, inclosure,) October 23, 1858.
Same to same, (inclosure,) December 1, 1858.

Mr. Sanford to same, December 9, 1858.

Mr. Cass to Mr. Turpin, December 10, 1858.

Mr. Sanford to Mr. Cass, (inclosures,)-January 14, 1859.
Mr. Appleton to Mr. Turpin, January 22, 1859.
Mr. Cass to same, February 7, 1859.

Mr. Turpin to Mr. Cass, (inclosure,) February 8, 1859.
Mr. Appleton to Mr. Sanford, March 4, 1859.

Mr. Sanford to Mr. Appleton, April 8, 1859:

Mr. Sanford to Mr. Cass, October 17, 1859.

Mr..Cass to Mr. Sanford, October 22, 1859.

AVES ISLAND. 5

Messrs. Sampson & Tappan and Shelton to Mr. Marcy.

Boston, January 15, 1855.

Sir: The undersigned, merchants of Boston, beg to call your atten-
tion to an outrage which seems to us unprecedented, committed upon
our rights by the government of Venezuela.

The circumstances are as follows: In the month of March last, 1854,
the undersigned fitted out the brig J. R. Dow, Captain N. P. Gibbs,
to search for guano deposits on the small island of Aves or Bird Island,
and others in that portion of the Caribbean sea. Captain Gibbs found
guano on Aves Island, and in June following was fitted out with a
force of twenty-five men, and took possession of the island in July,
fencing in that portion containing guano. Captain Gibbs has re-
mained in quiet possession of the island, although visited by English,
French, and Danish vessels of war, until about the 13th of December
last, he was visited by a small schooner under Venezuelan colors,
claiming to be a national vessel of the government of Venezuela, com-
manded by Domingo Dias, who styles himself Captain de Navio, and
second in command of the naval force of the government of Venezuela.
This officer claimed the island in the name of his government, and
landed troops with arms, and took possession of the island, hoisted the
flag of Venezuela, and notified Captain Gibbs he could only remain on
sufferance until such time as they saw fit to eject him. About the
21st of December a second armed vessel of the Venezuelan govern-
ment called there and landed twenty more troops. They now hold
possession, and Captain Gibbs writes he may be ejected by force any
day. We address ourselves to you, sir, with the request that you will
lay the matter before the President, and in the name of the under-
signed solicit his aid, with that of the government of the United
States, to protect us in our rights so far as the government of Venezu-
ela is concerned, as that government has not a shadow of a title to
this island, for the following reasons: ;

First. Aves or Bird Island is in north latitude 15° 50’, and longi-

tude 63° 43’ west from Greenwich ; is a small barren island of only
about one mile in circumference ; has been known to exist for over 200
years, and never inhabited. It is at least 600 miles from the coast of
Venezuela; it is not over 90 to 100 miles from the British colony of
Dominica and the French colony of Guadaloupe.
_ Second. If Venezuela claims it as having belonged to Spain by pri-
ority of discovery, she must fail, as the Spanish colony of Puerto Rico
being only about one half the distance from it, or some 300 miles
nearer than Venezuela; and if any such claim were recognized, Spain,
and not Venezuela, would have it.

Third. We maintain that no nation has any title, as it has remained
uninhabited for 200 years, until we took possession and built domicils
for our laborers and fenced in what we claim as our possessions.

6 _ AVES ISLAND.

Fourth. We think we have good reasons for believing that the goy-
ernment of Venezuela has, for a consideration, undertaken to eject us,
to allow other parties to avail of the value of our discoveries under
the shadow of protection of that government, who are really irre-
sponsible as to any just pecuniary claims, and therefore indifferent
to them. The undersigned believe this to be a case where simple
justice requires the interference of this government to protect the inter-
ests of her citizens which are trampled upon in this outrageous manner
by a foreign power without shadow of right. They do not ask the
island to be protected as a national territory, but that the Venezuelan
government be made to relinquish a possession to which they can show
not even the semblance of a title.

All the foregoing is respectfully submitted, and the protection of
the government solicited. |
SAMPSON & TAPPAN.,
PHILO 8. SHELTON.
Hon. W. L. Marcy,

Secretary of State for the United States.

Messrs. Sampson & Tappan and Shelton to Mr. Marcy.

Boston, January 29, 1855.

Siz: Under date of 15th January current the undersigned addressed
you a representation of the aggression committed upon them by the
government of Venezuela, taking forcible possession of the Islas Aves,
or Bird Island, held by their agent and men under him in the employ
of the undersigned, now beg to inform you that their agents and men
have been forcibly ejected from the island by the force of Venezuela
sent for that purpose. The undersigned have suffered large losses in
consequence of this summary ejection, by the loss of their establish-
ment and appliances for loading guano, placed there at heavy expense,
and by false freights on various ships that have to return without car-
goes, and these losses are positive. Further, they consider themselves.
entitled to the sum of damages for the loss of the profit they could
have realized by collecting, shipping, and selling the guano on said
island, of which they have been so unjustifiably forced to relinquish
by Venezuela.

The undersigned inclose a statement of such damages, and implore
the aid of the executive department of government to exact the same
from the Venezuelan government, believing it to be just and reason-
able that they should pay the undersigned the damages they have sus-
tained by the illegal acts of said government.

SAMPSON & TAPPAN,
PHILO 8. SHELTON.
Hon. W. L. Marcy,
Secretary of State of the United States.

AVES ISLAND. qT

Boston, January 29, 1855,
8rr: The undersigned claim from the government of Venezuela for
damages in consequence of the forcible ejection from Islas Aves, or
Bird Island, of their agent and his men by an armed force from Vene-
guela acting under orders of that government.

For the guano on said island, estimated as a minimum at

25,000 tons; (probably 50,000 tons,) which, under the

‘management of the subscribers, would have produced a

net profit of $12 50 per ton, which on 25,000 tons is...... $312,500
For false freights on vessels under charter to load guano,

that this ejection prevented loading, whereby false freights

and damages have to be paid on several thousand tons

capacity of VGSBE STEAM fol cick. UUUE. WHOL SUaaaa andl odd EE 20,000
For loss in fixtures, launches, houses, wharves, &c. , which

- have cost the proprietors a large sum of money, 7 rendered

quite worthless by this interruption..................s.0eeeeee 8,500
$341,000
SAMPSON. & TAPPAN.
m PHILO S. SHELTON.

Hon. Wm. L. Marcy,
Secretary of State of the United States.

Mr. Marcy to Messrs. Sampson & Tappan and Philo S. Shelton.

DEPARTMENT OF STATE,
Washington, January 31, 1855.
GENTLEMEN: I have to acknowledge the receipt of your letter of the
29th instant, inclosing a statement of your claim against the govern-
ment of Venezuela for the alleged losses you have sustained in conse-
quence of the ejection of your agents and men from the Aves Islands.
This claim will, at the proper time, receive the attention of this de-
partment.
Iam, gentlemen, &c.,
W. L. MARCY.
Messrs. Sampson & Tappan anp Punto 8. SHELTON, Boston.

& iy y AVES ISLAND.

Mr. Shelton to Mr. Marcy, on Bird Island.

Wasuineton, D. C., February 26, 1855.

Sir: I present herewith copy of a license or permit (1) signed by
Domingo Dias, commander of the Venezuelan vessel of war sent to
take possession of Aves or Bird Island by that government.

This document styles the island as the ‘‘ Windward Bird Island,’’
thus showing that the pretext set up that they made a mistake and
took the wrong Bird Islands is a mere evasion. This license of tlie
Commander Dias says they may remain until the pleasure of the su-
preme government is known. This is on the 13th December; on the
24th or 25th (the vessel having gone back to Venezuela) a second ex-
pedition arrives bringing more troops. Sufficient time having elapsed
since the departure of the first vessel for Venezuela for her to arrive
and the second to be dispatched by order of government, showing con-
clusively the government were acting understandingly, this second
vessel communicated with St. Thomas, after landing the troops, and
on her return thence ordered our men to quit the island within twenty-
four hours, refusing to allow them to remove the buildings they had
erected, but took possession of them for their own residences; and the
same with regard to the wharf we had placed there which they required
for their use, only allowing us to take off our provisions on condition of
a part being given up to them.

There is no question that the act was deliberately done by the gov-
ernment of Venezuela. They fully understood what they were doing,
as they about the same time ejected from the Leeward Bird Island near
their own coast another party of men gathering guano there with whom
we had no connection.

It. is evident from subsequent developments the government of Vene-
zuela agreed to take the island and hold it for the benefit of a company
who had contracted with them to do so, and were to pay them a large
sum of money so soon as the arrangement was completed. ;

Prior to the taking of the island a Danish sloop-of-war came up
from St. Thomas and stated to our agent, Captain Gibbs, that the
Danish government had been urged to take the island, but they had
declined, and that he was bound to Venezuela to inform that govern-
ment that the Danish government would not claim it, and that they
should not object to Venezuéla’s doing so.

Captain Nickels, of the ship James N. Cooper, who arrived there
after Captain Gibbs and his men had been ejected, states that the offi-
cer in command informed him that the island had been taken by the
Venezuelan government at the instigation of the Venezuelan consul at
St. Thomas, and that no vessels would be allowed to load except those
bringing permits from the company who had contracted with that gov-
ernment.

All this shows clearly and conclusively that the Venezuelan govern-
ment acted with a perfect understanding as to what they were doing,
and that right or wrong they would take the island in consideration of
the large sum of money they were to receive.

AVES ISLAND. 9

We ask from our government that damages—and I hope they may
pe exemplary damages—should be exacted from the government of
Venezuela for this act of robbery. If the claim we have put is deemed
excessive, we are willing it should be somewhat modified; but we urge
upon this government the propriety of its protecting our rights by its
insisting upon indemnity being paid us in this case.

With much respect,
PHILO S. SHELTON,
Acting for self and others interested.
“Hon. W. L. Marcy.
Secretary of State.

(No. 1.)

Domingo Dias, capitan de navid, 2° jefe dela escuadra Venezolana y
comisionada por el gobierno supremo de la republica, para celar las
antillas deciertas que le pertenecen en el mar caribe; he veni do
convenir, siempre que mi gobierno lo aprueve,-.en que los SS. Charles
H. Lang, (agente por la compafiia Lang y Delano, de Boston,) y
Nathan P. Gibbs, (agente por la deSampson & Tappan y P.S. Shelton,
tambien de Boston,) 4 quienes he encontrado estraiendo el huano de
esta ista en que:

1°. Continuen cargando los tres buques que hay a la carga ;

2°. Que continuen cargandolo hta. tanto que llegue la compafia con
quien el gobierno ha hecho contrata, 6 que llegue a esta isla la apro-
bacion 6 desaprobacion del 8. gobierno ;

3°. Y nosotros Charles H. Lang y Nathan P. Gibbs nos compremet-
emos 4 prestar los aucilios que necesitare la guarnicion de esta ilsa ;

4°. Y al efecto ponemos nuestras pzas. de artilleria y armamento 4
las ordenes y bajo el pabellon Venezolano 4 quien pertenece la isla y ;
* 5°. Yo Domingo Dias, 2° jefe de la escuadra ordeno 4 los SS. com-
andantes de los buques de guerra que crusan en las antillas que respeten
esta convencion hta, tanto que el gobierno disponga otra cosa.

Ysla de Aves de Barlovento el trece de Diciembre de mil ochocientos

cincuenta y cuatro.
DOMINGO DIAS.

Mr. Marcy to Mr. Shelton.

DEPARTMENT OF STATE,
Washington, March 2, 1855.
Srr: I have to acknowledge the receipt of your letter of the 26th
ultimo, inclosing copy of a certain license granted by the commander
of the Venezuelan man-of-war at the Aves Islands, to the parties

10 AVES ISLAND.

therein named, to take guano from those islands. This paper will
receive proper attention in the consideration of the subject.
Iam, &c.,

W. L. MARCY.
Puito 8. Suetton, Esq., Washington.

Mr. French to Mr. Marcy.

Wasuineton, May 5, 1855.
Sir: Linclose a copy of the memorandum about the Aves Islands,
to which I referred during our interview yesterday.
With much respect,
HENRY F. FRENCH.
Hon. WitiraM L. Marcy,
Secretary of State.

March 17, 1835.—Her Majesty’s ship Race Horse landed men on
Aves Island. They found a party of Danes gathering eggs. The
Danes collect them twice a day, and sell them at St. Thomas.

A hut for egg collectors was found. A tomb was in the center of
the island. ‘‘The governor, a person at the head of a party of egg
collectors, having died, was buried there.’’

The form of the island, oval; length, about 830 paces; width, 116
paces. Can be seen only about six miles. Latitude, 15° 40! 56”.

No mention of any other occupants or visitors.

See the Nautical Magazine, vol. 7, p. 12, Library of Congress. —

See, also, Blunt’s American Coast Pilot, p. 476, ‘‘ Aves.’’

Mr. French to Mr. Marcy.

Wasuineton, D. C., May 12, 1855.
Sr: I send herewith evidence of the claim of Wheelwright & Cobb
for damages for the loss of the voyage of the brig Panola, by the ille-
gal conduct of an officer of the Venezuelan government at Aves Island.
It is stated in the English papers by the Hermann, just arrived at
New York, that the question of the title of the British government to
this island has recently been discussed in Parliament, and that it is
conceded that the British government has no right of sovereignty over

it, but may claim equal right with other nations to take the guano.

AVES ISLAND. 11

If this be so the right of our citizens is clear, and the only question

remaining is, whether our government can and will procure for them
compensation for their loss.
With much respect,
HENRY F. FRENCH,
Attorney for Wheelright & Cobb.
Hon. Wiiitam L. Marcy,
Secretary of State.

Boston, March 2, 1855.

Dear Sir: We take this method of informing you of a serious loss
which we have recently incurred through the occupation of Aves
Island, situated in the Caribbean sea, by the Venezuelan government,
who had, afew days previous to the arrival of our vessel at that island,
forced the occupants of the same, Messrs. Lang & Delano, of Boston,
or their representatives, to leave the island. That you may come toa
full understanding of the facts of the case, we beg leave to make the
following statement, and also present for your perusal several affida-
vits, marked severally A., B., C., D., duly executed by parties who
visited the aforementioned island as our agents in the prosecution of
the voyage to and from that place:

In November last we made an agreement with Messrs. Lang & De-
lano, of this city, for the purchase of a cargo of guano, to be delivered
alongside a vessel at the aforementioned Aves island. We accord-
ingly chartered a vessel, the brig Panola, of New York, com-
manded by Warren Wass, for a voyage to the said Aves Island,
there to take on board a full cargo of guano, to be brought to
Baltimore or Philadelphia. This vessel sailed upon the voyage afore-
‘said from this port, on the twenty-seventh day of November, 1854,
and as it appears from statements made by Captain Wass, also, our
agent on board, Mr. J. H. McClennen, and the first officer, and boy,
which you have herewith, upon reaching Aves Island they found the
same occupied by the Venezuelan government, the representative of
which informed our agent that his government had taken possession
and forced the former occupants of the said island to leave. This
officer in charge, however, agreed to furnish our agent a cargo of guano
upon the payment of a stipulated sum of money, whereupon our agent,
not being in possession of the requisite funds, proceeded with the ves-

sel to St. Thomas to procure the same, being fully assured by the said
officer in charge, that upon his return to the island with the required
amount the guano would be in readiness for immediate shipment.

However, after going to St. Thomas, procuring the money under
great disadvantage, and returning to the island with the same, the
guano was then refused our agent, “who tendered the stipulated amount
in gold. Our agent, captain, and crew were driven from the island
under repeated threats of violence at the hands of the occupants, so
that our vessel, after cruising in vain for some two and a half months,

”

12 AVES ISLAND.

was forced to return in ballast, after an unsuccessful and very expensive
eruise.

We may add that port charges, or rather anchorage dues, were
exacted of our agent by the officer in charge. .
. We have thus given you an outline of this unfortunate expedition,
but for the detail of all the incidents relating to the same, we would
respectfully ask your attention to the accompanying statements, duly
certified and executed.

The loss incurred by us in consequence of the course taken by the
Venezuelan government in occupying Aves Island as aforementioned,
1s a serious matter to us, amounting, in round numbers, to some fifteen
thousand dollars, and if we have a legal claim against that- govern-
ment, as we are constrained to believe, we trust you will be willing to
take the necessary steps in our behalf to enforce it.

Asking your early attention to this matter, we are, dear sir, very
respectfully, your obedient servants,

WHEELWRIGHT & COBB.
Hon. W. L. Marcy,
Secretary of State.

A further certificate, signed by the captain and mate of this vessel,
has already been forwarded and placed on file in the State Department.

as

New York, March, 1855..

I, Warren Wass, master and agent for the owners of the brig
Panola, of New York, certify that on the eighteenth day of November, |
A. D. 1854, I chartered said brig to Messrs. Wheelwright & Cobb,
merchants of Boston, for a voyage to the ‘‘Aves or Bird Island,”’ to
procure a cargo of guano, thence to Philadelphia or Baltimore, United
States of America. Said Wheelwright & Cobb put on said brig a
number of extra men to assist in loading said vessel, as also extra
provisions, tools, and implements for the same. They also sent on
board their agent, Mr. John H. McClennen, of said Boston, under
whose orders I was to act. We sailed from the port of Boston, ac-
companied by said McClennen and extra men, &c., in said brig, with
ballast, and proceeded on our voyage. We arrived at the ‘‘Aves
Island’ on the second day of January, A. D. 1855, and anchored. I
proceeded on shore with said Mr. McClennen, in order to procure a
cargo of guano, in accordance with a permit or order-on the agent of
Messrs. Lang & Delano, of Boston.

Upon getting on shore, found the island in possession of an armed
band of men, commanded by one Nicholas Peraro, who demanded of
us port charges, stating that the island had been constituted a port of
entry by authority of the Colombian or Venezuelan government. We
paid the said charges according to his demand. He further informed
us that Messrs. Lang & Delano’s agent and men had left the island
by orders of the above-named government a few days previous to our

AVES ISLAND. 13

arrival. In consideration of the circumstances, Mr. McClennen stipu-
lated with him for a full cargo of guano for the sum of $400, the same
to be paid him in gold on delivery of said cargo within reach of said
brig’s tackles.

He further agreed to collect the same (and we left our tools and im-
plements for that purpose) with his own men and at his own expense:
It was further stipulated that we should proceed to the island of St.
Thomas to procure the necessary funds, as we had not the amount on
board the vessel. We sailed for St. Thomas and procured the stipu-
lated amount and returned to the island and anchored as before.
Upon going on shore we learned, to our surprise, that nothing had
been done towards collecting the cargo. We then offered to collect it
with our own men, at our own expense, and pay the stipulated price.
He refused, and with many threats ordered us to get our vessel under
weigh and leave the island within the hour. This we did, and were
obliged to return to the United States, in ballast, via St. Thomas, at
which place we hoped to obtain a freight or charter, to save some
portion of the loss.

We arrived at St. Thomas, and found many vessels there, and no
freights to be had, neither charters, and consequently were obliged to
return to the United States as above, thereby totally defeating the
voyage, and entailing great loss and disappointment.

WARREN WASS.

Crry AND County or New York, ss:

Before me, A. B. Vanolinda, a public notary in and for said city
and county, personally came and appeared Warren Wass, who, being
by me duly sworn, doth depose and say that the annexed certificate by
him subscribed is correct and true in all and every particular.

[L. s.] In testimony whereof, I have hereunto set my hand and

‘+ affixed my seal of office, this first day of March, A. D. 1855.

A. B. VANOLINDA,
Notary Public.

New Yorx, March 1, 1855.
To whom it may concern:

I, John Wass, seaman on board the brig Panola, of New York,
Warren Wass master, on a voyage from Boston to the Aves or Bird
Island for a cargo of guano, thence to a port of discharge in the United
States, do hereby certify that I sailed on board said vessel on said
voyage. On arrival at the above-named island I was called upon to
act as interpreter between Mr. John H. McClennen, the agent or
supercargo of the brig, and Captain Wass and one Nicholas Peraro,
the officer in command of an armed band of Venezuelan soldiers, who
held possession of said island. I hereby certify that the statement

14 AVES ISLAND.

marked A, subscribed by Captain Wass, is true and correct in every
particular, the same having been this day read and exhibited to me.
JOHN WASS.

Witness: A. B. VANoLinpa.

City anp County oF New York, ss: "a

Before me, A. B. Vanolinda, a public notary in and for said city

and county, personally came and appeared John Wass, who, being by

me duly sworn, doth depose and say that the annexed certificate, by
him subscribed, is correct and true in every and all particulars.

(L. 8.] In testimony whereof, I have hereunto set my hand and

‘“4 affixed my seal of office, this first day of March, A. D. 1855.
A. B. VANOLINDA,

Notary Public.

—————

C.

To whom it may concern :

I, Luther White, of the city of Boston and Commonwealth of Massa-
chusetts, mariner, certify that on the twenty-seventh day of November,
A.D. 1854, I sailed from said Boston in the brig Panola as mate,
on her voyage from that port to the ‘‘Aves’’ or Bird Island, for a
cargo of guano, and thence to the United States via St. Thomas, West
Indies, and that the statements of Mr. John H. McClennan, marked
D., also of Captain Warren Wass, master of said brig Panola,
marked A., also of John Wass, seaman on board said brig, marked
B., are true and correct in every particular, the same having been in-

spected by me personally. a
LUTHER WHITE
Mate of brig Panola.

ComMMONWEALTH OF MASSACHUSETTS, bap
Suffolk County, i
Then personally appeared the above named Luther White, and made
oath that the above statement signed by him is true.

Before me,
GEORGE MORRILL,
Justice of the Peace.
Marcu 2, 1855.

D.

Boston, March 2, 1855.

I, Jonn H. McCiewnen, of the city of Boston and Commonwealth
of Massachusetts, merchant, certify that on the twenty-seventh day
of November, A. D. 1854, I sailed from the said city of Boston in the brig
Panola of New York, Warren Wass, master, as the authorized agent of
Messrs. Wheelwright & Cobb, of said Boston, merchants, bound to

AVES ISLAND. 15

the Aves or Bird Island, situated in latitude 15° 39’, longitude 63° 38’,
for the purpose of obtaining a cargo of guano. [I arrived at said Aves
Island, with said brig Panola, on the second day of January, A. D.
1855, having a permit or order for a full cargo of guano in my posses-
sion, signed by Messrs. Lang & Delano, of said Boston, merchants,
who had legal possession of said island at the date of said permit, and
date of my departure from the United States on said voyage. On my
arrival at Aves Island, and the vessel anchored, I proceeded on shore,
accompanied by Captain Wass, above named, for the purpose of pre-
senting the aforesaid order or permit, and obtaining a cargo in ac-
cordance with my instructions, and of said order or permit, and found
that the said Aves Island had, a few days previously, been taken
forcible possession of and held by an armed band of Venezuelans,
under authority of the Colombian or Venezuelan government, and that
the agent and men employed by Messrs. Lang & Delano had been
driven by them from the Island, and by orders from the said Colom-
bian or Venezuelan government. Having an interpreter on board
the said brig Panola, I entered into communication with Nicholas
Peraro, the authorized agent of said government, informing him of
the circumstances under which I had come to the Aves Island. He
declined to attend to my case until I had first acceded to a demand
made by him for port charges, which he alleged was due his govern-
ment, as he had constituted it a port of entry under their instructions.
I acceded to his demand by paying him the sum required; when he
offered to collect a full cargo of guano and deliver the same within
reach of the vessel’s tackles, provided I would pay him the sum of
four hundred dollars in doubloons, and to deliver the said cargo at
once, on payment of the above sum. Not having the specie on board
the vessel, we stipulated an agreement between us to the effect that I
should sail with said brig Panola for the Island of St. Thomas, there
to obtain said funds and return to said Aves Island. It was further
agreed that I should furthermore loan him sundry tools and imple-
ments to collect said cargo of guano, and he agreed to collect and pile
the same on the beach during my absence. I delivered him the tools
and sailed for St. Thomas on the third day of January, A. D. 1855,
and arrived on the 7th day of the said month. On my arrival, I ne-
gotiated a bill of exchange on Boston, United States, procured the
necessary funds and sailed again for the Aves Island. We arrived
at said island the second time on the 10th of January, A. D. 1855;
anchored the vessel and proceeded on shore with the said specie to
pay for the aforesaid cargo. To my surprise he disclaimed any inten-
tion of fulfilling his agreement, and would not allow me to take cargo
myself with my own men, although I offered to load the vessel myself,
without expense or trouble to him; and also agreed to pay him
the stipulated price for the cargo, but with many threats to sink the
vessel by pointing a loaded cannon, as she lay at anchor, and threaten-
ing to take our lives if we did not get under weigh and leave the island
within the hour, he drove us from the island, in consequence of which
we were obliged to return to the United States in ballast. I would also
certify that we had a number of extra men on board the said brig

16 AVES ISLAND,

Panola, with extra provisions and equipments for said voyage, which
- very materially increased our loss by the voyage.

We arrived at Wilmington, North Carolina, on the 1st day of Feb-
ruary, A. D. 1855, having been absent on the voyage sixty-seven days,
and the objects of which totally defeated, having gone out and returned
in ballast, thereby entailing a severe damage to the charterers.

All of which is respectfully submitted. :

JOHN H. McCLENNEN.

CoMMONWEALTH OF MASSACHUSETTS, ;
SS .
; Suffolk County,

Then personally appeared the above named John H. McClennen,
and made oath that the above statement signed by him is true.

Before me,
GEORGE MORRILL,
Justice of the Peace.
Marca 2, 1855.

Mr. Shelton to Mr. Marcy.

Boston, May 14, 1855.

Str: Insomuch as we remain entirely unacquainted in respect to
any decisive action having been taken by the executive branch of the
federal government of the United States towards obtaining just and
speedy reparation from the State of Venezuela, for the wrongs and
injuries received by us from its authorities, we deem it not improper
to again solicit your early attention, and, through you, the notice of
his excellency, President Pierce, to the facts and principles of interna-
tional law and justice upon which our claim for full indemnity and for
effectual measures, if need be by force, to obtain that redress, is founded.
The honor and dignity and rights of our country are not, we know, in
our keeping. If it was our privilege, it is not our duty, to make any
suggestions on Be topics to the Chief Magistrate of the United States,
or to you, with whom is placed that high trust, except in so far as our
individual and personal rights as citizens are directly involved. And,
possessed of that confidence, the declarations of the President on
assuming the responsibilities of his exalted station were so well calcu-
lated to inspire, as well as the evidences since exhibited, in more than
one instance, of his firm resolution, and that of yourself, to ‘‘submit
to nothing that is wrong,’’ we have no motive for thrusting our opinion
on that subject before you, either in the form of counsel or admonition.
We desire to confine ourselves to the taking care of ‘‘ our own afiairs,’’
and this is, in the jirst place, what we would respectfully urge upon
our government it should constrain the Venezuelan government to do.
Our government will not, in acceding to this request, ‘‘ ask anything
that is not clearly right;’’ for such is the duty of nations as well as
individuals. And, in the second place, we desire that our government

~

. AVES ISLAND. 17

should require of Venezuela full and prompt reparation for the wrongs
and injuries done to us, and of which we have heretofore complained.
_And now, sir, we would respectfully ask you to reperuse the letter
and remonstrance of the undersigned, addressed to you officially, dated
Boston, January 15, 1855, on the files of your department.
_ That letter, you will perceive, states the principal facts in relation.
to the discovery in March, 1854, and the taking peaceable possession
of, and the actual occupation in a few weeks subsequently by our
agents, in merchant vessels of the United States, bearing its flag, witha
company of seamen and laborers, of the Isla de Aves, or ‘‘ Bird Island.’’
These islands, as they are called, are merely barren rocks, situated in
the Caribbean sea, in about 15° 40’ north latitude, and 63° 38! west
longitude from Greenwich. The principal isle (SHEeLron’s Istx) is
about a mile in circumference; had not in March, 1854, any soil, or
land, or houses, or trees, or herbage of any kind upon it, and was
never inhabited by man before our agents landed on it. The others
near it are still smaller. Our agents discovered a deposit of guano on
the principal isle, before then unknown, and the presence of which
gives the chief, if not sole, value to the island. On being informed of
this, we fitted out from the United States, for the express object of
procuring cargoes of that article, as merchandise, several vessels with
extra crews and laborers, and at no trifling expense. We made con-
tracts for the supply of that article at prices which would, if we could
have carried them out, yielded us a handsome profit. We shipped
materials for houses, and provisions thither for our laborers; and we
provided barrows, implements, and tools, launches and other conve-
niences, wherewith to gather and lade the vessels with it. We sent
materials for wharves and landing places to be erected on the edge of
the rock, so that our vessels could come near to it. We intended to
establish there a permanent settlement, and purposed the transporta-
tion of soil thither by our vessels on their outward voyages from the
United States, wherewith to make gardens, and plant shrubs and
trees. ;

Who, we ask, had any right to complain of this, much less to pro-
hibit us from so doing; or after our arrival there and commencement
of operations and continuance thereof for several months, to eject us
by force from the island, seize our property carried thither, and forbid
our return? Doubtless the existence of this desolate rock has been
known for nearly two centuries, and perhaps longer. It is not im-
probable that French, English, Danish, Dutch, Spanish, and Portu-
guese and American merchantmen, and also men-of-war, likewise the
noted pirates that formerly infested those parts, have often visited
Shelton’s Isle; but itis not believed any government or individuals
ever thought of it as a possession, and certainly none ever occupied it
till last year, when we planted the stars and stripes upon it.
Mere discovery, unless it is followed by occupation, confers no right
upon a government or upon an individual, either to an island or to a
barren rock in the ocean, or to the shore of a continent, whether inhab-
ited by idolatrous savages or utterly uninhabited. The merely seeing
an island or other land, or a rock at sea, though before unknown, and
landing thereon, and leaving it again,—in other words, mere tempo-

Ex. Doe. 10 2

18 AVES ISLAND.

rary occupation, without the animus revertendi, cannot confer any
right, Discovery must be followed by occupation. And constructive
possession will not answer for a series of years, much less for a cen-
tury and a half, or two centuries after discovery! It is not contended
that actual and uninterruptedly continued occupation or possession de
facto from the time of the first discovery is necessary, and it is conceded
that reasonable allowance may be made. We insist, however, that the
law is, that positive possession, pedis possessio, or ‘‘ actual occupation,’’
must be had at some period, and there must be some acts of ownership
exercised, or at least asserted, or ‘‘continental claim’’ of ownership
and jurisdiction made, or a general acknowledgment of right by other .
nations, in order to confer any right of dominion over a newly-discoy- .
ered island upon the government of the first discoverer. All the legal
authorities, we are told, show this to be the true principle. Our
counsel has furnished us with the following references, which you can
appreciate better than we, for we are no lawyers, though we can per-
ceive they are entirely consistent with common sense: Grotius, Jur.
Bel. ac Pac. L. 2., chap. 4. Puffendorff, Jur. Nat. et Gen. L. 4, ¢.
12, and also page 413, and Jur. Nat., vol. 1, c. 1, § 51. Vattel,
Droit des gens, vol. 1, lib. 2, c. 11, and p. 99, ¢. 18, § 207 of transla-
tion. Rutherford, Int. Nat. Law, vol. 1, ¢. 8, vol: 2, e. 9, § 3, 6.
Klaber, § 126. Savigny, Das Recht des Besitzes, § 1-9, &c. Dr.
Phillimore, Int. Law, vol. 1, pp. 213, 236, 237, 238, 242, 247, 263,
ut passim. 8 Wheat. Rep. 8. C. U.8. 571, 605, Johnson vs. McIntosh.
5 Robinson’s Ad. ep., (Lord Stowell,) p.385; The Anna. Wheat.,
Elm. Int. Law, c. 4, § 5, &., p. 209, et seg. to 237, &c.*
Admitting Spain, the antecessor of Venezuela, first discovered the
existence of Shelton’s Isle, never having taken formal possession of it,
never having exercised any acts of ownership of any kind in relation
to it, the claim of title by Venezuela is preposterous. The idea of her
claiming it on the score of its being contiguous or appurtenant to her
shores, is simply ridiculous. Whilst it is conceded that it is not
necessary upon the discovery of land before unknown to the civilized
world, in order to acquire possession, that all parts of the newly dis-
covered region should be actually occupied, and that the occupation of
the principal and commanding or controlling points will suffice as to

*In these authorities the jus usucapio is treated of fully. Possession by intervals signifies
nothing. Non-possession for a long time destroys right, though without any opposing ap-
propriation and occupation. So, if the thing is deserted. Must be actual corporeal retention
and intention to retain. Discovery gives inchoate title merely. Discovery and settlement are
necessary ingredients of a title by occupation. Original acquisition must be followed by
possession—that is, use and settlement are essential ingredients of that occupation necessary
to constitute a valid title to national acquisitions. Islands formed by accretions near a river
belong to the country from. which the river flows. Not to be called ‘“‘no man’s land,”’ like
islands far in the sea, not possessing soil of sufficient consistency or in sufficient quantity to
support the purposes of life and uninhabited, and only resorted to for purposes of shooting
or fishing, or for taking bird’s nests, and the like. If islands are near the coast ownership
may be claimed upon the principle of alluvium and increments, or upon the principle of
contiguity and being appurtenant and geographically dependent, and actual and continual
possession or occupation of such island is not necessary to give title. So the discovery,
conquest, and colonization or settlement, or long and uninterrupted possession gives title,
because of the natural utility tending to promote the general welfare of mankind. Heathen
barbarians were formerly held by popes and princes to be lawful prey and spoil of Christian
conquerors. Alexander VI, in 1493, allotted by a Bull all the Americas to Spain and
Portugal ; and Henry VII, of England, by patent gave to Cabot a commission to discover,

AVES ISLAND. 19

adjacent, contiguous, and appurtenant country, naturally tributary to
them, yet no respectable authority can be found to warrant Venezuela,
as the successor of any Spanish discoverers, in laying claim to a barren
rock at least 500 miles from any part of her coasts, and totally dissev-
ered and disconnected from them. Why, it is much nearer the Island
of Dominica and Guadaloupe; and, in fact, Puerto Rico is but half as
far from Isla Aves as is the Venezuelan coast. How the authorities
of Venezuela came to put forth the claim they have, and enforce it as
they did against us, can only be accounted for on the supposition that
they were deceived and misled by third parties seeking to make a
speculation for themselves in the premises regardless of law or right.
It is out of the question to admit that a State may, after discovery
by her flag, or the flag of her antecessors, abandon such island, neglect
to use it for any purpose, cultivation, fishing, hunting, or wooding,
leave it derelict for a series of years; nay, even since landing on it, if
they ever did land on it, and then when other people, with greater
enterprise, seek to use it for beneficial purposes, drag forth from the
oblivion of centuries the dormant claim of discovery. Such claim is
not merely dormant, it is peaD! specially when such claim is urged
on the flimsy ground of constructive right merely, as an appurtenance
to main land separated by the ocean from it, and 500 miles distant ;
should it be disregarded? [Vide authorities before cited: ‘‘ Facility
with which adjacent vacant land may be reached ii a short time, and
settled and cultivated and defended, or as compared with the proba-
bility and facility of the same things from another quarter,’’ is an
important consideration. The Russian right to the possession of the
desolate country north of Sitka, uncontested and peaceful for many
years, is founded on this principle. An island ‘‘must be a natural
appendage to the coast,’’ ‘‘ geographically appurtenant and tributary ’’
to it, to justify the possession of the coast ‘‘ reaching it,’’ and making
such possessory title valid without ‘‘actual occupation of such island.’’]
We learn that England, as usual in such cases, has put in her claim
to this rock. Yhat was to be expected. She is famous, and always
was, for ‘‘finding things,’’ and is doubtless well sustained with all
sorts of muniments of title and proofs of title, made exactly to suit the
case. As there never has been an Indian on the Isla de Aves out of which

subdue, and occupy and possess lands in America, and the right of the Indian was held to
be subordinate to that of the Christian discoverers and occupiers. The possession necessary
to be exercised is personal action on the land and excluding action of others, full of perma-
nent control or power over it, and intention of appropriation to claimant’s own use; all this
must be united to constitute possession. Occupation is pedis possessio, with power of ex-
cluding others at pleasure; it is de facto, and not constructive possession, that is necessary.
Intent to occupy and hold must be manifested by outward and external acts of a positive
character. By the common consent of nations these acts are, in discovered countries, use
and settlement. Continuous use is an indispensable element of occupation. The possession
must be real, must form settlement, practical use. It must not be unreasonably delayed.
Monuments, hoisting flags, making land-marks, firing salutes, and erecting crosses, and the
like, are empty ceremonies if unaccompanied by continued occupation. So are mere surveys.
On the voluntary desertion or abandonment of first discoverers of lands, and especially of a
barren and uninhabited rock in the high seas, the same becomes thereby derelict, or ‘no
man’s land,”’ and the next discoverer may oceupy and hold it. The right to Nootka Sound,
in dispute Jast century between England and Spain, is an example of this, and there are
many others.

The terms employed in this note are extracted from authorities cited in the text and others

employed in them.

20 AVES ISLAND.

to manufacture a king for them, and as, in fact, nothing ever lived
there until 1854, except aquatic birds, we are informed that she founded
her- claim on the assertion that an officer of the British navy once made
a survey of it. This kind of title might as well be preferred by the
British to about half of our uninhabited Florida Keys, and to the
Alacranes in the Gulf of Mexico; for she has been surveying in that
region for a quarter of a century past. And she may likewise just as
well claim several islands off of the coast of California and in the Gulf
of California on the same ground. It would not be at all surprising
if she proved that the red cross of St. George was formally raised on
Sueuton’s Istz, and loyally saluted by a salvo of cannon and small
arms, drinking the health of its sovereign, and singing ‘‘ Britannia.
rules the waves,’’ &c., as acts of sovereignty. The Dutch, we learn,
have also put forth their claim, and have, since our ejection, driven
Venezuela off by force, or the latter has allowed and admitted their
right; which the Danish, it seems, had conceded Venezuela possessed.
Spain, doubtless, will claim also, and Portugal and Denmark, as con-
tiguous to some place or other; and it is quite likely France, if not
alone, in partnership with England, will set up like pretensions, as
their alliance, it is said, extends over all creation, and the guardian-
ship of all creation, and the cultivation of ‘‘ideas’’ over all creation.
We have one answer to all these ‘‘people,’’ and that is, whoever
discovered Isla de*Aves, or SHELTON’s Istx, 200 or 250 years ago, is of no
consequence; forasmuch as no positive acts of ownership, no exercise
of sovereignty, no possession or occupation, actual or constructive, was
ever had or attempted by any body, Spanish or Dutch, Portuguese,
French, Venezuelan, or English, or Yankees, till 1854; and when we
took possession and occupied it, it was uninhabited and vacant, aban-
doned and derelict. It is too late for any of these people to hunt up
old papers and surveys, and the like, and to trace back to history to
discover who first discovered it. These things are out of date, and do
not deserve consideration in this practical age—the age that Napoleon
III calls the age of ‘‘¢deas,’’ and that we call the ‘‘ age of progress.”’
There is no land, nor earth, nor, properly speaking, soil, on Shel-
ton’s Isle. It, and the trifling isles near it, are, as before said, barren,
desolate, naked, vacant rocks, elevated but a few feet above the ocean.
The survey we had made of it in 1854, a copy of which we send you,
we will vouch is superior to the alleged British survey, manufactured,
we doubt not, since. Until we discovered guano there, no possible in-
ducement or motive could exist for any individual to occupy it. It is
most desirable that this country should possess this island on account
of the great advantage to our agriculturists of the Atlantic States, given
by that best of all newly discovered fertilizers, of which there is a de-
posit on it, and it is due to that branch of our industry that some exer-
tions should be made to prevent the odious monopolies existing on the
other side of this continent in that article, and which it is sought to
perpetuate there, and also here, at the expense of our farmers. Hxcept
upon the Alacranes, on the gulf coast of Yucatan, Shelton’s Isle is the
first discovery on the eastern side of the continent having such deposit.
It is not doubted there are other barren and desolate and derelict rocks
containing it (of as good, if not better, quality than the Pacific guano,

AVES ISLAND. _ 21

and that can be furnished to our agriculturists at one third the cost of
the other) to be found in the American seas, south of 25° north lati-
tude. Acquiescence, without remonstrance and effective action in the
proceedings that have been had in this case, may establish a precedent
highly injurious to our country in this respect.

The largest rock, (SHELTON’s Istz,) possibly, may be made, with some
outlay, important to our commerce passing near it, by erecting a light-
house upon it, by constructing a martello tower for defense there, boring
deep wells to obtain water, and by having deposits of coal there for
our steamers in the merchant service and in the Navy. But in all
this we are not directly and immediately interested ; nor in the fact
that it would constitute an admirable outpost or picket guard for our
interests, present and ultimate, in all that region.

We look to the deposit of guano as the only present means of ren-
dering the island valuable to us as individuals, by bringing to market
for our farmers at a small advance on cost this rich fertilizer; and we
are entirely willing to transfer all our rights to our government,
(reserving the guano,) without charge or compensation, and if the goy-
ernment decides that said course is desirable, we will do so promptly.
We have heard that some exceedingly squeamish and strict construc-
tionists say that the federal government has not the ‘‘ faculty of acqui-
sition’ of a foreign country, by the discovery and occupation of its
citizens under its flag, because the case is not in terms provided for in
the federal Constitution. And so, too, by purchase, or a free transfer,
such as we propose; and particularly, that the Executive cannot so
act without a law of Congress authorizing it, or the concurrence or
direction of Congress otherwise given. So, at the commencement
of this century, was it objected that the executive and legislative
branches together had no power to annex Louisiana, and yet the most
important function of the federal government from that day to this
has been to provide and regulate annexation by purchase, by conquest
in open war, and otherwise. And the Executive has more than once
arranged for naval depots and yards, &c., at Port Mahon, in Minorca,
and Spezzia, in Sardinia, and elsewhere, at different times, and the
concurrence of Congress has only been asked to furnish the necessary
funds. In this case, as no money is requisite, no such concurrence is
necessary. We presume, therefore, there can be no difficulty on this
point. Ifthe United States has no faculty of acquisition of newly dis-
covered and primarily possessed and occupied islands, this attribute of
sovereignty must revert to the State of our allegiance, Massachusetts,
or to ourselves. This sovereignty cannot be in abeyance, and it cannot
die. It exists somewhere, and if not delegated to the federal govern-
ment, it is ‘‘reserved to the States’ and to ‘‘the people.’ (Art. X
Fed. Const. Amend.

Our first letter to you, dated January 15, 1855, above mentioned,
states to you the facts as to our discovery and taking possession, in
the spring of 1854, of the chief isle, and of our quiet, peaceful, and
undisturbed possession of it for several months, and until the middle
of December, 1854, with our workmen, and that we had several vessels
there lading guano.

On December 13, 1854, a personage styling himself Don Domingo

22 AVES ISLAND,

Dias, ‘‘capitan de navio, second jefe de la esquadra Venezuela,’’ came
there in a schooner of the Venezuela navy, armed and equipped and
manned, and having also regular troops of that State on board, and
claimed the isles as belonging to Venezuela, stating that he acted by
the express authority and command of the government of that power,
and notifying our seamen and laborers of his commission, and that the
vessel under his command was a government vessel. He landed some
troops, and hoisted and saluted the Venezuelan flag, (upon the isle,)
and warned us that we could not stay any longer than hesaw fit. He
then went to Laguira to procure more troops, and on December 24th
another Venezuelan vessel arrived and landed more troops, and in a
short time we were informed that we must leave the isle within twenty-
four hours, or they would drive us away by the soldiery. During the
time that had elapsed from their first arrival, our workmen had been
prevented from progressing advantageously in the lading of the guano,”
and now a prohibition was not only backed by the presence of an armed
force and threats of personal violence to our men therefrom, and
demonstrations actually made, but they were dispossessed of the mate-,
rials, tools, &c., sent thither, and their houses taken from them by
the soldiers by force.

The said Dias, on December 13, had drawn up and signed a paper
in Spanish, (on file in your department,) and which our agent, Captain
Gibbs, was constrained under the circumstances to take, and which
Dias styled his ‘‘permit!”’

In conformity with a peremptory order, doubtless intended when
Dias issued that paper, our employés and our vessels left the island
and returned to the United States. Charges were exacted by Captain
Dias of some of the American vessels at the isles. You will perceive
from documents on file at the department, that other Boston merchants
have preferred claims somewhat analagous to ours, but in relation
thereto it is not necessary, and indeed it would not be proper, for us in
this communication to say one word. Every man should attend to his
own business only, and not interfere with that of others.

We invoked, in the letter above mentioned, the protection of the
government of ‘the United States, and its interposition to obtain just
redress for us.

In addition to the letter of January 15, 1855, on the 29th of the same
month we addressed youagain. That letter is on file, and we respect-
fully solicit your reperusal of it. We refer in it to our first letter,
and respectfully reiterate the request it makes for protection and
redress. We state the heavy losses that we had sustained by the ille-
gal interference in our legitimate business and the outrage on our
rights, and we give to you ‘the particulars of our losses, and we ask
their prosecution by the government against Venezuela. We had
some reasons to hope that a vessel of war “ot the United States would
have been dispatched with the demand for redress.

On February 26, 1855, we wrote to you a third time, reiterating
like requests, and communicated additional information to that before
given to you. We stated that Captain Dias, after his first visit to
Shelton’s Isle, and before his command to us to quit, had visited the
Danish island of St. Thomas and had communications with the shore,

AVES ISLAND. 23

and that information had been received from a Danish man-of-war
that came from St. Thomas, that the Danish authorities had been
approached by certain parties to procure them to claim the isle and
drive us off, which suggestion was not favorably received by the Danish
authorities, and the man-of-war in question was sent to Venezuela
with information that they (the said authorities) would not interpose
any objection to the government of Venezuela claiming the isle, thus
showing that the Venezuelan authorities knew they had no right, and
that their interference was instigated by parties wishing to speculate
upon the government, or with it, in respect of the guano. Some of
these parties are indicated in the last letter, amongst them the Vene-
zuelan consul at St. Thomas. Another and an important fact indicated
in the last letter, of February 26, is that between Dias’s first visit
and the last ample time had elapsed for the Venezuelan government to
‘have revoked a hasty or mistaken order, and that, therefore, the order
for expulsion, as to Venezuela, was deliberate and well weighed. It
cannot be excused or palliated on the ground of mistake, or inadvert-
ance, or haste. Right or wrong, her course was adopted knowingly,
and if procured to be done by subsidiary means, it. only heightens the
enormity of the outrage.

We have also made personal applications, since the last mentioned
letter, to your department, through friends, for some action.

We regret to be informed no vessel of war of the United States has,
as we hoped and expected, been sent to Venezuela with instructions to
our able and patriotic minister there to insist upon justice being done
to us, by promptly paying us our just damages. We hope this will
yet be done, and as speedily as practicable. It seems to us that it
would not involve any great expense or trouble to send one of the ves-
sels composing the squadron of Commodore McCauley, off Cuba, to
Venezuela for the purpose indicated. We presume that by this time
the vessel might be spared from the squadron sent to Cuba, to resist
the pretended right set up by the Spaniards to discover whether a ves-
sel rightfully bears our flag or not, by firing towards her to bring her
to and by visiting her, and that it is quite as important that the actual
outrage on the American flag, known to be rightfully borne, in the
case of our vessels, perpetrated five months since, should be atoned for.

It has been contended that we admitted the right of the Venezuelan
government to Shelton’s Isle, and the right of Captain Dias to drive us
off ; in other words, that we were trespassers ; and this, too, in the paper
given by Dias to Captain Gibbs. How perfectly idle and worse than
idle is such pretense. We might have resisted Dias and his soldiers
with some loss of human life on both sides; we ought, perhaps, to have
done so. We believe we could easily have chastised and captured his
whole force, vessel and soldiers included, if we had resorted to arms
and bloodshed; but we preferred relying on the protection of our
country. Wesubmitted to Dias’s commands, because he was an officer
of a sister American republic with whom our country was at peace, and
was acting by its authority with its public force. We submit, sir, to
you and the President that our forbearance was commendable. The
orders and conduct of Captain Dias were unnecessarily harsh. Our
tools and implements, materials and provisions, were seized in part by

24 AVES ISLAND.

his soldiers, and our houses were taken from our workmen. The loss
sustained thereby amounts to many thousand dollars. We were pre-
vented from lading guano prepared to put on board our ship, and con-
strained, by military force, to abandon the isle with no cargoes for some
vessels and with but part cargoes for others. Our heavy contracts for
furnishing guano are by consequence unfulfilled, and heavy damages
incurred by us. The wages of our numerous workmen, who were
rendered valueless to us by his illegal and unwarranted interference,
reach, in the aggregate, a large sum. Our whole outlay for the business
is a dead loss. We have had to pay for false freights and demurrage
and damage, and besides all this, the consequences directly resulting
to us from this outrage have been such as can readily be anticipated by -
any commercial man. They are embarrassments, and well nigh ruin
unless redress is promptly afforded us. We solicit your consideration
of all this, and trust it may induce to immediate action in our behalf. °
How can Venezuela justify her course in the face of her acts, seeking
the Danish authorities of St. Thomas to interfere, thus admitting she
had no right? Howcan she have the face to do so since her relinquish-
ment of the isle to the Dutch? Suppose the Dutch have a title, or the
English, or French, or Spanish, or Portuguese; can she, a tort feasor,
set up any title in them in defense of her tortious acts towards us?
And now, sir, we trust you will not regard it as unreasonable for us _
to ask that you will, besides sending a United States vessel of war to
Venezuela, send another to convoy such vessels as we may desire to
dispatch to Shelton’s Isle for guano, and resume the lawful possession
from which we were forcibly ousted; protect us in our rights there.
And we respectfully ask to be informed if this request can be accorded.
If it cannot be, we then ask whether the federal government will allow
us, at our own expense, to fit out and arm vessels and man them with
sufficient force of armed men to enable us to recover our possession
against all who may contest it? The peremptory demand for redress
and its prompt enforcement we conceive, as American citizens, we are
entitled to. If any additional proofs are wanting of the facts we have
stated, we ask to be informed thereof at an early period, that we may
obtain them whilst the witnesses are at hand. And if the President
and yourself are of opinion that both convoy and protection and also
permission to fit out an armed expedition of ourselves as suggested
should be denied by our government, we respectfully request that you
will advise us thereof as soon as practicable, as we have reason to be-
lieve that we cannot make a profitable transfer of owr right to the isle
and. guano to some English and French merchants here and in New
York and Philadelphia who feel assured of the protection of their gov-
vernment. We are particularly solicitous that if the government of
- the United States has the slightest desire to obtain a transfer from us,
without cost, (we reserving the guano of Shelton’s Isle, &c.,) it should
be indicated to us as early as possible. The reasonableness of this re-
quest you can readily appreciate, as it regulates our decision upon the
disposition to foreigners to which we have referred, and in relation to
which we also particularly desire an answer from you. Unless speedy
action is had, the guano deposits on the Shelton’s Isle, worth, if prop-
erly managed, hundreds of thousands of dollars, will be abstracted,

.

AVES ISLAND. 25

and though we shall demand pay for every ton from the Venezuelan
government (that so illegally and wrongfully ejected us) as well as of
those guilty of the asportation, and intend likewise to claim damages
for the detention of the isle ¢ill 7¢ is restored, we know well that in
such matters ‘‘an ounce of prevention is worth a pound of cure.’’
Neither the Venezuelan nor Dutch government is celebrated as good
paymasters. The former has perhaps the excuse of inability; the
latter has not; and the case of Mr. Seely, of New York, in the Crown
Diamond case is by no means creditable to it. We trust that if justice
is earnestly insisted upon by our government in our case, it will be
yielded with less delay.
We are, very respectfully, your fellow citizens and obedient servants,
PHILO 8. SHELTON,
For self and others interested..
Hon. Wiiu1aM L. Marcy,
Secretary of State.

Mr, Marcy to Mr. Shelton.

DEPARTMENT OF STATE,
Washington, June 14, 1855.

Sir: I have to acknowledge the receipt, in due time, of your com-
munication of the 14th ultimo, in relation to the forcible ejectment of
your agents and laborers from the Aves Islands by the Venezuelan
government.

In that communication the following paragraph occurs:

«<The said Dias, on the 13th December, had drawn up and signed
a paper, in Spanish, (on file in your department,) which our agent,
Captain Gibbs, was constrained, under the circumstances, to take, and
which Dias styled his ‘‘permit.’’

Upon reference to your former correspondence upon this subject, I
find a letter from you of the 26th February, ultimo, transmitting a
‘‘copy of a license or permit, signed by Domingo Dias, commander of
the Venezuelan vessel of war sent to take possession of Aves or Bird
Island by that government; and the fourth article of this license or
permit is translated in the following words:

4th. And to that effect, we [Nathan P. Gibbs, agent of Philo 8.
Shelton et als., and Carles H. Lang, agent for Lang & Delano,]| place
our piece of artillery and armament at the orders and under the flag
of Venezuela, to whom the island belongs.’’

The department cannot discover any expression in your letter, trans-
mitting this agreement, which indicates that it was not a voluntary pro--
ceeding on the part of your agent, or that it was signed under duress;
it is further to be remarked that, in your letter of the 15th January,
setting forth the grounds of your claim against Venezuela, no refer-
ence is made to this agreement of the 13th December, although your
statement of evcnts is brought down to the 21st of that month; nor
does it appear: hat any allusion to this agreement is made in your
correspondence until it was transmitted on the 26th February, one

26 AVES ISLAND.

month after the instruction on the subject had been forwarded from
the department to the minister resident of the United States.

When, therefore, Mr. Hames, under that instruction, made an appli-
cation in your behalf, he was met at the first step by a reference to
this agreement, the original of which is in the hands of the Venezuelan
government.

You cannot fail to perceive how the fact of the existence of this docu-
ment complicates the business. .

It is my duty, therefore, to inform you, that before proceeding
further, the department must be satisfied that this agreement was
made under duress; for, if that should not be the fact, your failure to
disavow or protest against the concessions and acknowledgment ot |
your agent will, at least, seriously impair your claim to indemnifi-
cation.

Iam, sir, &c.,

W. L. MARCY.

Puito §. SHELTON, Esq.,

Boston.

Mr, Shelton to Mr. Marcy.

Boston, June 20, 1855.

Str: We acknowledge the honor of having on the 18th instant re-
ceived your official communication, dated the 14th instant. Before it
came to hand, we had written a communication to be sent to you,
soliciting a reply to the inquiries and requests made in ours of the 14th
May, which we withhold till we have answered yours, the receipt of
which is above noted.

The terms of your letter seem to indicate suspicions entertained by
you that do us great injustice. If so, we can only attribute them to
misconceptions of facts on your part, or the misrepresentations of others
interested adversely to our claims and rights; and also to the mistake
by you, quite apparent from your letter, of confounding together
matters essentially distinct and different from each other; as we are
quite confident you will be satisfied, after you have received our expla-
nation, and reéxamined carefully the papers on file in your depart-
ment.

In the jirst place, your letter intimates a suspicion, (and, indeed, it
well nigh assumes an accusation,) that in our two letters of the 15th
and 29th of January last, we purposely avoided or suppressed all refer-
ence or ‘‘allusion’’ to a paper which we designate as the ‘‘ Dias
license, permit, or notice,’’ dated December 13, 1854. The motive for
such suppression or purposed concealment (as we conceive inferable
from your letter) was supposed by you to be apprehension by us that
this paper might injuriously affect our claims and rights.

In reply to this we respectfully submit to you that, in order to sub-
ject us to such imputation, it is necessary that we should have had, at

e time those letters were written, some information of the existence of

AVES ISLAND. 2G

that paper. Your presumption that this was the fact, (as we conceive
apparent from your letter,) is an entire misconception.

When we wrote to you on the 15th and 29th January we had no
idea of any such paper, or of any other, referring to Shelton’s Isle, and
the transactions there having been signed or given by any person
there. Aware that our agent had not the shadow of authority from
us, express or implied, to do any act whatever destroying, relinquishing,
or in any degree impairing the rights he was deputed to maintain and
protect, and knowing that such an act, whatever its form, would be
utterly void and null, as a preposterous violation of those universal
principles of justice and law, that are respected in every country, and
that operate upon governments as well as individuals, we were not
stimulated by an apprehension of our rights and interests having been
jeoparded, or by any distrust of the fidelity of our agent to any special
inquiries in this regard. An eagerness or even a willingness (in the
absence of express impeachment by some person) to suspect our agent,
either on the score of fidelity or intelligence, which only could have
prompted such inquiry, would have been gratuitous, unbecoming, and
unwarrantable on our part.

We had learned when we wrote to you on the 15th of January that
Dias had intruded with an armed Venezuelan force upon the island
and taken possession of it, and had threatened the expulsion of our
employés and vessels from it, We stated that the Venezuelans, on
the 13th of December, after taking such forcible possession, had ‘‘ no-
tified’? Captain Gibbs that “‘he could only remain on sufferance until
such time as they saw fit to eect him ;’’ and that on the 21st they had
landed more troops, and that ‘‘ Captain Gibbs writes he may be ejected
by force any day.’’ Wecommunicated to you all that we had then
learned. Messrs. Lang and Delano, of this city, on the same day (as
we are informed,) also addressed you, giving similar information to
that contained in our letter, but more circumstantial in details; and
we learn it is also silent (for similar causes, it is presumed,) as to any
paper having been signed, or given by any person connected with the
transactions.

When we wrote to you on the 29th of January, we had been in-
formed that (as we anticipated in our letter of the 15th,) our agents
had been ‘‘unjustifiably forced to relinquish’’ the collecting and ship-
ping the guano on the island; and that all of our employés and ves-
sels had been driven away, and our implements and materials, houses,
wharf, &c., wrested from us by Dias and his Venezuelan soldiery.
This ‘‘ forcible ejection by an armed force,’’ as then characterized by
us, took place on the 28th of December, three days after the time, to
which you observe, ‘‘our statement of events is brought down,’’ in
our previous letter. We freely concede that these statements do not
appear entirely cousistent with that voluntary, unconstrained, peace-
ful and willing exodus from an abandonment of Shelton’s Isle by our
employes and vessels; and in pursuance of an unconstrained, ultro-
neous ‘‘agreement,’’ previously volunteered, with full knowledge by
our agent, expressly acknowledging the isle to ‘‘ belong’’ to Venezuela;
and in atonement for our illegal intrusion upon it, placing our pieces
of artillery and armament at the orders and under the flag of Venez-

28 ' AVES ISLAND.

uela, and engaging to ‘‘lend their aid’’ to the Venezuelan ‘‘ garrison’”’
at the isle; which, 1t seems from your letter, the Venezuelan officials
now represent the departure of our vessels and employés from the isle
to have been! But we aver our statements in those letters to be
strictly correct, and we can maintain them by full and incontestible
proof, and in addition to what is already on file in your department,
so soon as circumstances will enable us, we will transmit other testi-
mony, more in detail, and utterly refuting the ridiculous and fraudu-
lent defense thus set up by Venezuela. ’

But this has little bearing on the imputation against us as to an at-
tempted swppressio veri in our letters above referred to. We have
stated that we had not then any information as to the Dias ‘‘ permit or ©
notice.’’ In verification of this, we are entirely willing to submit to
your personal inspection all our correspondence with our agents and
others respecting the occurrences at Shelton’s Isle, though it contains
matters not pertinent to this case, or proper to be placed on the depart-
mental file. ,

It should be borne in mind that when we wrote these letters our
agents and employés, &c., had not yet returned to this city, and our
information was of course chiefly derived from our correspondence ;
and an inspection of it will satisfy you that all we had then received
in any respect material, was set forth fully in those letters, though
they do not profess to state minute occurrences, circumstantially and
in detail.

You will notice also in that of the 15th of January, we positively
deny, in no less than four separate clauses, that Venezuela has a shadow
of title to Shelton’s Isle, and give reasons for our denunciations of her
claim as unfounded ; and in both letters we remonstrate against her
tortious, forcible, and unjustifiable outrage in taking possession of the
isle, effected by an armed force, after we had been several months in
its peaceful occupation ; and in that, our first letter, we appeal to our
government to compel Venezuela to relinquish a possession to which
she had not a ‘‘ semblance of title.” We had not then heard of our
employés and vessels being driven off the isle on the 24th of December.

In that of the 29th of January, we represent that Dias and his
armed soldiery and naval force, followed up their wrongful intrusion
by threats and acts of hostility, by their forcible expulsion of our
agent and employés and vessels, and the taking of our houses and im-
plements, structures, &c., and by the use of our stores, &c., for all of
which we claim indemnity.

To presume that we were cognizant of the Dias license, permit, or
notice, and purposely avoided reference or allusion to it, and sought
to suppress it under an apprehension that peradventure it might pos-
sibly have a destructive effect, or might militate against or impair the
validity of our claims for indemnification, and our rights respecting
Shelton’s Isle, would be to write us down not only as being arrant
knaves, but also egregious asses; the former for adopting the dishonest
mean of the suppressio veri for any purpose, and the latter for resorting
to a shallow and useless artifice in a case in which speedy detection
and exposure was certain, and likewise for not perceiving that such

AVES ISLAND. 29

paper as that permit, or license, or notice, when brought forth, could
not justly complicate the business. |

We think it.ought rather to have been presumed that if we were
not devoid of common sense and common intelligence, and had any
knowledge of such paper, and anticipated the probability of our adver-
saries (the Venezuelan officials and the speculators combined with
them) seeking to urge it against us, we would have noticed it in the
outset, and sought to meet and overcome it. Ifit is fancied that we
may have hoped Dias kept no copy, or that if he did he may have lost
it, the case is not altered, insomuch as most men of moderate intel-
ligence are aware that the leges gentiwm contains no provisions relating
to such license, permit, or notice similar to those in the British and
American statutes of frauds and perjuries invalidating it, if not in
writing, and signed, d&c., and that therefore its efficacy could not
depend on the fact whether it was written and signed, or merely ver-
bal; and likewise, that if written, and either lost or mislaid or sup-
pressed, its contents could be established by parole testimony. No
sensible motive can therefore be reasonably assigned for such suppres-
ston by us, if we had known of its ever having been in existence, and
if, in fact, we purposely sought to surpress it in January last, what
could have induced us to transmit it to the department in February,
so soon as it came to our hands; and what induced Messrs. Lang and
Delano to insert in the Boston Evening Gazette, of the 24th of February,
a translation of the duplicate they had, and to send that publication
and a copy of the Spanish permit to you early in March?

The facts are proved by the papers in your files.

We shall hereafter, in another communication, suggest several dis-
tinct grounds, in addition to that already intimated, upon which we
insist that this ‘‘permit,’’ ‘‘license,’’ or ‘‘notice,’’ placed by us on
the files of your department, and to which your attention was called
by our letter of the 26th February, cannot possibly militate against or
impair in any degree the claims for indemnity, or the right to the isle we
are contending for, nor in any degree absolve our government from the
duty of promptly enforcing those claims, and maintaining those rights
in our behalf. Nay, sir, we hope to satisfy you that this paper, and
also the other (unlike this in respect to the signatures affixed to it) with
which the Venezuelian officials have met Mr. Hames, and the produc-
tion of it by those officials as the sole foundation of their claim, and as
the sole justification for their outrages, and especially when the circum-
stances connected with those papers, and attendant upon all their pro-
ceedings at Shelton’s Isle and since, are considered, so far from weak-
ening or impairing, do materially stRENGTHEN and FoRTIFY our claims
and rights; and as to our government, superadd to the incentive of pro-
tecting its citizens against violence and outrage, that of exposing, correct-
ing, and rebuking attempted rascality and fraud to sustain a trumped up
and baseless claim, preferred for the benefit of knavish speculators in
Venezuela and in the United States who have combined to wrong us.
At present, however, the foregoing suggestions have been made merely
to dispel your suspicions of unworthy conduct on our part, in reference’
to which we confess we feel as every honest man, jealous of everything

30 AVES ISLAND.

that appears to impeach his character for dealing fairly and above-
board with his fellow men, ought to feel.

It appears from your letter that it is inferred or considered at the
department that when we wrote our letter, dated Washington, Feb-
ruary 26, transmitting the Dias ‘‘permit,’’ or ‘‘license,’’ or ‘‘notice,”’
(styled by you ‘‘ this agreement,’ ’) we tacitly confirmed itand acquiesced
in it as an ‘‘agreement’’ by our agent, insomuch ‘‘as the department
cannot discover in that letter any expression indicating that it was not
a voluntary proceeding of your [our| agents, or that it was signed under
duress,’’and insomuch, also, as we ‘‘failed to disavow or pr otest against
the concession or acknowledgments of your [our] agents.”’

In answer to this we would observe, that 1 in inclosing that paper we.
designated it as a ‘‘license,’’ or ‘‘ permit,” signed by Domingo Dias,
commander, &c.; we could not properly style it ‘‘ an agreement.” tt
was not signed by any person but Dias. We transmitted the original
given to Captain Gibbs by Dias, having Dias’s signature affixed to it,
and no other. It would have been absurd to have impeached Dias’s
signature as having been ‘‘ signed under duress,’’ or for any other
cause; and the necessity or propriety of expressions indicating that
that paper was not a ‘‘ voluntary proceeding of our agents,’ or of
disavowing and protesting against any concessions or acknowledg-
ments of our agents therein or thereby made, is not yet discovered by
us. Indeed, as we think it is patent on the face of that paper that it
was exclusively a proceeding of Dias, and did not purport to be any-
thing else, and as our agents had not signed it or concurred in it, or
thereby and therein made any ‘‘concessions or acknowledgments
whatever,’’ such ‘‘ expressions,’’ ‘‘ disavowal,’’ and ‘‘ protest’’ would
have been simply ridiculous. We regarded the paper as an ex parte
production, drafted in Spanish by Dias solely, agreed to and signed
by himself alone, and according to his own fancy, as a sort of military
or naval proclamation or pronunciamento, or. bulletin of his acts and
doings and purposes, announcing also in military and nayal style the
terms he felt disposed in his generosity to extend to our agent and the
line of operations he proposed to pursue in respect of our employés and
property on the island. Mark! the first. that is heard in this case of
the other paper, asserted to be dated the same 13th of December at the
same ‘‘ Isla de Aves de Barlovento,’’ and to be signed by Gibbs as well as
by Dias, and also by C. H. Lang, is in your letter of the 14th instant,
which states that it has been produced by the Venezuelan officials to
meet Mr. Hames, in which, however, it is quite evident the two papers
are confounded as one and the same.

What we gather from your letter of the character of this paper,
called by you ‘‘ this agreement,’’ and from the account of a friend who
has examined the copy transmitted to your department, it appears to
be a regular military or naval capitulation, or surrender by Gibbs as
agent for Sampson & Tappan and Philo S. Shelton, of Boston, and by
C. H. Lang, as agent for Lang & Delano, of Boston, to Dias, of the
isle, and ali their artillery, armaments, &c., thereon, signed and exe-
cuted by all three—the agents in behalf of their respective ‘‘ compa-
nies,’’ and Dias in behalf of the ‘‘ supreme government of the republic
of Venezuela, as captain of its navy and second chief of its squadron,

AVES ISLAND. 31

and commissioner to watch over the desert Antilles of the Caribbean
sea,’’ in due form according to the Laws or war! And in this capitu-
lation, too, the Yankee troops are not only denied the honors of war,
but a sort of enlistment pro hoc vice of the captives under the flag of
the supreme government of the Venezuelan republic is stipulated and
agreed to! To that part of your letter stating the necessity of satisfy-
ing the department that ‘‘ this agreement’’ was ‘‘signed under duress,”’
and of the difficulty that will arise if ‘‘that should not be the fact,’’ we
may, we think, not impertinently suggest here, that as to this asserted
“‘aoreement’’: Venezuela is stopped from denying (whatever the fact
may be) that it was given under duress of the strongest character.
She cannot gainsay the acts of her commissioned officer acting under
her express orders. She has expressly adopted and confirmed the acts
of her military ‘‘commissioner,’’ set forth in this document by the |
production of it in her defense, and she must abide the consequences.
She cannot be permitted to deny its recitals, and they are irrefragably
conclusive against her on this point. An inspection of this paper is
alone all sufficient to establish the fact of duress, and that not merely
threats and menaces and belligerent manifestations, but positive acts
offered by her military or naval officers, with a public vessel of war
and an armed military and naval force were the means of such duress.
This is manifest from the tenor and character of the paper. The fact
is recorded in it. Why, sir, it is quite apparent that it was expressly
intended by Commander Dias to herald the heroic exploits of himself
- and comrades in the guano war of Shelton’s Isle. It is obvious that
it was drawn up by him to be used as legal and formal evidence ‘‘ in
perpetuam rei memoriam’’ of the vigilance and valor displayed by that
illustrious warrior and his army, and of the triumph they achieved,
_ and the glory they won by their descent upon Shelton’s Isle, wresting
it from the Yankee intruders, hauling down the flag of the United
States, and, after reducing our agents and employés to submission,
making prize of our vessels and property, compelling the prisoners of
war to enter the Venezuelan service, and pledge their fealty and alle-
giance to the ‘‘supreme government’’ of that republic whilst remains
ing on the island, and finally by driving them and our vessels away—
having also taken our cannon and armaments as trophies of victory!
There is little doubt that Dias would display amazement and indig-
nation, even if affected, iftold that any body imagined this agreement
was volunteered by Gibbsand Lang. He would scout the idea that it
sprung from a deliberate conviction by them that the claim of Vene-
zuela was just, derived from historical research, and an investigation
of the principles of law governing the case, as laid down by publicists,
which, it seems, she would now fain pretend. She puts it forth as
conclusive, as if Gibbs and Lang were fully empowered and unques-
tionably competent to decide the whole matter, and that they had so
decided it in writing, and irrevocably, and that no appeal can be had
from their decree, whatever the fraud practiced to procure their signa-
ture,however palpable the mistake or error they committed, and not-
withstanding the judges may have been under military duress in regard
to this very matter. Suppose the agents to collect and ship guano did
come to the conclusion that the isle ‘‘pertained’’ or ‘‘belonged’’ to

Bie AVES ISLAND.

Venezuela, and that as honest and consciencious men, constrained by
nothing except the dictates of justice, and wholly uninfluenced by awe
of Dias’s potential authority and might, or dread of his military force,
ought to yield it up to her representative, and even to ‘‘lend their aid’’

to him in sustaining her rights, and to yield to him also our personal
property, carried thither from this city, without authozity from us so
to do, such acts cannot prejudice our rights, and much less can their
acts affect the rights of the United States. And further, the partici-
pation by Venezuela and her officers in such course, by those agents,
who are not public officers, in derogation of their duty as agents,
manifestly exceeding their authority, 1s sof itself a fraud upon us, and
an insult to the United States, meriting cogent and efficacious rebuke, .
The incompatibility of the suppositious decision adverted to with the
tenor and character of the paper produced, the testimony this paper
gives as to the circumstances of the case, otherwise notorious, the
significant dissimilarity between the signatur es to the two papers, not
only destroy the defense of Venezuela to our claim, but place her in a
position in which she cannot creditably advance any other. She is
forced to encounter the dilemma presented on the one hand of relying
on this alleged agreement or capitulation, and to admit the ‘‘duress’’
stamped on its face; or, on the other, that of abandoning it, confessing
that it was procured by disreputable deceit and fraud, to maintain a
claim as false as the surreptitious testimony by which exclusively she
has sought to oppose it.

We fully admit that we did not in our letter of the 26th February,
bestow more extended notice upon the other paper, the ‘license, permit,
or notice,’’ signed by Dias alone, solely because we did not regard it
as of sufficient importance to merit much comment. Our immediate
object in transmitting it, as our letter shows, was to furnish all the
facts as well as exhibit the false pretenses resorted to by Venezuela for
her officers despoiling us of our property and committing outrages
upon our rights as citizens of the United States, which are briefly
alluded to in the same letter. We did not anticipate that the mere
taking by our agent into his keeping of a paper written in a foreign -
language, not understood by him, and signed and presented by : another
person, would prejudice us in the manner you intimate, and we did >
not deem it necessary to suggest that it was probably received, in part,
because a refusal to “take’’ it would probably have excited angry
feelings, led to hostilities, have occasioned recourse to harsh measures,
and, perhaps, the belligerent collision of armed men, and the sacrifice
of human life. Nor did we refer, in our letter of the 26th February,
to the fact that our instructions to our agent emphatically forbade
resistance by arms to the authorities of Venezuela, if they, should claim:
and seek to assume possession of the isle; whilst in the same instruc-
tions, we expressly denied that any nation had ‘‘any gust right to dis-
possess us.’’ If we erred in not extending the length and enlarging
the scope of that letter, and including those facts, it was because we
attached no consequence to the “permit, license, or notice,’’ therewith
transmitted, or its contents, except as then intimated, ‘and did not
anticipate any possible use that it could be apphed. to rendering these
facts material. It is our misfortune that we did not regard it of the

AVES ISLAND. 33

importance that you seem to, and we are constrained to abide by its
effects, whatever they may be. Had the other paper, the asserted
‘‘acreement,’’ signed by Gibbs and Lang, been under consideration
by us when we wrote that letter, we should have said it was the boun-
den duty of our agents to preserve the peace, and it would have been
inexcusable for them not tc have exerted themselves to that end; and
that of signing such document ‘was the only means, or the best means,
in their judgment, to prevent outbreak and the probable effusion of ©
blood on either side, such course was excusable, though the unauthor-
ized act to which the agents would have been ‘‘ constrained’’ by such
_ circumstances could have had no effect or force on our rights; and we
should have so said, without reference to the direct falsehood and fraud,
which we are now satisfied were practiced by Dias to procure it, and
which utterly vitiates it, even without such ‘‘ constraint.”’

And now that we have arrived, in regular order of time, to our letter
of the 14th ultimo, we proceed to notice what is said in your commu-
nication respecting its contents. In referring in that letter to the
Dias ‘‘ permit, license, or notice,’’ we say that ‘‘ Dias, on December
13, had drawn up and signed a paper in Spanish, (on file in your
department,) and which our agent, Captain Gibbs, was constrained under
the circumstances to take, and which Dias styled his ‘permit.’’’ You
extract and quote this sentence in your communication. A careful
reperusal of the papers on file in your department must, however,
satisfy you that, as before suggested, there is in the jirst place, a mis-
conception of fact as to the particular paper we specially referred to,
and that it was confounded with the asserted ‘‘agreement’’ with which
Mr. Hames was ‘‘met’’ at Caraccas, which we did not and could not
refer to, insomuch as the existence of that paper had not then been
suggested in any of the papers filed in the case. This misconception
is not unimportant, for the character of the two papers are not iden-
tical. And in the second place, there is a misconception of the purport
of our remarks above quoted in relation to the paper, that we did so
refer to. This will be quite apparent by a reperusal of those remarks
and of your letter. As we have already observed, we did not intend
to convey the impression that that paper styled a ‘‘permit’’ by
“*Dias,’’ drawn up in Spanish by him, and signed by him and by no
one else, was so signed (by Dias) under duress, or that it was not a
‘‘voluntary proceeding’’ by him. We did not refer to any paper as
having been ‘‘signed’’ by Gibbs, either voluntarily or under ‘‘duress,”’
and in respect of the ‘‘permit,’’ the remark made by us that he was
“‘constrained’’ under the circumstances to ‘‘take’’ (not ‘‘ sign’’) it, ap-
pears by your letter to have been misinterpreted by you in another
particular. We state, in the last paragraph but two of our letter,
containing the remark just quoted, as follows:

“‘Tt has been contended that we admitted the right of the Venezu-
elan government to Shelton’s Isle, and the right of Captain Dias to
drive us off! In other words, that we were trespassers, and this, too,
in the paper given by Dias to Captain Gibbs. How perfectly idle, and
worse than idle, is such pretense. We might have resisted Dias and
his soldiers with some loss of human life on both sides. We ought,
perhaps, to have done so. We believe we could have easily chastised

Ex. Doc. 10-——3

34 AVES ISLAND.

and captured his whole force, vessels and soldiers included, if we had
resorted to arms and bloodshed. But we preferred relying upon the pro-
tection of our country. We submitted to Dias’s commands because he
was an officer of a sister American republic with whom our country was
at peace, and was acting by its authority with its public force. We
submit, sir, to you and the President that our forbearance was com-
mendable. The orders and conduct of Captain Dias were unnecessa-
rily harsh; our tools and implements, materials and provisions were
seized in part by his soldiers, and our houses taken from our workmen.
The loss sustained thereby amounts to many thousand dollars. We
were prevented from lading guano prepared to be put on board our
ships, and constrained by military force to abandon the isle with no |
cargoes for some vessels and with part cargoes for others. Our heavy
contracts for furnishing guano are by consequence unfulfilled, and
heavy damages incurred by us; the wages of our numerous workmen,
who were rendered valueless to us by his illegal and unwarranted
interference, reach, in the aggregate, a large sum. Our whole outlay
for the business is a dead loss. We have had to pay for false freight
and demurrages and damages. And besides all this, the consequences
directly resulting to us from this outrage have been such as can readily
be anticipated by any commercial man. They are embarrassments
and well nigh ruin, unless redress is promptly affordedus. We solicit
your consideration of all this, and trust it may induce to immediate.
action in our behalf.’’

Not only was this overlooked by you, but it is also apparent that
you did not recollect that Messrs. Lang & Delano, in their letter to
you on the 15th Jantary said, in reference to Dias and his soldiers,
*“qve could easily have kept possession by force had we seen fit so to do.”’
We cannot imagine that, if you had adverted to these two extracts,
you would have so misconceived the expression used by us in our
letter of the 14th ultimo, ‘‘constrained under the circumstances to
take,’’ as to construe it to imply that Captain Gibbs was scared by
Dias into taking it, as your employment of the common law term
“‘duress,’’ without qualification, implies you supposed. We did not
mean to insinuate he took it under fright. We frankly say to you
that as to that paper, whether styled a ‘‘permit’’ or ‘‘license’’ or
‘notice,’ or given any other name, .and as to its being taken by
Gibbs, we shall not urge as a defense (whatever the consequence to
our claim, or whatever the effect upon our rights) anything inconsist-
ent with the declarations of ourselves and Messrs. Lang & Delano,
just quoted, for they are the veritable truth. You inform us that the
department must be ‘‘satisfied this agreement was made under duress.”’
Whether you refer to the ‘“‘permit,’’ ‘‘notice,’’ or ‘‘license,’’ or
allude to the other alleged paper, is immaterial. We do not imagine
that your meaning was, that we must furnish proofs that our agent
was in a state of bodily fear, paralyzed in mind by apprehensions of
impending personal danger, terror stricken from threats and menaces,
or hostile demonstrations or belligerent acts of Dias and his soldiers,
though some of the common law cases, as to contracts between indi-
viduals, advance doctrines that would require proof of a state of mind
akin to a condition of panic to constitute ‘‘duress’’ as necessary to

AVES ISLAND. 35

nullify the contract. Lest we may possibly err as to the extent of
your requisition, we are constrained by a regard for truth and candor
to concede that we do not believe we can comply with such requisition.
Unless, as heretofore hinted, the character and terms of the alleged
agreement, per illud, afford such presumption, we are at present
unaware of any testimony tending to the establishment of a duress of
which such personal panic was an element. We are confident, how-
ever, that, as to both papers, without recourse to such defense, there
is amply sufficient in the circumstances under which Captain Gibbs
took the one or (if his signature is not similated, which we do not at
present charge) signed the other, and in the character of the alleged
concessions, acknowledgments deduced from either, to render both
documents, or any others Venezuela may bring forth, worse than
worthless in defense or justification or palliation of her conduct. And
there is nothing in them which should impair owr claims or affect our
rights or the rights of the United States, or that should cause any
abatement of vigilance and firmness in the prosecution of the de-
mand on that government for prompt atonement and indemnification.
An imputation of cowardice against our fellow citizens who were at
Shelton’s Isle would be a calumny that we scorn to intimate in any
mode or for any object. We know’ your feelings of patriotic pride
would revolt at the idea of presenting such ground to the Venezuelan
officials. Why, sir, we reiterate that there was not, at any time
during the fortnight our employés were on the isle with Dias and his
soldiers, either before or after his reinforcements, that Gibbs and Lang
and their companions, if they had not been peaceful and forbearing,
could not have tied the representatives of the ‘‘ supreme government’’
of the republic, and every one of his half starved ragamuftin corps,
_hand and foot, and pitched them heels over head into the Caribbean
sea, and if they had dared to attempt resistance, eaterminated them
on the rock, and this too without any serious peril to themselves,
The example given by the military bungling of Jias’s soldiers in blow-
ing out the brains of one of themselves whilst attempting to salute
their flag, shows that little danger was to be apprehended from them.
It is probable Dias would not, on the 13th December, been able to
land on the isle but for the assistance of some of the Bostonians there,
who in charity loaned him boats and volunteered to aid his lubbers to
manage them. After they had thus got on the rock, commiseration
for their miserable condition ‘‘constrained’’ our people to provide
them with food and water and to share our shelters with them. No
forcible resistance was made to their hoisting the Venezuelan flag on the
isle, nor to their demands made after they had landed, because they
came there under the authority and orders of their government, but we
feel bound to repel any supposition that craven fear of personal harm or
other unhappy personal consequences resulting from a hostile conflict
with the Venezuelan legion could have restrained our agents and em-
ployés from opposing them to all extremities, or constrained them or
influenced their course in any respect. In fine, sir, we insist that the
documents manufactured by Dias add to the enormity of the outrage
upon the American settlers at Shelton’s Isle by Venezuela, and to the
unjustifiable character of her spoliation of our property, and they also

‘36 AVES ISLAND.

ageravate her insults to our national flag. Full proof of the circum-
stances referred to shall be furnished the department so soon as we can
obtain it. Captain Gibbs is now on a voyage to Marseilles in France,
and most of the other witnesses are scattered, but the utmost diligence
shall be used. Captain Gibbs is entirely ignorant of Spanish, neces-
sarily he must have had to rely on others as to the purport of papers
written in that language. We can readily imagine that fraudulent
misrepresentations or mistakes occurred in this respect. The tenor
and character of the papers exhibited justify such conclusions. No
translation of them in writing was dared to be made by Dias and
given to Captain Gibbs. The object and purpose of Dias’s ‘‘ descent
on Shelton’s Isle in a vessel of war and with troops,’’ was avowedly to
take possession of it, vi e¢ armis, in behalf of Venezuela, and as ‘ be-
longing ’”’ to her, and to expel Captain Gibbs and others therefrom.
If Venezuela really had any valid claim to the isle susceptable of
proof, wherefore the necessity or propriety of the manufacturing these
papers? Truly he must have had strong doubts of the rightfulness
of her claim to feel ‘‘ constrained’”’ thus to endeavor to bolster it up by
such bungling contrivance, so discreditable to his government and to
himself, and which, if not as dgvoid of intelligence as of honesty, he
must have known would be utterly futile. It is absurd to imagine
that admissions of Gibbs and Lang, not of particular facts or incidents
peculiarly within their knowledge, but of a general character, as to
the isle ‘‘ pertaining’’ to Venezuela, can create a title for her or ben-
efit her in any degree. Her title depended upon the facts as to the
discovery and actual occupation of the isle by antecessors‘or by her-
self, and upon her continued possession of it and upon the law of na-
tions, and not upon any admission of individuals who may be on the
isle when they are made, though they may be reduced to writing and
signed. Her abandonment of the isle long antecedent to our discovery
and occupation of it, extinguished any former right she may have had,
and Messrs. Gibbs and Lang could not by any admission or concession
destroy this fact. 'They were not competent to decide as to these differ-
ent questions either in respect of any peculiar means of information
possessed by them, or in virtue of any authority delegated to them
either by the United States or by us, to determine them, and whilst at
the isle, on the 13th December, from whence, or from whom, except
Dias could they, there and then, received the new special proofs that so
enlightened them as to the validity of the title of Venezuela? Why
is it that these proofs, if any exist, are now withheld by her? Why,
instead of honestly producing and relying upon them, does she resort
to such paltry muniments as the second hand opinion of an agent (not
empowered to decide the right) even if attested by his signature to a
paper written by her agent in a language the signer could not read and
did not understand. And further, a presumption of the fairness of the
paper produced is inconsistent with its stipulations. After the warn-
ing that they must evacuate the isle, and that Dias came there to ex-
pel them, there could not be any reasonable motive for making the
concessions it purports to make. A permission dependent on contin-
gencies and subject to revocation by him, or by his government, at will,
‘«¢o continue loading with guano the three vessels then taking cargo,”’

AVES ISLAND. 37

surely will not be regarded as being a fair consideration for the abso-
lute and unqualified relinquishment of the right of the United States
and of our right to the island and to all the guano on it. Andif, with-
out any other constituents of covin, this was a case between individu-
als, such arrangement would be set aside and nullified by a court of
equity, not only as a usurpation of authority by the agent in illegal
violation of the principals’ rights, but as an ‘‘unconscionable’’ exaction
by the other party. Why, if Dias had any right to the artillery and
armament, &c., was it stipulated that he might take possession of it,
and if he had no right, wherefore was it yielded up in such form with-
out any equivalent therefor? Why, also, were they bound to ‘‘lend
their aid to the garrison of the island with such auxiliaries as they might
require,’ and subject themselves to the ‘‘ orders’’ and place themselves
‘under the flag of Venezuela?’’ If Gibbs and Lang did, in fact, vol-
untarily ‘‘ sign’’ this alleged agreement produced by Venezuela, we are
convinced, from its purport alone, that it was misrepresented to them,
or at least to him. They probably either supposed it to be a mere ac-
knowledgment of the service of the notice or receipt of the permit ©
Dias had given him, and of which it is nearly a copy, and-regarded it
as of no moment except to serve Dias with his government as proof of
his having given it. When the stipulations we have adverted to are
well considered no other reasonable conclusion can be made consistent
with his fidelity to us, (that we do not doubt,) and consistent with his
knowledge of the rights we claimed and which he was specially deputed
- maintain and protect, except it be that the paper was extorted by
orce.

Messrs Lang and Delano sent you, on the 15th of January last, an
extract from their instructions to their agent, enjoining him “ not to
make forcible resistence to any government,’’ and in ours, dated June
21, 1854, we say, ‘‘ we don’t wish you to resist the armed force of any
government, although we feel confident the island does not belong to
any nation whatever ; yet there may be claims of this kind we don’t
know of, and we do not wish to place yourself, by any chance, ina
false position by resisting any government force that may be sent
there.’’ Our second instructions, dated June 22, 1854, are somewhat
different. In them we say: ‘‘No government has any better claim
than we have, and this you can insist upon. Don’t mind any threats,
because there is nothing they can or dare do toinjure you. The proba-
bility is, if anybody comes under English, French, Dutch, or Danish
flags they will say they are by order of government; but resist all
attention to their orders, and insist they must take you all as prisoners
and make prizes of your vessels before you will go, and leave it for
your government to settle the matter with them. Iam sure they will
not move you, but will frighten you if they can. Against other
comers you must take your chance and drive them off.’’ Copies of these
instructions, retained by us, are inclosed herewith for the inspection
and satisfaction of the President and yourself; but as there are private
matters alluded to in them, of no public interest, we desire, after your
examination of them, they may be returned to us.

If it is inquired why we specified four nations to be resisted and did
not name Venezuela, we answer that these four nations have unques-

38 AVES ISLAND.

tionable ability to protect themselves, and are precisely the four of all
others that we would not at any time yield an inch to, unless in a case
of unquestionable right on their side; and we claim the prerogative
of indulging such fancy (as some will perhaps regard it) without
affording just cause for censure from any. We did not include Vene-
zuela, as we did not anticipate any intermeddling by her; and, besides,
even if we had anticipated that her officials could have lent themselves
to the gang of speculators that have inveigled her into this scrape,
insomuch as she is a sister American republic, poor and weak, and
likely to be kept so by bad men, we would probably have expressly
excepted her from the list, given in the last letter, of those to be re-
sisted. Our anxiety to give no ground for any accusation of fillibus-
tering on neighbors less powerful than ourselves, which of late years
has been so freely imputed to citizens of the United States, and for
which our country is so much reproached, would also have prompted
to such exception. We did not wish to involve our government in
any trouble on our account with any foreign power, but, if unavoida-
ble, we preferred a ‘‘foeman worthy of our steel.’’ It was this desire
that influenced us in writing our letter of January 15 to you, to say
(whilst we earnestly insisted that Venezuela had not a shadow or sem-
blance of right, and protested against her unjustifiable proceedings,)
we did not then ‘‘ask the island to be protected as a national territory ’’
of the United States, and limited our application for your interposi-
tion to demand from Venezuela indemnity for having ‘‘ trampled in an
outrageous manner’ upon our rights and interests as individual citi-
zens, and for her spoliation of our property. We left the questions of
redress for the violation of the national rights of our country in respect
to this isle, and of atonement for her insults to the flag of the United
States (as it became us to do) entirely to the President and yourself,
on whom the laws devolved them. You, and not we, had them in
charge. Some persons have attributed our difficulties in this case to
what they choose to characterize as a want of spirit and an overstock
of prudence, and that our troubles with the fillibusters of Venezuela
are but another exemplification of the unprofitableness of that ‘‘ most
rascally virtue.’’ We are confident, however, that the President and
yourself, and the considerate portion of our countrymen, will appre-
elate our motives and commend them. And we are equally confident
they will not cause any relaxation of efforts to effect just redress for our
wrongs.*

If, as is possible, we have misconceived your letter, and that, in the
employment of the word duress, you adopted it as sometimes loosely
used in common parlance, and not in reference to its technical common
law signification; and likewise, that in your reference to such defense
of duress only you did not mean to exclude those of mistake, misrepre-
sentation, or fraud,-or a compound of one or of all, with duress or con-
straint, to overthrow the admissions, &c., in the alleged agreement.
Hoping this may be so, we have, since the receipt of your letter, sought
for authentic information from all sources available to us, and we ex-
pect to forward to you, if not with this letter by the mail after, con-
clusive proof of misrepresentation and fraud practiced to effect its being
signed by Captain Gibbs, (if that produced is the one he did sign,)

AVES ISLAND. 39

and who, when he did sign, believed it was an entirely different docu-
ment, and utterly refused to make any acknowledgment of the title of
Venezuela, or to do any act compromitting our claims. We hope to
procure the deposition of a respectable and impartial witness, who, we
understand, was present when Gibbs was solicited by Dias to sign the
paper he did sign. We shall forward also other proofs so soon as we
can have them prepared in proper form.

In the the meantime, and upon this the first opportunity we could
appropriately take, since advised by you of the production by Vene-
zuela of this alleged ‘‘agreement,’’ we do most unequivocally and
emphatically and solemnly disavow the same, and protest against the
same, and all and singular the concessions, acknowledgments, or ad-
missions and relinquishments in general and in particular therein made,
as unauthorized and as untrue, and do aver that said alleged paper is a
‘false, foul, flagrant, and flagitious fraud,’’ and utterly null and void
for the causes above suggested, and others that we shall expose in
another communication to you. That other communication will contain
citations to works on the laws of nations and on the civil law and on
the common law and of diplomatic history, where the principles con-
trolling the questions presented in this case may be at once referred to.

The present communication, as stated in its commencement, is in-
tended as a defense of ourselves against the suspicion we supposed, from
your letter, you entertained of a want of candor and fairness in our
former letters. We have sought to correct the misapprehensions of
fact and misconstructions of those letters that gave rise to these suspi-
ions. We have made explanations to exonerate ourselves from censure.
If in performing this duty to ourselves we have appeared to be in any
degree hypercritical, we trust you will not attribute to us any feeling or
motive inconsistent with high regard for yourself and high respect
for the great ability you have brought to the administration of your
important office. The only object not heretofore stated that we could
have in referring to any of those unavoidable omissions, inaccuracies,
or mistakes or errors caused by the pressure of official business, and of
which no resonable man will complain, would be to plead them when
asking a liberal indulgence in respect to our own.

We have the honor to be, sir, with great respect, your obedient

servants and follow citizens,
PHILO S. SHELTON,
For self and others.
Hon. Witiram L. Marcy, "
Secretary of State.

Mr. French to Mr. Marcy.

Exeter, N. H., June 22, 1855.
Siz: Having been employed by Lang & Delano, of Boston, as their
attorney in the matter of their claim for indemnity of the Venezuelan
government for damages in being driven from the ‘‘ Aves Island,’”’ I

40 AVES ISLAND.

desire to be informed, as far as proper, of the state of the negotiation
by our government and that of Venezuela on the subject.

Please communicate with my brother, Hon. B. B. French, who will
be at liberty, now that he has resigned his office, to act for me at
Washington.

With much respect,
HENRY F. FRENCH,
Care of Hon. B. B. French, Washington, D. C.
Hon. Wint1am L. Marcy,
Secretary of State.

Mr. Shelton to Mr. Marcy.

Wasuinaton City, June 24, 1855.

Sir: The accompanying memoranda are submitted to your con-
sideration in connection with our former letters, and the following
testimony herewith inclosed :

A. Deposition of Captain Joshua F. Safford as to rraup of Dias
with respect to ‘‘agreement’’ and hauling down the United States flag
by Dias, dated June 20, 1855, &ec.

B. Deposition of Captain J. Wheeler, June 8, 1855, discovery of
guano on Shelton’s Isle by Captain Gibbs, ce.

C. Deposition of Captain J. Wheeler, June 15, 1855, as to the
United States flag being hoisted and kept flying on Shelton’s Isle, and
as to declaration of British commander of her Britannic Majesty’s ship
Devastation as to our rights, &c.

D. Letter of Captain N. P. Gibbs to P. 8. Shelton, received about
January 29, 1855.

KH. Certificate by Nathan P. Gibbs, in his handwriting, made in
January, 1855, and given to P. S. Shelton.

F. Letter of N. P. Gibbs to P. S. Shelton, received January 15 via
St. Thomas. (Landing of second company of Venzuelans.)

G. Letter of Captain N. P. Gibbs to P. 8. Shelton, received in
January, 1855.

H. Protest of George W. Nickels, master, Henry C. Dearborn, mate,
and Patrick Scollan, second mate of ship James N. Cooper, New York,
February 20, 1855.

I. Extract from N. P. Gibbs’s report to P. 8. Shelton, dated Aves
Island, April 6, 1854: (discovery of said island.)

We have confidence that our letter of the 20th instant has satisfied
the President and yourself that we have not had any desire to suppress
any fact or to withhold any information in our possession respecting
this case, and especially that our statement that Captain Gibbs was
“‘constrained under the circumstances to take’’ the Dias permit was a
correct version of the facts stated in proper terms in such language as
the facts justified, and that that language was not used to mislead in
any wise the department. We are particularly anxious to convince
you that the statement as to constraint was not an afterthought put

AVES ISLAND. 41

forth to explain any concealment in our letters of the 15th and 29th
of January last, or to obviate any injurious effect by the transmission
of that permit on the 27th of February. If you desire further proof
on this point, and of our want of knowledge of all the circumstances
when our first letters were written, we will furnish it so soon as
Captain Gibbs returns. If not deemed objectionable by you,-we would
wish to lay this case before Congress at its next session, by memorial,
to sanction by express law the equitable right we conceive we have to
the island and guano thereon, subordinate to that of eminent domain
and property of the. United States, in virtue of our discovery and
occupation.

We would respectfully ask of you to indicate to us, if proper, what
course the department may probably pursue in this case, and also
what is expected of us, and, if according to rule, that the requests made
in our letter of the 14th ultimo may be complied with as information
on those points will regulate our conduct.

We would respectfully request the department to ask Mr. Hames to
procure, if practicable, a copy of Dias’s official report.

On the return of the undersigned to Boston, or perhaps in New
York, on the way to Boston, we will address you again, and in special
reference to another part of this case not yet sufficiently alluded to.
We are apprehensive that possibly our rights and interests may be
prejudiced by the inadvertent action of our government, which it is
reported (on the authority of persons concerned in the combination of
speculators heretofore alluded to, located Philadelphia, Caraccas, and
St. Thomas) it has taken, or it 1s about to take, in behalf of those
speculators. We think we understand all who are concerned and the
designs of the managing parties. They have sought to swindle Vene-
zuela by misrepresentations, and they seek to complicate the United
States without regard to the interests or the preservation of the honor
of its government, and their scheme is in disregard of our just and
honest rights, and they are striving to carry it out to our injury, and
any favorable notice the officers of this government may bestow them
will be used at Caraccas to satisfy the officials there that the President
and yourself are disposed to back them. An indisposition to do any
person injustice, or to accuse any one before full investigation, con-
strains us to withhold at present a statement of facts, partly prepared,
which facts, we are informed, exist with reference to the parties con-
_cerned in the combination, and are of a character, when fully known
to you, that will save us the trouble of any express remonstrance by
us against the government of the United States encouraging it by any
words, or in any manner, or to any extent. A different course will be
certain to lead the government into difficulties, and to embarrass, if
not compromit, the enforcement of our just claims.

We are apprehensive that the fair prospect of the arrangement of
this unpleasant business so as to save ourselves harmlessly a sale and
transfer of our rights in Shelton’s Isle, with the permission of our
government to certain English and French merchants, (who feel satis-
fied they would have the protection of their government,) is destroyed
by our being without any reply to our request on that subject, in our
letter of the 14th ultimo. Indeed, from our not having any significa-

49, AVES ISLAND.

tion of the consent of the government, the offer is regarded as with-

drawn. This, sir, is extremely hard in its effects upon us, who have

done nothing wrong. Though our prospect for the sale of our rights

in Shelton’s Isle, as above indicated, is no longer favorable, we still

desire your sanction or dissent, in the event of application by other
arties.

i We have the honor to be, very respectfully, your fellow-citizens and

obedient servants,
PHILO 8. SHELTON,
For self and others interested.
Hon. Witiram L. Marcy,
Secretary of State.

Mr. Shelton to Mr. Marcy.

. HEADS OF MEMORANDA FOR HON. MR. MARCY.

I. Fact of discovery.

II. Description of Shelton’s Isle.

III. Fact of our occupation.

IV. Discovery, of itself, gives no title. -

V. Asserted claims of discovery by Spain and by Venezuela as her
successor.

VI. Title claimed by Venezuela from contiguity, cde.

VII. The possession and occupation must be actual use and settle-
ment.

VIII. Such possession and occupation must be continued.

TX. Abandonment of occupation and use destroys claim.

X. Faculty of acquisition by the United States of such isle by dis-
covery.

XI. If faculty is not in the United States, it remains in state of
discoverer.

XII. Executive may enforce and maintain public and private rights
resulting from discovery and occupation without action of Congress.

XIII. The non-existence of any restraining or directory law leaves
plenary power with the President.

XIV. Discovery by private citizens vests rights in the United
tates.

XV. Rights and interests of citizen discoverers.

XVI. Extent of our rights in the present case.

XVII. A discoverer has no right or power to alienate rights of his
State, or his own, to foreign powers, and admissions by him to such
effect are of no force.

XVIII. Misrepresentation and fraud vitiate all contracts.

XIX. Mistake or error vitiates contracts, if material.

XX. Misrepresentation and fraud by a government in transactions
with individuals vitiate contracts.

AVES ISLAND. 43

XXI. Constraint or coercion by menace or threats of a government,

or its officers, destroys contract with an individual.
XXII. Admissions by agents.

XXIII. Captain Gibbs’s agency.

XXIV. The Dias capitulation obtained by the compound means of
misrepresentation and fraud and constraint, or force or duress.

XXV. Onus probandi as to title rests on Venezuela.

XXVI. Venezuela bound by the consequences of the fraud and
mal-conduct of her officers, and, having avowed them, cannot hereaf-
ter change the issue.

XXVII. Form of relinquishment by agent immaterial.

XXVIII. Insults to the United States by Venezuela and outrages
upon our persons and property in this case a just casus belli.

XXIX. Damages and indemnity.

Memoranda by Philo S. Shelton, in his case, for State Department,
June, 1855.

I. FACT OF DISCOVERY.

Captain N. P. Gigs, in command of the brig John R. Dow, in our
employ, whilst on a cruise, expressly for discovery of guano on desert
islands in the Caribbean sea, about last of March, 1854, or first of
April, discovered ‘‘ Aves Istanps,’’ in latitude 15° 40’ north, longi-
tude west 63° 38’. The principal one is named ‘‘SueErton’s Istu.’’
He personally landed on it, and assumed possession, having found
guano, of which he was in search, upon it, [vide extracts from his letter
or report to us, dated April 6, 1854, marked I, inclosed.] He returned
to the United States to get vessels to go back and take possession of
the guano and island, with a competent force, as soon as possible. His
formal affidavit will be procured of these facts as early as practicable.
We did not think it essential to procure and send it to you, insomuch
as the consummation (of the inchoate right thereby acquired) by
occupation, in a few weeks subsequently, is the most material. But
Captain James WHEELER’S deposition (now filed, B) proves conclu-
sively the discovery of the guano, &c., as stated. WHEELER was at
that time in our employ, and then engaged in shipping guano for us
from the Gulf of Mexico; and whilst in the Gulf, Captain Guess told
him of the discovery he had recently made, and on his (W.) visiting
Boston in May, he (W.) communicated the facts to Lang & Delano.

If. DESCRIPTION OF SHELTON’S ISLE.

See map heretofore submitted, and that now sent, (I.) The isle is
about 4,000 feet long, and about 350 feet wide. Jt is a desert unin-
_ habited rock. It has, hawever, become inhabited. When he discovered
it, it was not susceptible of being inhabited, unless great artificial
improvements were made by sending tenements and soil thither; and

44 AVES ISLAND.

also by carrying provisions and water there, till the latter could be
procured by deep boring in the rock. The pretence that before we took
possession it was ever inhabited or occupied by any humay being for
any considerable length of time is utterly false. Its appearance then
showed this conclusively.

We have learned that it was visited in March, 1835, by her British
Majesty’s ship Race Horse, and that then, and formerly, some strag-
glers from St. Thomas occasionally visited it, and gathered eggs there;
and in a publication, in a pamphlet called the ‘‘ Nautical Magazine,’’
stated to be an account of the island, it is said there was an “‘egg
collector’s’’ hut there then, ‘‘and a tomb in the center of the island,’’
being that of ‘‘the governor of the egg collectors ;’’ but the description
of the form of the isle, and its length and width, &c., do not corre-
spond with the fact. No appearance of any tomb, or of any hut ever
having been there, existed in 1854, when Grpzs first landed. The
Magazine account is, therefore, more or less fancy. The latitude stated
nearly agrees with ours, but no longitude is given.

The Danes, (if the occasional visits of the St. Thomas egg collectors
can be regarded as actual permanent use and occupation,) may have ©
had some right in 1835. But this was abandoned; and, in 1851 and
in 1854, it was uninhabited and ‘‘ DERELICT.”

“¢ Johnston’s Gazeteer,’’ published in London in 1851, says: ‘‘Aves
or Bird Island is a small group of islands in the Dutch West Indies,
southeast of the Island of Buen Ayre—so called from the vast number
of birds which frequent there; the only inhabitants are a few Dutch
fishers ;’’ [those are latitude 12° north, longitude 67° 40’ west, more
than 180 miles further south, and 240 miles further west than SHEI-
ton’s Istz.] ‘‘II. An uninhabitedisland, 147 mile west of Dominica,
latitude 16° 40’ north, longitude 63° 38’ west.’’ The Islands of Guad-
aloupe and St. Thomas are nearest Suetton’s Istz. (See Wyld’s and
Johnson’s atlas. See Bouzllet’s Dict. Univer. d’ Hist. et de Geog., as
to Aves Island being near Curagao, and claimed by the Dutch. These
are not Shelton’s Isle.

Ill. FACTS OF OUR OCCUPATION.

In June, 1854, we dispatched several vessels to SHeLton’s IsLE to
occupy it and procure the guano. We did not delay after Captain
Gisss’ return and the report of his discovery. We dispatched them
forthwith, and continued to do so, up to the 15th January, 1855, when
we first heard of the isle being invaded by Dras; and of Gipss being
ordered off, &c. Our occupation of it was notorious during all that time.
Lane & Deano, upon WHEELER’s disclosure to them, sent vessels also
in June. Our vessels were the brig J. R. Dow, N. P. Grszs, master,
(brought home by the mate, Smith ;) brig Cronstadt, HowLanp, master,
(who died at the isle, and also some of his crew;) ship Junius, EiRsKINE
master ; ship James N. Cooper, NickeLs master; bark Carlo Maurin,
Safford master, (dispatched from Liverpool;) bark Amazon, ———
master; brig Viator, master ; brig Mary Pearce, master,
and others, whose names we cannot here remember, not having papers

AVES ISLAND. ) 45

to refer to. They were all vessels of the United States, and manned
‘Cas required by law’’ by American citizens.

As stated-in Captain Wheeler’s first affidavit, (marked B, )our first
vessel arrived nearly about the same time (early in July) as he did, in
one of Lang & Delano’s; and all commenced taking guano. Our
taking possession of it was undisputed, and of course peaceful. We
continued this occupation, with many employés, uninterruptedly and
without molestation, until the month of December, (13th,) 1854, though
several vessels of other flags and some public vessels of war visited the
isle during that time. The proofs of discovery and of assuming the
occupation peacefully, and peaceful use and possession for several
months, if deemed imperfect, will be rendered complete. The fact
that several foreign vessels, and amongst them ships-of-war, as above
stated, visited the isle, is partly proved by Wheeler’s second affidavit
(marked C.) But other proof will be furnished.

As to our intention of permanent possession of ‘‘ Shelton’s Isle,”’
we will show that we sent out and placed on the isle several houses,
wharves, &c., &c., and carried out at different times water, provis-
sions, &c. ; even ‘‘ American soil’’ went out as ballast to be left there,
and also American females, (wives of some of our employés,) went
out in some of our vessels.

We feel assured that if our company had staid there some time longer,
and the question of citizenship had been raised as to persons born
there, our government would not have deemed them native citizens of
Venezuela. We purposed to make the isle a place of rendezvous for
our guano vessels, and for supplies of coal, water, wood, &c.

IV. DISCOVERY OF ITSELF GIVES NO TITLE.

As is shown in our letter of the 14th May, by the jus gentium, the
mere discovery of vacant isles in the high seas does not vest in the in-
dividual discoverer, or in the State to which he belongs, any right
except that of taking within a reasonable time the actual occupation
and possession of the isle; and that if such right is neglected to be
exercised, any subsequent discoverer acquires such right equally as
the first. We refer you to the authorities cited in that letter.—
(Vattel, Droit des Gens, Am. ed., 1854, p. 98, &c., §§ 207-8-9; 1 Phill.
Int. Law, p. 242, §224; 1 Kent, p. 177, jus in re, gus im rem, as to
cessions; Wheaton’s Int. Law, ed. of 1855, pp. 217, 218; Puffendorf,
1, 4, c. 6, §3; ibid, 1. 4, c. 6, §1, p. 1; ibid, 4, 12,6, 8; Grotius, 2,
aes ib., 1. 2, c. 2, §2, 5; 3 Kent, p. 462; Kliiber, Bynkershoek,

1 6 Eee

VY. ASSERTED CLAIM TO DISCOVERY BY SPAIN AND OF VENEZUELA AS HER
SUCCESSOR.

It is not pretended by Venezuela that she is the first discoverer; but
itis said Spain was, and that Spain is her antecessor. Whether either
_of these assertions are fact or not is wholly immaterial; for neither
Spain nor Venezuela ever took possession, or if they did, they aban-
doned it long since. Venezuela has not produced any proof as to the

\

A6 AVES ISLAND.

first discovery, which she should be meanest to do.—(See 1 Phill.,

§267, p. 288; § 274, p. mae Grotius, 1. 2, c. 9, § 8, &c., § 260, p. 280;

1 Kent's Com., V Lines see Wheat, Elm. Int. Law, 40-41- 42:

Puff., lib. 4, c. 9, 1. Shue “ap §§ 1, 2, 3; Vatt. § 98, p. 170; see the
<‘Hama,’’ 5. Rob, Ad. Rep.,. p. 114.)

Spain j is no more her antecessor, and she is no more the inheritor,
than Mexico and the other States, formerly provinces of Spain; and
Shelton’s Isle no more ‘‘ pertains’ to Venezuela than it does to ‘Cuba
or Puerto Rico.

VI. TITLE CLAIMED BY VENEZUELA FROM CONTIGUITY, ETC.

Shelton’s Isle is separated by several hundred miles of open sea from
her shores. She has no possessions near it. As before stated, it is
nearer those of at least three other nations, and in fact the Dutch
have possessions between it and the Venezuelan coasts.—(See maps
and charts generally.)

The locality of this isle, we conceive, destroys the probability that
as to it Spain was her antecessor as to ‘‘discovery’’ and as to occupa- ~
tion, or that either Spain or she ever exercised any jurisdiction over it.

The claim on the ground of contiguity is clearly preposterous, as on
the score of natural ‘‘increments’’ no right ‘‘pertains’’ to her on either
score.—(See 1 Phill., §§ 234-235, p. 248, § 239, p. 255; Vat., p. 128,
&c., §§ 289, 290; 5 Rob. Rep., 573, the Anna, Puff., Grotius, de Jure
Bel. ac Pac, lib. 2, c.3,§10; Vattel, lib. 1, ¢. 28, §§ 288, 296,.p.
127, &c.; see Bynk., Quest. Jur. Pub., lib. 1, cap. 8; De dom mar,
cap. 2.

VII. POSSESSION AND OCCUPATION MUST BE ACTUAL USE AND SETTLEMENT.

It must be pedis possessio, and coupled with positive exercise of
actual jurisdiction; merely hoisting national flag, planting crosses,
and such like ceremonies or surveys are.of little moment.

And the possession and occupation must be notorious; other nations
must have knowledge of the claim.—(See 1 Phill., § 241, p. 259;5.2b.,
§ 247, p. 263; § 248, p. 263; § 230, p. 246-7; Kliiber, § 126; Vattel,
§§ 141 to 146, pp. 187 to 190; ib., § 208-9, p. 100; Wallace’s Pamph.
on the Oregon Question; Bynk., de dom. mar., vol. 4, c. 1, p. 360;
Eug. Ortolan, dom. Int., p. 37; 8 Wheat., p. 573.

VIII. SUCH POSSESSION AND OCCUPATION MUST BE CONTINUAL.

It is not only true that discovery alone of such uninhabited isle
vests no title, (but an inchoate right to acquire one,) and that occupa-
tion by the discoverer is absolutely necessary, but it must be continued,
in order to maintain any title in the discoverer, or the State to which
he belongs, and the right of sovereignty or eminent domain in such
State, is inseparable from and dependent upon such actual occas —
(See 1 Phill. > § 230, -p. 246, § 283, p. 207; Grotius, lib. 2, c. 9, lib. 3,
c. 9,§ 9; Bynk., de dom. mar ; ee Ortolan, dom. Int. Vettel §§ 241
to 246, pp. 187 to 190, )

AVES ISLAND. AT
Ix. ABANDONMENT OF OCCUPATION AND USE DESTROYS CLAIM.

4

Of course this means a voluntary abandonment. The authorities
show that'if the occupation or possession is abandoned by the first dis-
coverer, or the exercise of jurisdiction discontinued by a State, any
subsequent discoverer may occupy and possess the abandoned and dere-
lict isle, and the rights of proprietary in him, and of sovereignty or
eminent domain in his State, vests from commencement of his occu-
pancy.—(See Vattel, supra, and other authorities last cited. 1 Phill.,
§§ 259, 260, pp. 279, 280, the case of the island Sé. Lucie, in 1754.)

In this case the English had abandoned the island, they said,
through violence. The French said the abandonment was amino et
facti and sine spe redeundi, and therefore France had taken possession
of it. It was regarded as a case of voluntary dereliction, and the
possession returned to the class of vacant and unowned territories. —
(See 1 Phill., p. 307, § 284.)

X. FACULTY OF ACQUISITION BY THE UNITED STATES OF SUCH ISLE BY DIS-
COVERY, ETC.

The federal government of the United States possess this faculty as
an inherent power necessary to it, and an attribute of every sovereign
State, and it possesses it equally and fully as any other sovereign power.

The Constitution contains no prohibition against the exercise of such
power. It is appropriate to it, and in the distribution of the various
powers between it and the State governments, unless it is impliedly
excluded, it is to be considered as possessed by the United States.—
(See U.S. vs. Canter, &c., 1 Peters, S. OC. R., p. 542, &c.; Vattel,
§ 4, p. 2, § 13, p. 3; Hlliott’s Debates, vol. 4, p. 207; Wheat., p. 45,
Elm. Int. Law, Ib., p. 210. Ib., p. 78, note; Story on the Constitu-
tion, vol. 3, p. 156, and the cases therein cited: New edition, § 1282
to 1289, § 1339.)

The acquisition of Louisiana, Florida, Texas, California, New Mex-
ico, and the Messilla valley, can only be sustained as constitutional
on such ground. The treaty-making power and the war-making
power were invoked to sustain these acquisitions, and it was contended
they were included in the legitimate exercise of those powers.

The legitimate exercise of those powers, thus construed, involves the
admission that the faculty of acquisition in any other mode, not for-
bidden by the laws of nations, or by the federal Constitution, is equally
possessed by the United States. No one will contend that there is
any illegality in the act of discovery or occupation by the United
States, of vacant lands, or a desert island, with respect to other na-
tions, that have no right thereto.

The question, therefore, comes back to the consideration whether
there is any prohibition in the federal Constitution.

And the power to regulate the intercourse with foreign nations,
commerce, navigation, &c., and to maintain and providea navy, &c.,
. may be invoked with equal force to sustain the faculty of acquisition,
by discovery, in the exercise of those powers, as the treaty and war

48 AVES ISLAND.

making power can be appealed to, to uphold an acquisition by purchase
and cession, or by conquest.

So can the power to admit new States be invoked, and there is no
distinction in the Constitution between new States formed out of Ter-
ritories ultra mare, on an isle or island on the high seas, and such
states created out of adjoining portions of this continent. The power
can be exercised as legitimately with respect to all the Antilles, or the
Sandwich Islands, as with respect to: Canada, or Mexico, or New
Albion.

Besides, the federal government of the United States, in its dispute
with Great Britain respecting the possessions claimed by both on the
Pacific, (Oregon,) presented and urged in the diplomatic correspond-—
ence, in executive documents, and in the debates in Congress, our
prior discovery by Captain Gray, master of a merchant vessel of Boston
in 1792, and Lewis and Clarke’s explorations in 1805-6, and occupa
tion under them of that region. ©

And in no American document on that subject, nor in any speech in
Congress, has any denial of this power of acquisition by discovery
been found.—(See Wheat. Jnt. Law, p. 229; Greenhow’s Oregon, pp.
418, 427, 449, 466, app; I Phill., p. 250, § 233, Ib., p. 247; British
State Papers, vol. xiii, pp. 506 to 509; Cong. Doc., 1st sess. 20th
Cong., No. 189.)

Voyages and expeditions for discovery have been several times under-
taken by the federal government; sometimes by previous authority
of Congress, by special appropriations for such objects, and sometimes
by the executive department alone, in the exercise of its authority
over the Army and Navy, without the previous express sanction of
Congress. Amongst them may be mentioned Lewis and Clarke’s
expedition to the Columbia river; Pike’s expedition; and Colonel S. H.
Long’s expeditions; and Colonel Frémont’s expeditions; Lynch’s
expedition to the Dead Sea; Strain’s expedition ; Herndon’s and Gib-
bon’s expeditions; and Wilke’s exploring expedition; Ringgold’s sur-
veying and exploring expedition; and Commodore Perry’s expedition ;
and the aid afforded by the government to different expeditions to the
north pole region. The history of our government is replete with such
examples.

Some of these expeditions were essentially voyages for discovery or
exploration out of the limits of the United States.

It is absurd to concede to the executive government constitutional
power to undertake them, and that such prerogative is a mere naked,
impotent or barren right, which can be productive of no results, beget
no direct advantages, and which is utterly barren of any fruits beyond
the credit of making such discoveries for the benefit of some other
nation.

The framers of our glorious Constitution did not certainly, in our
humble judgment, intend thus to emasculate the federal government,
and make us the only eunuch nation on the face of the earth.

History furnishes some rare examples, such as in China and Japan,
and the Germanic confederation, of the abnegation of sovereign rights,
but Vattel says ‘‘that a nation ought to act agreeably to its nature,”
&c., p. 3, §§ 13, 14, ef seg. (Droit des Gens.)

AVES ISLAND. 49

XI. IF FACULTY NOT IN THE UNITED STATES, IT REMAINS IN THE STATE OF
DISCOVERER,

If this faculty is not in the United States it must remain in the State
of discoverer, which in this case is Massachusetts.

The full attributes of sovereignty possessed by every independent
State are possessed either by the federal government or by the re-
spective States, for they cannot die, or be extinguished or alienated,
without the consent of the respective States, either impliedly or ex-
pressly given. The States possessed them originally. (See Vattel,
p- 30, §§ 60, 271; 1 Phil., p. 147, § 125; 4 Cranch, 212, McIllvane vs.
Coxe. .

It a not be appropriate to the functions of a State government
now to possess them. It would be inconsistent with other powers
delegated to the federal government for each State to possess them.
To allow a State to acquire territory in any mode would not be in
harmony with the principles upon which the federal Constitution was
based. It might be a mode by which the clause respecting the admis-
sion of new States could be evaded. For instance, Texas might find
it convenient to annex Tamaulipas; Maine, New Brunswick; Michigan
or New York, Canada; and Florida, the Bahamas and Cuba; and, if
the government and people of those countries assented thereto, this
might possibly be done by a mere act of the State legislatures, without
contravening that provision of the Constitution prohibiting the States
from making treaties and compacts, &c., with foreign nations and
among themselves, and thus extend their limits without restriction.

Article X of the amendments to the federal Constitution declares
that ‘‘the powers not delegated to the United States by this Constitu-
tion, nor prohibited in it to the States, are reserved to the States re-
spectively, or to the people.”’ .

If, therefore, the faculty and power in question has not been dele-
gated to the federal government, as contended, it is yet possessed by
each State, and the power to enlarge its boundaries ad libitum, in the
mode suggested, is still possessed by each, and in this case is possessed
by the State of Massachusetts, to which we, as well as Captain Gibbs,
belong.

This argument is used to show the effect and result of denying to
the federal government the faculty and power referred to.

But this is a question as respects our own laws, and with which no
foreign government can interfere. It is none of their business. We
can settle this question among ourselves and-by ourselves. Whenever
any difficulty arises, and even if a State has the right referred to,
when the claim of a foreign power is interposed, it is a constitutional
function, and it is the duty of the federal government to enforce such
right.—(See Vattel, lib. 1, c. 3, §§ 36; 37.) This authority is indis-
putable.

VII. EXECUTIVE MAY ENFORCE AND MAINTAIN PUBLIC AND PRIVATE RIGHTS
RESULTING FROM DISCOVERY AND OCCUPATION WITHOUT ACTION OF CONGRESS.

The faculty of acquisition by discovery being so possessed by the
federal government, no special act of Congress is necessary to enable

Ex. Doc. 10———4

50 : AVES ISLAND.

the Executive to exercise the acts necessary to give effect to such faculty, .
or to entitle the United States to the benefits, or to reap the fruits of
such discovery. It is appropriately an executive function and power,
-and from its nature and character does not call for previous legislation. —
(Attorneys General Opinions, vol. 1, cited, 1 Phill., p. 243.)

If diplomatic action, or any measures (except actual war) as toa
foreign State, is necessarily required for the maintenance and protec-
tion of the rights of the United States, or of a State, or of any citizen
thereof, (whether they result from discovery and occupation of an isle
in the high seas,) and in all cases the preliminary proceedings are an
executive function. The regulation of our foreign intercourse, and all —
diplomacy, is a constitutional executive function, and not a legislative
duty.—(See Kennett vs. Chambers, 14 Howard, p. 38; Wheat. Int.
Law, p. 35.)

Congress may not rightfully interfere with it, except by express law,
and cannot control it even then beyond certain limits. The Senate may
refuse to ratify a treaty, and both houses or either house may refuse to
vote appropriations; and in some cases it might be proper for Congress
to adopt advisory or directory resolutions, and in others condemnatory
resolutions; but in these last cases such action is not constitutionally
imperative in the Executive, and the constitutional propriety of with-
holding appropriations by the House has been strongly questioned.

The laws of nations are a part of the laws of the United States, which
the President has sworn to see are ‘‘faithfully executed.’’-—( Wheat. Int.
Law, p. 514.)

The rights of the United States, and of the discoverer who belongs -
to her, in virtue of such discovery and occupation of a vacant isle, are
founded upon the laws of nations, and the Executive is as much bound
to enforce and maintain them as he is to enforce and maintain the ex-
emption of our vessels on the high seas from visit and search, which
is also guarantied by the jus genttwm.—(Vattel, book 2, c. 6, § 71, p.
T6ase ioe libs 15 175 p. 5';* Toi p., 392; §' 2051)

XIII. THE NON-EXISTENCE OF ANY RESTRAINING OR DIRECTORY LAW LEAVES
PLENARY POWER WITH THE PRESIDENT.

The absence of any statutory prohibition or direction as to the course
to be pursued by the Executive is an implication that Congress intended.
to let the rights of the United States and of its citizens, resulting from
the discovery and occupation of a vacant isle, in virtue of the laws of
nations, to stand upon the laws of nations, and that the executive
maintenance and protection of those rights should be according to the
principles of international law. Any tetter or restraint upon the ex-
ecutive powers (admitting that Congress can impose it) must not be
implied. The intention to do ‘so must be manifested by express law
enacted in due form.—(As to President’s power, see 5 Wheat., app.,
Marshall’s speech; 1 Gallison’s Rep., p. 563; 3d vol. Opinions "Attor-
neys General, p. 28; 7 Howard, 1; 13 Peters, 498; 12 Wheat., 19;
9 Cranch, 126.)

AVES ISLAND. 5]
XIV. DISCOVERY BY PRIVATE CITIZEN VESTS RIGHTS IN THE UNITED STATES.

It is entirely immaterial whether such discoverer is a private citizen
or subject, or a commissioned officer of a State. The same rights, in
either case, vest in the State to which he belongs. Vattel only refers
to discoverers furnished with a commission from their sovereign; and
this was the British argument in the Oregon case; but the United
States do not hold to such opinion, and Great Britain has not always
held it. There are two cases of discovery and occupation by private
citizens or subjects, in merchant vessels, that are now recollected as
having been contended for as the foundation of right, one by Great
Britain and the other by the United States.

The first is the celebrated case respecting Nootka Sound, in 1790,
in which a Mr. Mears, a half-pay lieutenant in the British navy, out
of service, and sailing a Portuguese merchantman on a private adven-
ture, sailed to and occupied Nootka Sound, which, it was said, as well
from his discovery and occupation as from prior British discoveries,
belonged to Great Britain.

It will be seen by an examination of the Nootka Sound case, that it
resembles the present.closely. The place had been discovered and was
known when Mears occupied it. Spain had been its actual occupant,
but it had been abandoned. Some time after Mears settled there, a
Spanish vessel-of-war captured his vessels, and drove him away. The
vessels were, however, subsequently restored by the viceroy of Mexico.
Mears appealed to the British government for redress, and it was ren-
‘dered forthwith.

The promptness and energy of the British government in that case
affords a wise example for all other nations that have. the ability and
disposition to maintain their rights. (See British An. Reg., 1790, pp.
185, 305; Ib. 1791, pp. 208 to 227; ‘‘Gentleman’s Magazine,”’ 1790;
Greenhow’s Oregon, p. 446, and app.) :

The other case was the discovery, by Captain Gray, in 1792, of the
mouth of the Columbia river, he being master of a whale ship. He
was a citizen of the United States, and his vessel was an American
vessel, and upon his discovery and occupation, and upon continued
occupation by Mr. Astor’s employés and others, citizens of the United
States, the United States based its right to all that region of country.

It is true it contended for the right upon other grounds also, but
this specific ground was maintained, and Great Britain, then remem-
bering to forget the Mears case, and many other similar cases, ques-
tioned the principle, that the uncommissioned Yankee skipper of a
private merchant vessel could lay the foundation of such a right, and
Dr. Phillimore observes with no little naiveté, (vol. 1, p. 251,) ‘‘If the
circumstances had been, these, viz: that an actual settlement had been
grafted upon a discovery made by an authorized public officer of a
nation at the mouth of a river, the law would not have been unrea-
sonably applied.’’ § 236.

Other authors and statesmen have maintained the principle, that
- upon a discovery by a private citizen or subject, the same rights enure
to his State as if he was a commissioned officer, and no one has ques-
tioned the principle, that if adopted by his government by occupation,

52 AVES ISLAND.

under its authority, such rights enured as if the discovery was by an
officer. Even Dr. Phillimore acknowledges that adoption by a State,
on discovery by a private citizen,* (1, p. 242, § 224,) and he also ad-
mits that the ‘‘individual’’ has a natural title to be undisturbed in the
possession of the territory which he occupies, as against all third powers.—
(Ibid., p. 242.)

And if such discovery was of a vacant, uninhabited island, the occu-
pation and possession by such private citizen or subject, being necessa-
rily peaceful and unopposed, is to be considered that of his government.
And it is entitled to the same rights of sovereignty and eminent domain.
from the inception of his occupation, as if it was by express authority
and commission.—(See authority above cited; Vattel, §§ 203 to 209;
Ibias ib. 2, c. 7, §§ 96,97, 98.)

The cases upon the subject of captures by private subjects or citizens
of a Sthte, in time of war, of an enemy’s property, on land or on the
sea, wherein such private citizens or subjects are not expressly com-
missioned, nor otherwise expressly authorized to make such captures,
are pertinent to the point now under consideration.

By some eminent jurists it is held, that the public declaration of
waa is a sufficient commission and authority to every citizen or subject
of the power making it to capture the enemy’s property wherever
found, in the name of and for his government, and that his personal
interest therein is dependent upon the prize or booty acts of his State.
(See 8 Cranch’s Reports, p. 210, U. 8. vs. Brown; Vattel, lib. 3, ¢.
15, §§ 223 to 228 ; Ibid. § 164, p. 365, and § 202, p. 391, citing French
Law ; Kliiber, Droit des gens, § 267; Wheat. Int. Law, p. 430, §8; 2
Wheat’s Rep. app., note 1, p. 7.)

The question as to his private interest in the proceeds of the cap-
tured property is one of local and domestic law merely, and if allowed
no share, it neither impairs the right of his government nor the legal-
ity or validity of the capture. The right of the government enures
equally as if he were a commissioned officer, and the prize courts that
have denied his interest in certain cases, unless allowed by express
acts, have, nevertheless, maintained that of his government.—(See
Vattel, lib. 2,c. 2, §§ 96 to 98, p. 170; 13 Johnston’s Rep., p. 276; 1
Gall. Rep., p. 563; 2 Wheat., 76; 5 Ib., 338; 6 Ib., 1; 10 Wheat.,
506.)

XV. RIGHTS AND INTERESTS OF CITIZEN DISCOVERERS.

When the discoverer is a commissioned officer of the State, ordina-
rily, no private rights result to him, personally, from the discovery ;
but when he is not such officer, but a mere private citizen or subject,
he acquires a right of preéntry into property in the territory and ap-
purtenances paramount over that of any other subject or citizen of the
same State, and excluding positively all claims of any foreign subject or
citizen of any foreign State.

- We admit his personal right is subject to such general regulations
and restrictions as the laws of his State, then in force, or such special
regulations and limitations as his State may prescribe in respect thereof ;

*6 Rob. Rep., 364, Tie Rolla—a case of adoption of a blockade.

AVES ISLAND. 53

but without either such general or special regulations, his right of
possession of the land discovered by him, in a small and uninhabited
isle in the high seas, extends over the entire island so discovered, and
its appurtenances.

This is, however, a question between him and his own government,
and in this case Venezuela has no right to meddle in it.

In this very case the records of the department will show that it
has recognized and adopted the doctrine that the discovery and ocoupa-
tion by a citizen vests title; and it declared that ‘‘7f the authorities
of any foreign government should attempt to prevent or interfere with a
discoverer (though a citizen) in taking guano from the Aves Island,
they will be expected to assign sufficient reason therefor.’’ This declara-
tion, though made to parties not discoverers, settles two points: First,
the doctrine now contended for as to citizens; and, second, the adop-
tion of such discovery by the government—by the act of the Executive.

XVI. EXTENT OF OUR RIGHTS IN THE PRESENT CASE.

Insomuch as no restrictions or limitations exist by any law of the
United States as to our rights in this case, they extend to the whole
isle, and the guano upon it; and until the declaration or establishment
of limitations of such right by law of the United States, duly enacted,
or at least by executive authority, the federal government is to be
deemed as acquiescing and confirming them to their entire extent. This
is, however, a question in which Venezuela has no concern, (See Vat-
tel, lib. 2, c. 4, § 54.)

XVII. A DISCOVERER HAS NO RIGHT OR POWER TO ALIENATE RIGHTS OF HIS
STATE, OR HIS OWN, TO FOREIGN POWERS, AND ADMISSIONS BY HIM TO
SUCH EFFECT ARE OF NO FORCE.

A discoverer has no right or power to alienate, or transfer, by his
personal act, the rights of sovereignty or eminent domain acquired by
his State, and vested in it by his discovery and cccupation, and such
act is illegal and utterly void.

And a fortiori, no admission, or connection, or compromise by such
citizen or subject can affect the rights of his State, so acquired, and
vested by his discovery and occupation as aforesaid; and that, without
express authority of his government, he is incompetent to relinquish
his own rights and: possession (those of his State being based upon
them) to any foreign government whatever. (See Bard., p. 239.) Indi-
viduals cannot prejudice rights of States by their acts. (Vattel, lib.
meat, § 260) peeige Ub. lib. 1,:c. 21, § 261; 2 Phill), p. b2.°§ 49);
1 Ibid., pp. 145-6, §§ 122-3; Bynk., p. 223, § 239.) Individual has no
power to alienate or impair in any mode public property or rights. (Puff.
lib. 3, c. 7, ar. 11, p. 334.) ‘‘Subjects cannot contract, either among
themselves or with others, and prejudice the duty and allegiance they
owe to their lawful sovereign.’’ (Note in supra from Grammond’s
Hist. Gal., 1. 5.)

As to admissions, three cases are recollected that are somewhat per-
tinent. On the 25th of December, 1814, Mr. Gallatin, United States

54 AVES ISLAND.

commissioner at Ghent, wrote to the Secretary of State, making ad-
missions against the title of the State of Massachusetts to territory on
her northeastern boundary. His letter was published, and the British
government afterwards brought it up against the United States in the
arbitration before the King of the Netherlands. (See letter, p. 24,
British statement, note; and see also Mr. Gallatin’s reply, in the most
sarcastic style and severest terms, pp. 94-5, Am. statement.)

It is worthy of note, also, that in this reply Mr. Gallatin denies the
right of the federal government to cede any portion of the territory of
a State. (See Northeastern Boundary Document, cited above.)

Another case was when Mr. Pinckney, our minister to Spain, in
179-, made an admission with respect to the boundary of Louisiana
and West Florida, which Mr. Pizarro, Spanish Secretary of State,
cited to Mr. Erving, our minister, in 180-. Mr. Erving replied that
the admission was of no validity, being his own opinion merely, not
authorized by the government to be made, except upon terms of ad-
justment then proposed and not accepted, and therefore was of no
force.

The third case was that of Mr. Andrew Ellicott, United States com-
missioner to run the boundary between us and the Spanish provinces
under'the treaty of 1795. He made an admission respecting the same
boundary between Louisiana and West Florida, which was also cited
against us by the Spanish government; the reply to which was, that
he was not authorized to make any such admissions, and that it was
his mere private opinion, and was of no consequence. (See Am. State
Papers, Tit. Foreign Relations, vol. 3, p. 520, &c.; Bynk. as to Spon-
sio, p. 223, and Wheat. Int. Law, p. 322, &c., and p. 329, (citing
Ulpian;) Wheat. p. 473, § 24. Even in time of war the commander
of a fort cannot stipulate for its surrender and perpetual cession—
Vaitel, lib. 5, § 156, p. 193; Kliiber, § 142.)

We have a statute prohibiting a citizen from negotiating, corre-
sponding, &c., with foreign governments on diplomatic subjects. (Act
of June 30, 1799, 1 Statutes at Large, p. 603.)

VXIII. MISREPRESENTATION AND FRAUD VITIATE ALL CONTRACTS, ETC.

Misrepresentations and fraud in all cases, either between individuals
or between an individual and a government, vitiate contracts, agree-
ments, &c., and destroy the effect of acts or admissions procured from
an individual thereby. (See Vattel, lib. 2, c. 12, §§ 157-89 ; Kliber,
§ 143; Schmalz, Hurp. Volks R.v. pp. 53, 54; Grotius, lib. 2, ¢. 1%,
§§ 18, 19.)

Signature to a written promise or agreement, written in a foreign
language, and obtained by misrepresentation of its purport, is void, in
all cases. |

‘¢ Consent must not have been given in error, or produced by deceit,
either by misrepresentation (suggestio falsi) or by concealment of im-
portant facts, (swppressio vert.’’) 2 Phill. § 49, p. 62. (See Puff.,
p: 22, lib. 7, tit. 6; Ibid., p. 30, lib. 3, § 13; 8. 2, p. 227, lib) aie.
6, § 6, 7; Ibid., p. 280, §§ 7, 8, p. 281, notes 1 & 2; Story’s Comm.
on Eq., § 201, citing several cases.)

AVES ISLAND. 55
XIX. MISTAKE OR ERROR VITIATES CONTRACTS, ETC. ; IF MATERIAL.

If the ‘“‘agreement’’ is not void on the ground of fraud by Dias in
obtaining it, it should be disregarded, and the admissions of Gibbs and
Lang thereon made should be disregarded as of no force, on the ground
of mistake or error by them, as well in respect of the admission of
their authority as agents to make such admissions or agreements, as
also with respect to the title of Venezuela, and their relinquishment
of the isle, guano, and other property to her.—(Rep. Temp. Hard., pp.
281-3-4-9, Gray and Baker.)

XX. MISREPRESENTATION AND FRAUD BY A GOVERNMENT IN TRANSACTIONS -
WITH INDIVIDUALS, VITIATES CONTRACTS.

In cases of fraud, governments or princes are no exemption from
the general rule. The misrepresentation and fraud is, of course, in
every case of such character, practiced by their officers and agents, for
whose conduct the government is responsible.—(See authorities above
cited.

Proud is a canker that affects the contract and vitiates it, whoever
the party perpetrating it upon the defrauded party. It destroys the
contract, and makes it a nude pact, or no obligation or promise. What-
soever it touches it kills.

XXI. CONSTRAINT OR COERCION BY MENACE OR THREATS OF A GOVERNMENT OR
ITS OFFICERS DESTROYS CONTRACT OF AN INDIVIDUAL.

The rules of common law as to ‘‘duress,’’ in contracts between
individuals, apply with greater force to those made with governments.
(See Phill., last above cited, and other authorities sup.)

Admissions, relinquishments, concessions, or other acts, or a decla-
ration of consent obtained by a government or its officers, from an
individual by coercion, or constraint, or by menace or threats of such
government, or its officer, is, in no case, valid. The idea that fraud,
coercion, or constraint, is not to be imputed to a government founded
upon the false maxim of monarchists ‘‘the king can do no wrong,”
is not admitted to be law, The fact is unquestionably the reverse.

Kings and governments are not exempted from the effect of the fall
of man. Both are mere human institutions, and ‘‘man is prone to
error as the sparks fly upwards.’’—(See Joz v,7; see history of all usurp-
ations and wars from the time of David down to Louis Napoleon.)

Contracts made under duress are void, because they are not volun-
tary.—(See Roll. Abr. p. 688, Black.’s Comm.; Pothier on Contracts,
Story on Hquity, § 201, and cases there cited.)

Duress, as defined by the common law, especially in the early cases,
was being in fear of bodily harm, imprisonment, and the like, from
threats or menaces, or being then imprisoned; and apprehension of
loss of property merely was not sufficient.—(See cases above cited.) In
ease of treaty, personal fear of actual violence by the representative of
a State negotiating it, voids the treaty.—(Phill., p. 63, § 49; Wheat.
Int Law, 331.)

56 AVES ISLAND.

This strict rule, as just observed, is not adhered to in modern cases,
but it is now generally held both by the civil and common law that
any undue constraint operating upon the mind and will of a prudent
man, though he may not be put in bodily fear, renders the act not
voluntary, and vitiates it.—(See Kent’s Comm., part 5, § 39, and cases
cited ; 16 Vesey, p. 159; 1 Ibid., jr., p. 22; 16 Vesey, p. 159; 11 Ibid.,
p. 649; 1 Jacob and Walker, p. 96; 14 Vesey, p. 259; 2 Coke’s Inst.,
5 Rep., p. 149.)

In the case of a government the rules should be still moré extended,
by reason of the fact that the very demand by a government, made
through its officers, carries with it, to all law-observing men, the con-
straint of obedience. When such demand is imperative, backed by —
an armed naval and military force, commanded by a military and
naval officer, and accompanied by threats and menaces, stated to be by
order of the government, an act, agreement, contract, concession, re-
linquishment, or admission obtained thereby from the citizen or sub-
ject of another government, is void and of no force, as being given
under duress. The law of individual contract applies to it, though it
cannot be asserted as a well settled principle that a nation can plead
duress.—(See Wheat., p. 324; Kluber, § 142.)

It is sufficient if the party is constrained by apprehensions of the
power of such government being exerted to the injury of his rights
or his interests, in respect of property, the subject of contest, though
such apprehension may not extend to bodily harm to himself.—(See
Puff., lib. 3,:c. 6, § 9, p. 281; § 10, note 3, p.'285, cites! Platoeniae

If he is constrained by apprehension or well founded belief of colli-
sion between such armed force and himself, or individuals associated
with him, and that personal injury may result to any or either side,
or that he may have imposed upon him the necessity of forcible re-
sistence to such governmental authority and officers, and military force
under the command of such officers, and may be obliged to overcome
and capture such force, to do which he possesses the ability; even such
constraint nullifies his acts of concession and his admissions, as not
being voluntary.—(See Puff., lib. 22, &c., before cited, and ut passim.)

Besides, it is the duty of every law-abiding subject or citizen, en-
joined by the principles of the laws of nations, ordinarily in such
cases to yield to the demands of such foreign government, and if he is
wronged, to appeal to his own government to obtain him redress.

It is upon this principle that it has been held that the hostile rescue
by a neutral crew of a neutral vessel, captured in time of war by one
of the belligerents, though the vessel may not be a good prize, if re-
taken again by captors of the same power, it is liable to confiscation
for such recapture by the court of the belligerent power.—(See Wheat.
Int. Law, p. 455.)

The neutral resists at his peril, and such resistance has been held to
divest him of his immunity from capture as aneutral. This is at least
the British doctrine, though it may be questioned.

In this case, the intrusion of Venezuela by an armed force, and our

on was in time of profound peace between the two governments.
Y Tesistance our employés could, doubtless, at the risk of bloodshed,
have overcome and made prisoners Dias, his vessel, and his whole

AVES ISLAND. 57

force.” By refusing the provisions and water, in a few days we could
have starved them out, in all probability; but we were not only not
bound to adopt any such means of resistance, but, on the contrary, it
was our duty to limit our opposition to remonstrance and protest.
Vattel says, § 223, p. 399, that the unexpected attack of foreigners
may be repelled on the ground of self-defense; but they are advised
not to commit hostilities, even in time of war, without a commission,
And if to keep the peace, prevent probable bloodshed, or injury to
our rights and interests, either with respect to our vessels, their car-
goes, the isle, the guano thereon, or our other property there, or the
welfare and safety of our employés, our agents were constrained to
yield, as they did, their acts do not impair, or compromise, or weakeny
or prejudice, or militate against our original rights because of such
restraint. (See Vattel, § 325, p. 275; 9 Cranch, 55.)
_ The intended effect of Dias’s acts and the legal effect of his acts are
the same—constraint of Gibbs, &c., and thereby his concessions were
not voluntary.

XXII. ADMISSIONS BY AGENTS.

Admissions or agreements of an agent beyond the scope of his au-

thority and its objects, and also sale, transfer, or relinquishment, or an
extinguishment, or concession, or admission by an agent, cannot be
allowed to destroy his principal’s right to property intrusted to his care
and management; and acts destroying or relinquishing such right or
‘compromising it upon inequitable terms, are prima facie to be regarded
as made without authority of his principal, and do not bind him. (See
2 Phill., p. 63, § 49, citing Vattel, lib. 2, c. 12, § 158; Wheaton, p.,
332, § 8, citing Hd. Review, No. 154, ar. 1; Grotius De Jure Bel.,
lib. 2, 14, §§ 4, 12; Martens Précis, lib. 2, c. §§ 50, 52; Lee vs. Mun-
toe, 7 Cranch, p. 366; Wilson vs. Turner, 1 Taunton, p. 398; Puff.,
lib. 3, c. 7, ar. 11, p. 304; U.S. vs. Gooding, 12 Wheat., p. 460.)

No admission by an individual of a thing, of the truth of which,he
is not necessarily cognizant, and as to which he has no peculiar means
of knowledge, though he ‘be an agent, is not conclusive in any case,
and if incorrect—as is the fact in this case—it is of no force or effect
whatever. (See General Ins. Co. vs Ruggles, 12 Wheat., p. 408; 1
Domat, p. 425, ch. 3, ar. 1, § 1186 to 1192; Ibid., p. 427, § 1146, §
1154.)

- And this is so, whether as respects his own rights, or the rights of
others. With regard to the rights of others, if of matters of fact, such
admissions are considered as mere hearsay. They are never noticed;
are not competent testimony either by the civil or common law, and
whether oral or in writing; and if matters of law, or matters of fact
and law mixed, as in this case, they are of no weight whatever.

If such agent knows any facts, he must be adduced as a witness by
the party claiming under his acts, or seeking the advantage of his
admissions. ‘This is the law in cases between individuals, and it applies
to governments. (See 10 Vesey, pp. 128, 763; 1 Taunton, p. 398,
Wilson vs. Turner.)

The power of a proxy or agent must be limited by reasonable pre-

58 AVES ISLAND.

sumption of principle and objects. (Domat, article 1186, 1146, &c.
General power not sufficient for alienation.)

_ If a party, whether a State or an individual, claims under acts. or
admissions by one said to be the agent of an adverse party, he must
give distinct and unequivocal proof of the authority to do the act, or
make the admission ; and such authority is never to be implied. (See
Story on Agencies, § 116; Smrru on Contracts, p. 347.)

Especially is this the law in a case of total alienation or relinquish-
ment by an agent, of the property of his principal to such claimant,
or as to admissions of a general character going to destroy his prin-
cipal’s rights, as such acts and admissions are inconsistent with the
general delegation to use the property beneficially for his principal,
and are ordinarily deemed invalid for want of authority, if full and
special authority is not proved; and if in any degree inequitable, or
made without equivalent received for his principal, will be deemed
collusive and fraudulent, and void 6n that account. (See Smrra on
Contracts, by Rawin, p. 347 [249] citing many cases; see also Patter-
son vs. Tash, 2 Strange, p. 1178 ; Daubigney vs. Duval, 5 Term, 604;
Martini vs. Coles, 1 Man., &., p. 140-493; Graham vs. Dyster, 6
ad., p. 114; Quioroz vs. Freeman; 3 Barn. & Cress., 343; Fielding
vs. Kymer ; 2 Brop. & Bine., 639. Such is recognized as the rule on
this side of the Atlantic. See cases cited in Sirs, supra.)

In this case there was no equivalent or consideration for the alleged
agreement. The pretended consideration or permission to stay aslong |
as Dias or his government would allow them was a mockery. (See’2
Phill., p. 63, § 49.)

The agreement shows that it is a clear case of lesion, as well as con-
straint, and not reciprocal.

The permission to load these vessels was equally trifling, and its
value depended upon the title of Venezuela, which is denied; and
besides, these vessels did not load, and could not load, before they
were ordered off peremptorily upon a few hours’ notice.

These facts show that the ‘‘agreement’’ was not only in the incep-
tion, but in the end, a trick and fraud, ‘‘ made to delude, and purposed
' to deceive.’’ y

The power and authority must be exercised according to the inten-
tion of the constituent. General procuration or agency is not sufficient
for alienation of property the agent was to preserve, nor for a recission
of contract he was to execute. (Corp. Jur. lib. 25, lib. 60, D. de
Procur. lib. 63, eo. ; Master of vessel restrained to incidental power
relating to ordinary employment of ships; Story on Agency, p. 35.)

XXIII.—CAPTAIN GIBBS’ AGENCY.

He went out as master of the brig J. R. Dow, and staid out on the
isle as general agent to gather and ship guano from thence. (See in-
structions. ) ‘

He was not, whilst there,.master of any of our vessels. As such
general agent as aforesaid, he had no authority to relinquish or alien-
ate the isle or guano, or to impair, or destroy, or weaken our title
thereto, in any wise.

He was expressly prohibited from so doing, and instructed to resist
certain anticipated intrusion by certain governments, specifically

AVES ISLAND. 59

named, by force; and with respect to others not named, among
which was Venezuela, he was instructed not to yield possession till
they resorted to actual force, and made prizes of his vessels; and that
he must resist to the extent of imposing such necessity upon them
before he allowed them to evict him. (See instructions in letter of
20th June.

He had no authority as master of a vessel whilst there. (See Story
on Agency, § 116, p. 139, and cases cited; Abbott on Shipping, p. 69,
c. 3, § 2, and cases.)

Tt cannot be contended that any one at the isle had any authority,
express or implied, from the government of the United States, to do
anything in the premises. .

No authority by us to relinquish the rights of the United States
would have been valid if we had given it, and this for the reasons
before stated. (See ante, xvii.)

Lang was no agent of ours—was an interloper—hostile to our
interests; had intruded in violation of our just rights, upon the dis-
closure of Wheeler as to the discovery, and was suffered to remain
because we could do no better without violence.

XXIV. THE DIAS CAPITULATION OBTAINED BY THE COMPOUND MEANS OF MISREP-
RESENTATION AND FRAUD, AND CONSTRAINT, OR FORCE OR ‘‘DURESS.”’

1. Misrepresentation and frqud.—Captain Safford’s deposition is con-
clusive on this point; itis annexed, marked A. He says, Dias ‘‘landed
an armed force and took possession of the island.’’ He says, Dias
- “hauled down the American flag, and hoisted the Venezuelan flag in its
stead.’ He says also that at the same time Dias threatened the 1mme-
diate expulsion of all the Americans on the island. This was on the
13th of December. He says, ‘‘finally, that the said Captain Dias
drew up a document in Spanish, which he said was a permit for them
to continue to load guano, provided they placed their armament under
his control. I was present when the purport of said document was
explained to Captain Gibbs, (who did not understand Spanish.) As
explained it was simply that Gibbs and Lang were to assist the gar-
rison left on the island with provisions and water, and the most posi-
twe assurances were given them that the document contained nothing
whereby they assented to the title of the island being in Venezuela. I am
POSITIVE On the point, as Captain Gibbs asked My opinion in reference
to it. And I further certify that said Dias insisted that, unless they
signed said document, they must leave the island forthwith. Captain
Gibbs, under the circumstances, felt compelled to sign the document,
hoping, by so doing, they would allow him to load the vessel there,
and those expected, saying to me, that if the document contained any-
thing different from what had been explained to him, he did not sup-
pose a paper signed under such circumstances could be considered as
of any binding force.”’

Other depositions have been filed by other parties, but we do not
present them or rely on them at present. The ‘‘agreement,’’ upon
its face, is stamped with the characteristics of fraud.

Its being written in Spanish, no written translation being given by
Dias—the certificate or permit given by him to Gibbs and Lang not

60 AVES ISLAND.

being signed by any person but himself, though written as if Gibbs’s
and Lang’s signatures were to be affixed—and all the circumstances
about it, indicate fraud, if we had not produced this direct and un-
equivocal proof by a respectable and impartial witness.

The character of the stipulation is, of itself, evidence of fraud or of
force being used, or of both combined, to procure the signatures of
Gibbs and Lang. Gibbs did not understand Spanish ; and if others
besides Dias, deceived him as to the contents of the paper, it does not
strengthen its validity.

It may be observed that the inconsistency of this document with
Captain Gibbs’s instructions, and with his bounden duty, and with his
fidelity, which is unquestioned, are strong circumstances, if not suf —
ficient of themselves to justify the charge of fraud, to corroborate and
confirm the direct testimony on that point.

2. Constraint and force, or duress.—The testimony of Captain
Safford is equally conclusive on this point. Duress, according to the
common law definition—that is, threats of imprisonment or other
bodily harm, or putting a party in fear, &c., may not be proved, nor
is it necessary that it should be, as we have shown, (see xxi, supra,)
but that constraint was induced by Dias being the officer and repre-
sentative of a government.

XXV. THE ONUS PROBANDI AS TO THE TITLE RESTS ON VENEZUELA.

We were in peaceable possession, and the isle was invaded, and we
were ejected by armed force whilst in the enjoyment of that occupation. —
We had been notoriously in possession for several months, the Amer-
ican flag had been flying there during all that time, American vessels
had been continually there, lading guano, and voyaging from thence
to the United States and elsewhere.

Right of possession is sacred.—(See Vattel, p. 168, §§ 88, 90; 1
Phill., p. 272, § 253.)

_ No admissions or acknowledgments of agents without authority to
make them, or relinquishments, equally invalid for the same cause,
as well as others, should not exonerate Venezuela from the duty of
producing, on demand by the United States, the full original proofs
of her title, upon which she tortuously assumed such possession, and
evicted us. If those admissions are of any validity, the rule is the
same; and, indeed, between sovereign States, the honor of the State,
outraged by such forcible invasion, demands that the statu quo ante
bellum (for it was an act of war) should be restored, and indemnity
made, and apology given, before any discussion of title can be enter-
tained.—(See Vat., lib. 2,c. 18, § 337.)

Possession is prima facie evidence of title.

XXVI. VENEZUELA BOUND BY THE CONSEQUENCES OF THE FRAUD AND MALCON-
DUCT OF HER OFFICERS, AND, HAVING AVOWED THEM, CANNOT HEREAFTER
CHANGE THE ISSUE.

Venezuela is estopped by the acts of her officers, having adopted
them. She adopted them by producing the agreement or capitulation
of Dias.—(See Vattel, p. 160 to 163, lib. 2, c. 4.)

She is responsible for the deceit, misrepresentation, falsehood, and

AVES ISLAND. 61

f
fraud, as well as force and constraint, or duress, by which that paper
was obtained ; especially as upon its face, upon the first blush, these
characteristics are manifest. She must have known of them, for its
very form and stipulation are circumstances pregnant with fraud and
force. ;

The fact that she has chosen to rely upon the capitulation and the
admissions therein, instead of giving proof of her discovery and actual
occupation, is suspicious.

And if anything else was wanting, the official report of Dias, of his
exploit at Shelton’s Isle, in the guano war, of his victories on that
bloody field of arms, of his capture of our artillery, of his contribu-
tions levied upon us for provisions and water, of his hauling down the
Yankee flag (if we could procure a copy) would be conclusive.

We have called the isle a bloody field of arms, not because any
American blood was spilled there, but on account of the felo de se of
a Venezuelan soldier, in the feu de joie by which the hoisting of the
Venezuelan flag was saluted.

We trust a copy will be procured by opr minister, as we learn that
it is an interesting historical document.

XXVIT. FORM OF RELINQUISHMENT BY AGENT IMMATERIAL.

It is of no consequence what the form adopted, except in so far as
its form and contents indicate its character, and the means adopted to
obtain it. A parol relinquishment or verbal admission, if otherwise
unexceptionable, would have been as valid as if the form of a public
treaty by national representatives had been adopted; or if Gibbs had
executed a deed of indenture, or deed poll, or technical release in due
form of law, signed, sealed, delivered, and acknowledged before some
judicial functionary, it would have been of no more force than mere
tradition of the personal property yielded up, or the manual delivery
of the vessels and artillery, and verbal acknowledgment of right and
title in Venezuela.

All such acts would have been equally void. All such admissions,
whether written or verbal, are ineffectual to impair our rights.

A convention or treaty between States may be by parol.—(2 Phill.,
pp. 63, 64, § 69; Kliiber, § 1413.)

All that is necessary is, that the declaration should be positive and
clear. The consensus jictus of the civil law is unknown to national
jurisprudence.

‘We have before urged that the form that seems to have suited Com-
mander Dias’s fancy, that of a military CAPITULATION by an agent and
employé without the honors of war, (the United States flag having
been forcibly hauled down by Dias on his storming the isle, their
artillery and armament demanded, and themselves obliged to engage
in aid of the Venezuelans,) is significant of the force and coercion em-
ployed by Dias, and the constraint, ‘‘under the circumstances,’’ which

- induced Gibbs to take the permit, (with the misrepresentation and
fraud also practiced,) and to yield his signature to that capitulation.

62 AVES ISLAND.

XXVIII. INSULTS TO THE UNITED STATES BY VENEZUELA, AND OUTRAGES UPON
OUR PERSONS AND PROPERTY, IN THIS CASE, A JUST CASUS BELLI.

It is forbidden by the laws of nations for one State to attempt to
tamper with the citizens or subjects of another, not authorized by their
State to do the act sought to be obtained.—(See Vattel, lib. 1, c. 4,
§ 75, p. 83; Ib. lib., 2, ¢. 4. § 54, p. 154; Thompson vs. Powells, 2
Simon’s Rep., p. 294; Taylor vs. Barclay, Ib. p. 213; United States
vs. Palmer, 3 Wheat. Rep., p. 610; ‘‘ Santisima Trimdad,’’ 7 Wheat.,

. 283.

x Hiepecially is it an affront to the United States, and an act forbid-
den by the jus gentium, for a State to arrange with a private subject —
or citizen in respect of his possession of discovered territory, or his
rights thereto, in order to impair or defeat the rights of the United
States so acquired and vested. It is seeking to withdraw them from
their rightful allegiance and loyal duty. (See Vattel, lib. 2, ¢. 4,
pp. 160-1, §§ 71-2, &c; Ib., lib. 2, c. 4, p. 154, § 54 and supra; Ib.,
lib. —, c. 18, p. 374, § 332, &e.), .

The resort by Venezuela, without notice to the United States, to
armed force, to oust us from the peaceful possession of Shelton’s Isle,
-assumed peacefully and enjoyed uninterruptedly by us, after the dis-
covery of guano thereon, and the hauling down the United States
flag, without having previously applied to the federal government,
was an outrage upon and an insult to the United States, and it should
demand prompt reparation and atonement; and this demand should
be made, and compliance with it insisted upon, as a preliminary or
proemial condition, before considering the question of title. (Vattel,
pp. 575-6, before cited.)

This atonement and reparation should be—1. Restoration of isle to
status quo ante the eviction; 2. Indemnity to us for our damages;
and 3. Apology to the United States, and saluting our dishonored
flag, as we did the Spanish consul’s at New Orleans, and as France
insists we shall do to the French consul’s at San Francisco. |'This is
the precise course of the British government in the case of Mears at
Nootka Sound, and to which Spain was constrained to accede, to
avoid war. | ;

And in Mears’s case, too, it is questionable if the ships seized by
Spain were not Portuguese, though the British flag was used; and in
that case, also, the ships had been given up by the Mexican Viceroy
on the Pacific coast before the demand was made. (See Greenhow’s
Oregon, p. 466 and app.; see British An. Reg., 1790; ‘‘Gentleman’s
Magazine,’’ 1790; ‘‘ British State Papers.’’)

Many similar instances can be referred to in the history of nations
within the past century.

See the case of the Falkland Islands;* its seizure by Hngland

*Discovered by Davis, Hawkins, et al., about the close of the 16th century. “English,
French, and Spanish settlements made simultaneously in 1763. Spain then purchased French
claim and dispossessed England forcibly from port, and afterwards abandoned the island.
English flag rehoisted, but subsequently abandoned. France and Spain acknowledged her
right of sovereignty in 1774. In 1825, Buenos Ayres founded acolony under Durbein Vernd,
who seized two American schooners sealing. His settlement destroyed by United States
ship Lexington. The British government resumed possession in 1833, contending it had
only been suspended. In 1845 incorporated by royal charter as British colony.

AVES ISLAND. 63

during last century, and also recently, in violation of national law,
and the discussions upon that subject, in illustration of the true prin-
ciples of international law, violated by the British in both instances.*
(See Wheat. Int. Law, p. 220.)

Shelton’s Isle being a desert and uninhabited isle in the high seas
upon its occupation and settlement by us, and our ships being there
with the flag of the United States, and that flag being raised on the
isle as an emblem of its sovereignty connected with such occupation,
the isle became subject to the jurisdiction of the federal government,
and subject to its laws, the same as were the vessels of the United
States there; and any crime, (murder or robbery and the like) com-
- mitted upon it—certainly by any American citizen—would be punish-
able by said laws in the federal courts of the United States.

We conceive, also, the commission of a crime on the isle during that
time, if by a foreigner, would likewise be punishable by those laws
and by the same courts. ;

The fact that we were, at the time of the invasion of Dias, in full
possession, and in the actual and peaceful occupation of the isle, and
had been so for months before the outrage, and that.it was notorious,
and that no remonstrance was made by the Venezuelan government
to our minister to that republic, or through their agent here, or other-
wise to the United States, grossly aggravates the insult and outrage
perpetrated by her authority—expressly avowed by her by the pro-
duction of the Dias capitulation. And it is no palliation of this indig-
nity, or excuse for this unjustifiable and hostile act, that it may have
been stimulated by a combination of speculators, even though some
were citizens of the United States; but, in truth, such circumstances
heighten the enormity, and add to the effrontery of her conduct.

The duty of the United States in such case is laid down in the fol-
lowing cases:

Vattel pre. p. lv, note 1; also lib. 1, c. 23, § 283, p. 126; lib. 2
c. 2, § 24, p. 144; §§ 65 to 70, pp. 160-1; lib. 2, c. 18, pp. 275-6,
§§ 323-8, pp. 279-80, §§ 332-3-4, p. 281 §§ 339-40.

XXIX. DAMAGES AND INDEMNITY.

With regard to our damages in this case, as heretofore presented,
they are in no degree supposititious or hypothetical, or what are gen-
erally called incidental, consequential, or indirect damages. They
are positive, certain, readily ascertained and liquidated, and immediate
and direct:

1. The asportation and the detention of our personal property.

2. The loss by false freight, demurrage, and expenses of our vessels.

3. The obstruction to the labor and employment of our workmen at
the isle, taken and sustained there at great expense.

4, Expenses of procuring redress, and interest or augmented damages
for delay.

_ 5. And further, we claim the actual value of the guano at the island

*See Dr. Johnson’s Works, vol. 12, p. 123 7 Phill., § 246, p. 262.

64 AVES ISLAND.

at the time of the aggression, deducting only that which may remain
there when the possession is restored to us.

We have evidence that since that time numerous vessels have been
employed in carrying it off, under the authority of the Venezuelan |
government, upon payment of what is styled a ‘‘royalty,’’ or under
some contract with that government.

We are not bound by any improvident contract or arrangement that
Venezuela may have made in this regard as the limit of our damages ;
but, on the other hand, she cannot refuse to yield the full amount she
has herself thus estimated the guano to be worth to her at the island,
aud in addition, such sum as we may prove that it was worth tous.

She is bound to yield up at least the estimated fruits of her contract
to the Philadelphia speculators, even though such estimates may not
have been realized by their bad faith.

And again, we contend that in addition to these certain damages,
we may justly claim of Venezuela, as indemnification for her tortuous
outrage and wrong committed upon our rights and property, all the
profits we should have probably made by the shipment and sale of the
guano, if they had not molested us.

And in addition to this, we claim, also, that evenhanded justice
demands that they should indemnify us for the embarrassment in our
business and to our credit, and the consequent losses we have incurred,
which every merchant can understand and appreciate, and which we
are prepared to show are of no trifling amount or moment; not merely
has our prosperity been jeoparded, but it is yet uncertain whether it
may not result in consequences still more serious ; all the result of her
unjustifiable tort.

Our only hope of redress is in the action of the President and your-
self. And we have full confidence in the fulfillment of that pledge he
made to the American people on the 4th of March, 1853, that ‘‘ THz
RIGHTS WHICH BELONG TO US AS A NATION ARE NOT ALONE TO BE REGARDED,
BUT THOSE WHICH PERTAIN TO EVERY CITIZEN IN HIS INDIVIDUAL CAPACITY,
AT HOME AND ABROAD, MUST BE SACREDLY MAINTAINED.’ * * * ‘* Hx
MUST REALIZE THAT UPON EVERY SEA AND UPON EVERY SOIL WHERE OUR
ENTERPRISE MAY RIGHTFULLY SEEK THE PROTECTION OF OUR FLAG, AMERICAN
CITIZENSHIP IS AN INVIOLABLE PANOPLY FOR THE SECURITY OF AMERICAN
RIGHTS. ”’

With this we shall be satisfied.

a

Boston, June 20, 1855.

I, Josuua F. Sarrorp, hereby certify, that on the 13th day of
December, 1854, I was master of the bark Carlo Manaran, laying at
Aves or Bird Island, in the Caribbean sea, loading guano, shipped by
Captain W. N. P. Gibbs, for account of Messrs. Sampson & Tappan
and Philo 8. Shelton, of Boston. That on the day above named a
Venezuelan schooner-of-war, commanded by one Dias, arrived at the
island and landed an armed force, and took possession of the island,

AVES ISLAND. 65

hauling down the American flag and hoisting the Venezuelan flag in
its stead, at same time threatening the immediate expulsion of all the
Americans on the island. Finally the said Captain Dias drew up a
document in Spanish, which he said was a permit for them to continue
to load guano, provided they placed their armament under his control.
I was present when the purport of said document was explained to
Captain Gibbs, (who did not understand Spanish,) as explained, it was
simply that Gibbs and Lang were to assist the garrison left on the
island with provisions and water; and the most positive assurance
was given them that the document contained nothing whereby they
assented to the title of the island being in Venezuela. I am positive
on this point, as Captain Gibbs asked my opinion in reference to it.
And I further certify that said Dias insisted that unless they signed
said document, they must leave the island forthwith. Captain Gibbs,
under these circumstances, felt compelled to sign the document, hoping
by so doing they would allow him to load the vessels there and those
expected, saying to me that if the document contained anything differ-
ent from what had been explained to him, he did not suppose a paper
signed under such circumstances could be considered of any binding
force.

J. F. SAFFORD.

CoMMONWEALTH OF MASSACHUSETTS, ee
Suffolk County, ;

Then the above named J. I’. Safford personally appeared and made
oath that the foregoing declaration by him subscribed is his free act and
deed. Before me,

CHARLES HOMER,

Justice of the Peace.
Boston, June 20, 1855.

B.

I, James Wheeler, hereby certify, that I was, in the early part of
the year 1854, in the employ of Messrs. Sampson & Tappan and Philo
S. Shelton, of this city, collecting guano on an island in the Gulf of
Mexico; that some time in the month of March, in said year, Captain
Nathan P. Gibbs arrived at the island in the brig ‘‘ John R. Dow,”’
and informed me that, by direction of our employers, he had visited
‘Islas Aves,’’ or Bird Island, in the Caribbean sea, latitude 15° 40’
north, longitude 63° 35’ west, and had found quite a large deposit of
guano upon the principal island.

T returned to Boston in the month of May of same year. I left the
employ of the gentlemen above named, and persuaded Messrs. Lang &
Delano to fit me in the brig M.'H. Comery for said island for a
cargo of guano. I left Boston harbor in said vessel on or about the
_ 22d of June, understanding I was to be immediately followed by Cap-
tain N. P. Gibbs, in the brig John R. Dow, sent out by my former
employers.

Ex. Doc. 10——5

66 AVES ISLAND.

I arrived at the island on or about the 15th day of July, a vesse.
which I supposed to be the Dow being then in sight, and she also
arrived the same evening at the island.

I give this declaration as an act of justice to Messrs. Sampson &
Tappan and Mr. Shelton, to whom I was indebted, through Captain
Gibbs, for the knowledge that there was guano on said island, of
which fact I was previously ignorant, and imparted the information to —
Messrs. Lang & Delano, to the prejudice of my former employers; and
as an act of justice to them I give this declaration.

Given under my hand this 8th day of June, 1855.

JAMES WHEELER.

STATE OF MASSACHUSETTS, aide

County of Suffolk,

Then personally appeared the above named James Wheeler, and
declared, under oath, the above to be his free act and deed. Before
me—

JOHN CLARK,
Justice of the Peace.
Boston, June 8, 1855.

C.

I, James Wheeler, late master of the brig M. H. Comery, do
depose and say: That much of the time when I was on Aves or Bird
Island, and afterwards, when I was lying there with my vessel, the
American flag of the United States was flying, and that it was a usual
practice to keep said flag flying. I further depose, that when visited
by the British steamer Devastation, I informed the commander
that we held the said Aves or Bird Island for the government of the
United States, and expected to be protected by our government, as we
were citizens of the United States.

The American flag, which was then flying, was respected, and I
was informed by Captain D’Orsey, of said British government steamer
Devastation, that we had the right to hold\the island in the name of

the United States. .
JAMES WHEELER.

COMMONWEALTH OF MASSACHUSETTS, Eee
County of Suffolk,

Then personally appeared the above named James Wheeler, and

made oath that the declaration by him subscribed was true. Before

me—
GEORGE B. UPTON,
' Justice of the Peace.
JUNE 15, 1855.

/

AVES ISLAND, 67

Extract of letter of instructions to.Captain Nathan P. Gibbs, dated June
21, 1854. .

“You have an armament sufficient to protect you against all intruders.
who come for the purpose of taking guano, and we wish you to use it
without hesitation against all individuals that may come to molest you ;°
but we don’t wish you to resist the armed force of any government,
although we feel confident the island does not belong to any nation; yet
there may be claims of this kind we do not know of, and we do not wish
you to place yourself by any chance in a false position by resisting any
government force that may be sent there.”’

Boston, June 22, 1854.

Dear Sir: As you are about to proceed to Islas Aves or Bird Island
with a gang of men to gather guano, our instructions are that you take
possession of said island and hold it against all claimants; to better
secure your rights of possession that you put a fence all around it,
leaving open your landing only.

Should parties come there to take guano you will order them off and
prevent their taking it, by force, if necessary, for which you have an
armament, and you must use it, if threats don’t answer. We mean
you to keep possession of the island till it is exhausted ; and if you
want more men write home and we will send them out to you; and if
the person now sent out as your assistant is not all you want, write
and your wishes shall be gratified in this respect. We don’t wish to
drive hard until the rainy season gets over, in order to have dry guano;
but you can, while loading the first two or three vessels, judge how
rapidly you can ship it in dry weather. We shall send you as much
tonnage as you think you can load, if it is 3,000 or 4,000 tons per
month, as we must clear the island this year. The first two or three
cargoes you better avoid the top sandy looking guano, and take that
which is darker underneath and the crust, which I want you to pound
up on a plank platform, so as to have it fine mixed in with the guano.
The first cargo or two however you need not be so particular. Write
home if you want more horses, boats, or scows; all you ask for will
be sent you. * Write a few lines by every vessel, and let us know if you
have any trouble. [If any body claims the island in the name of a
government, you must insist that no government can claim it unless it
be Spain, who discovered it; no one but yourself has acquired posses-
sion, and that you shall hold it till you can hear from your government
on the subject. No government have any better claim than we have,
and this you can insist upon. Don’t mind any threats, because there
is nothing they can or dare do to injure you. The probability is, if
anybody comes under English, French, Dutch or Danish flags, they
will say they are by orders of government; but resist all attention to
their orders, and insist they must take you all as prisoners and make
prizes of your vessels before you will go, and leave it for your govern-
ment to settle the matter with theirs. J am sure they will not move
you, but will frighten you if they can. Against other comers you
must take your chance and drive them off. |

Captain N. P. Gress.

68 AVES ISLAND.

Boston, June 22, 1854.

Duar Sir: As you are about proceeding with a gang of men to collect
guano and ship it home, the following is our understanding as to com
pensation :

You are to receive seventy-five dollars per month and fifteen cents
per ton on all the guano shipped from the island, the weight to be
ascertained on landing in this country; and it is further guaranteed
that your compensation shall in no event be less than one hundred and
fifty dollars per month during the time you are so employed. You
can draw for seventy-five dollars per month payable here during your
absence.

Captain N. P. Gupss.

Dear Str: You will proceed as soon as possible to Sydney, Cape
Breton, and take a cargo of coal as per charter party herewith, and
proceed to the port of Mole, Island of Guadaloupe, and discharge the
same according to bills lading or charter party. You will notice the
freight is payable at the rate of $10 per chaldron of name measure or
its equivalent. The silver 5 franc piece is a legal tender in this country
at 94 cents each. You can take your pay in this coin or in French
gold coin at the rate 182 to 19 cents per franc, or bills on France of an
undoubted character at 183 cents our money per franc. I prefer your
taking gold or silver for your freight which you can collect yourself, and
not pay any commission for collecting the same. You probably will
have to pay a commission on your disbursements, which I presume
cannot be very large. You will take in sufficient ballast to take your
vessel safely down Ilas ‘‘Aves’’ or Bird Island, which you will find
down on the chart, latitude 15° 40’ 56” north, 63° 36’ 54” west from
Greenwich, where you will no doubt find Captain N. P. Gibbs with a
gang of men prepared to furnish you with a cargo of guano, which is
the object of this voyage; and you will with your boats and crew lend
every assistance in so loading your vessel or in any way make yourself
useful with your crew in assisting Captain Gibbs. After getting your
cargo proceed to New York as speedily as possible and report yourself
from coast of South America consigned to order. Should you not find
Captain Gibbs there, and you cannot with your crew and the means at
your disposal load the brig with guano, you will proceed to Turk’s
Island and get a freight of salt to Boston on the best terms you can
with the least possible delay. You will write me from Sydney how
much coal you take and when you are to leave, and from Guadaloupe
when you expect to get away, and how much money you have over;
and if you take bills of exchange for your freights send them to me
properly indorsed to my order inclosed to my order. The first and
second you can bring with you.

Capt. Lutner Howxann, of brig Cronstadt.

AVES ISLAND. 69
. oD.
Aves Istanp, December 3, 1854.
Sir: I being forced to leave this island, I shall take passage in the
Amazon, as she wants 75 tons to make up her load, so I order her to
Boston. The Viator will touch at St. Thomas; she has in about 100
tons of guano.
Yours, obedient,

N. P. GIBBS.
Prito 8. SHELTON.

E.

This is to certify that I was visited at Aves Island by a vessel from
the government of Venezuela, on the 13th day of December, 1854,
and that they claimed the said island, and landed one field piece, ten
soldiers, and an officer to guard the island against all other comers,
but allowed me to work until they could have further orders from their
government. On the 20th of December another vessel came and
landed twenty more troops and small arms, but did not attempt to
molest us until the 28th, when the same vessel returned and added to
their forces, and took possession of the island in the name of their
government, and would not allow us to work longer, and ordered us
to clear off all our property in twenty-four hours; but by giving them
a portion of provisions I was allowed to take the remainder, but we
had not time to clear our houses and wharves away, as they had taken
forcible possession of them.

NATHAN P. GIBBS:

de

Aves Isuanp, December 25, 1854.

Sir: I send you a line via St. Thomas, by Mr. H. Lang, who
leaves here to-day in one of his vessels which he gives up. We are
expecting to be stopped every day. Since my last we have had twenty
more troops landed, and we are now waiting their pleasure. There
is an English brig-of-war now lying here and leaves to-day for Carrac-
cas, to see if this Venezuelan government have a right to take it;
if they have not, this government will look into it. He says we
have the best right, and he was ordered to come and see if we
were still here, if not, to take it himself. I think they may come and
help defend it and let us work. He has gone to find out the right of
it. The Carlos will sail to-morrow with 800 tons, the Amazon the
last of the week. -The Viator arrived 23d. . We have nothing decisive

&

70 AVES ISLAND.

to depend upon, but I shall stick until the last, but I fear the time will
be short. The Carlo will come to Boston.
Yours obedient,
NATHAN P. GIBBS.
Puito 8. SHELTON.

G.

Aves Istanp, December 26, 1864.

Str: I last wrote you via St. Thomas, informing you of the state
of affairs here. We are expecting daily to be stopped, but I shall
work as long as I can and get the best. The Amazon, will sail Satur-
day for Falmouth. Her cargo will make a good average. She has
in 70 tons, like the Dow’s, former cargo, and 300 of No. 4 of my first
samples, mixed one third decomposed coral. I shall try to finish her
the same as] am going on. The Viator will sail soon. I look daily
for the Mary Pearce. I hope I'll not have to wait, as I don’t know
how long I may be allowed to wait. I am out of coffee and some other
trifling things, which I shall not order; if I can get it out of the
vessels I will do so. You will probably see Mr. H. Lang, who,can
inform you the particulars. He sends another vessel away to-day
empty.

Your obedient,
NATHAN P. GIBBS.

Puito 8. SHELTON.

Unitep STATES OF AMERICA, ig
State, City and County of New York, \~

By this public instrument of declaration and protest, Be it known
and made manifest unto all whom it doth, may, or shall concern:
‘That on this twentieth day of February, in the year of our Lord one
thousand eight hundred and fifty-five, before me, John Neilson, a notary
public in and for the county and city of New York, in the State of
New York, duly and by lawful authority admitted, commissioned, and
‘sworn, and residing and practicing in the city of New York and State
aforesaid, personally came and appeared George W. Nickels, master of
the ship James N. Cooper, and together with him come and appear
Henry CO. Dearborn, first mate, and Patrick Scallan, second mate, all
of and belonging to the said ship; all of whom being by me severally,
duly, and solemnly sworn on the Holy Evangelists of Almighty God,
voluntarily and freely depose and say: That they sailed in and with
said ship on the fifteenth day of January, one thousand eight hundred
and fifty-five, from the port of New York, bound for Bird Island for
.a cargo of guano; that said island is situated in latitude 15° 40’ north,

AVES ISLAND. > 71

and longitude 63° 38’ west, in the Caribbean sea; that they arrived
off the said island on the second day of February, one thousand eight
hundred and fifty-five, and came to anchor; that at the same time of
their coming to anchor the colors of the Venezwelan government were
flying on the island; that at 5, p. m., the first mate went ashore in one
of the boats of said ship for the purpose of making arrangements to
load the vessel with guano; that on his landing he was met by an
officer of the aforesaid government of Venezuela with a file of thirty
armed men who forbid him in the name of the said government from
making any such arrangements and ordered him off the island ; that the
said first mate then returned to the ship accompanied by the said
Venezuelan officer and three of the soldiers; that on their arrival at
the ship the said Venezuelan officer ordered the master of the ship to
get underway and leave the island, which he accordingly did, not
having the means or power wherewith to resist said order.

GEORGE W. NICKELS, Master.

B HENRY C. DEARBORN, First Mate.
PATRICK SCALLAN, Second Mate.

_ Wherefore, the said George W. Nickels, master and commander as
aforesaid, hath requested me to protest, and I the said notary, at such
his request, have protested, and by these presents do publicly and
solemnly protest against the governments of Venezuela and the United
States of America, and all foreign princes and powers, and against all
and every person or persons whom it doth, shail, or may concern, for
all manner of losses, costs, damages, charges, expenses and injuries
whatsoever, which the said ship James N. Cooper, her owners, freight-
ers, or charterers, have already sustained, or may hereafter sustain,
by reason or means of the foregoing premises.

Thus done and protested, in the city of New York, this twentieth
day of February, in the year of our Lord one thousand eight hundred
and fifty-five.

In testimony whereof, I have hereunto set my hand and affixed
my official seal the day and year last above written.
JOHN NEILSON,
Notary Public.

[SEAL. |

Unitep States oF AMERICA, yee fy }
State, City, and County of New York, § ~~’

I, John Neilson, a notary public in and for said city and county,
duly commissioned and sworn, dwelling in said city, do hereby certify
that the foregoing is a true and correct copy of an original protest on
file in my office. .

In testimony whereof, I have hereto set my hand and affixed my
(seat. ] official seal this twentieth day of February, one thousand

‘+ eight hundred and fifty-five.
JOHN NEILSON,
Notary Public.

7a AVES ISLAND,
I, ;

Extract from a report or letter from Captain N. P. Gibbs, announcing
‘the discovery of guano deposit on Shelton’s Isle, (Aves or Bird
Island.)

Apri 6, 1854.

Str: I landed on Aves or Bird Island, and it proves to be no harbor,
but vessels can anchor on the southwest side of it from one cable’s
length to a half mile, and not have over eight nor less than five
fathoms water clear bottom. There is a heavy swell setting on the
beach all around the key. The key is very much like Arenas; it being
a coral formation, and very hard to ascertain the quantity of guano
there until it is worked. I don’t like to make an estimate for fear I
might exaggerate, but I think there is more guano there than there
ever was at the former key, and the greater part of decomposed coral
such as I have the samples of, which I took about two feet under
sample No. 2. I tried in several other places, and found the same.
Sample No. 1, I think, is nothing but sand. Of such the northwest
part of the key is composed of for two feet deep; then comes No. 4,
about the same depth. Under this still comes the decomposed coral,
the exact depth I cannot tell, but one part of the key it was from three
to four feet. From No. 1, I measured 1,000 feet length by 300 feet
breadth. Within these bounds I took No. 2, 80 feet long, 80 feet
broad, 2 feet deep; also No. 3, 150 feet. long, 50 feet broad, 2 feet
deep. Under all these samples is decomposed coral, and you will see
by the plan that No. 4 is from the edge of the bank. I was near
being deceived in the key until I came to this bank where the sea had
washed under it and caved it away. about 10 feet deep, so I could see
what the key was composed of. . I then tried in several places back
and found it the same. There is no one on board of the brig that
knows what there is there. It will be hard to keep the mate in the
dark, for he knows the keys we stopped at in the passage. I made
the key at 9 o’clock, after running through the night by dead reckon-
ing, and made it to a mile, as I expected. I run by English chart
and directions, and I am certain the latitude and longitude here is
correct. The mate got a good meridian altitude while I was on shore,
and made it 15° 50’. I am confident he made a mistake. The key
cannot be seen above eight or nine miles.

At 8 o’clock on the 4th instant made the Island of Sombrero, and
it proves to be a barren rock, without more than fifty birds, and not
one bit of guano on it. There is fifteen fathoms all around it, is per-
pendicular about thirty feet. It was with a great deal of difficulty I
landed; there was but one place where I could get up; there was some
grass on the center of the key. After looking this thoroughly over,
I lost no time in running for Aneyada, which I made at 5, p. m., of
that day. The island is full ten miles long, well wooded, and quite
a large village upon it. My West Indies directions told me so before,
but the coast pilot did not. So, to make sure, and obey your orders.
strictly, I went, and found it as here described. I did not land, but

AVES ISLAND. Ts

hauled on the wind and weathered the reef the next morning and pro-
ceeded for Aves—not a bird on Aneyada.

On the seventh instant at 1, p. m., was up to Bird Key, laid down
on the chart as Frenchman’s rock. This key lays about six miles
from St. Thomas, and is 200 feet perpendicular, the sea breaking
against all sides of it. As it was impossible to land—if I could land
I could not get upon the top of it—I lay aback two ships’ length from
it, and done all I could to obey orders. There was not a bird on it;
the top was covered with grass; the sides one solid, and bounded up.

like a sugar loaf; there is no bottom to be seen close to it. * 7
[For plat see original. ]

1ith. Landed on Nevasa, and there proves to be nothing there.
N. P. GIBBS.

Mr. French to Mr. Marcy.

Washineton, June 26, 1855.

Dear Sir: I have the honor to inclose a letter to you from my
brother, Henry I’. French, Esq., notifying the department that he is
attorney for Messrs. Lang & Delano in their claim against the Vene-
zuelan government for damages in being driven from the Aves Island.
He kas already notified the department, I believe, that he is attorney
for Wheelwright & Cobb, in the same matter.

I now act for my brother; after the lst July I shall act with him,
so that any communication on the subject may be addressed to me
here.

Tam, with great respect, your obedient servant,”

. B. B. FRENCH.
Hon. Wititam L. Marcy,
Secretary of State.

\

Mr. French to Mr. Marcy.

WasHineton, June 30, 1855.

Dear Sir: I inclose the petition of Lang & Delano, of Boston,.
Massachusetts, for indemnity in consequence of the outrage committed
upon their property and agents at the island of “‘ Aves’’ by the Ven-
ezuelan government.

IT accompany it with some views of my brother and myself as attor-
neys for L. & D., which we beg you to consider, and we hope that
you will, in such manner as may seem to you most expedient, cause
‘indemnity to be made by the government of Venezuela to our clients
as soon as practicable. |

In our view, not only the righis of American citizens, but the dig-

74 AVES ISLAND.

nity of the United States of America, demand both indemnity and
concession on the part of Venezuela.
Very respectfully yours,
B. B. FRENCH.
Hon. Wititam L. Marcy, .
Secretary of State.

To the honorable William L. Marcy, Secretary of State of the United
States.

The memorial of John H. B. Lang and William W. Delano, partners
under the firm of Lang & Delano, of Boston, Massachusetts: .

Your memorialists represent that they are native citizens of the
United States ; that having learned that a deposit of guano of great
value in commerce and agriculture existed on the island in the Carib-
bean sea known as ‘‘Aves,’’ or Bird Island, which les in latitude
15° 39’ and. in longitude 63° 38’ west, they fitted out the brig M. H.
Comery to obtain a cargo and secure such rights in the island as
might be proper. The Comery sailed frony Boston in June, 1854, and
arrived at said island and found it uninhabited and unoccupied. She
landed her party, who hoisted the «American flag, and took formal
possession, and proceeded to inclose the island with a fence.

On the day following, the brig Dow, from Boston, owned or char-
tered by Philo 8. Shelton, arrived, and, by consent of Lang & Delano’s
agent, occupied and inclosed a part of the island, and both vessels
loaded with guano.

The Comery having completed her freight first, landed a party of
working men to retain possession, build houses, and make other
arrangements for procuring further supplies of guano, and left the
island and arrived at Baltimore with the first cargo of guano ever
brought from the ‘‘ Aves’’ to the United States.

It being the hurricane season, but few vessels were sent during the
summer, but in the autumn your memorialists chartered many vessels
and made extensive arrangements to prosecute the business.

That about the 12th of December a Venezuelan armed schooner
came to the island, landed a detachment of armed men, and took pos-
session of the island in the name of that government. There were, at
this time, upon the island seventy men, citizens of the United States.
Men-of-war of different nations had visited the island, and their com-
manders had uniformly expressed the opinion that the parties in
possession had the right of possession.

There were, at the island, three American vessels taking 1n cargoes
of guano. The Venezuelans hoisted their colors upon the very flag-
‘staff which had been erected by us, and which had borne the American
flag. Having no*adequate force to repel the means there arrayed
against us, the Venezuelans having armed occupation of the island,
and asserting an exclusive title thereto, which we were unable to inves-
tigate or resist, no resistance was attempted, but we submitted to such

AVES ISLAND. 75

conditions*as were imposed, trusting to our own government to protect
the rights of its citizens, and to procure for us redress, should this
assault upon us prove, as we deemed it, illegal.

The commander of the Venezuelan force gave to the agent of each
party upon said island a paper in the Spanish language, of which the
following is a translation: ,

- “Domingo Dias, captain of the navy, second chief of the Venezuelan
squadrons, and commissioned by the supreme government of the repub-
lic as supervisor of the Antilles in the Caribbean sea, have come to an
agreement, subject to the approval of my government, with Charles
H. Lang, agent for Lang & Delano, of Boston, and Nathan P. Gibbs,
agent for Sampson & Tappan and P.S. Shelton, also of Boston, whom
IT have found taking guano at this island.

‘Ist. They may continue loading with guano the three vessels now
taking cargoes.

‘¢9d. They may continue loading until such time as the company
arrives with whom the government have made a contract, or until
the arrival at the island of the approbation or disapprobation of the
government. uae

*¢3d. And we, Charles H. Lang and Nathan P. Gibbs, promise to
loan to the garrison such auxiliaries as they may require.

“Ath. And, in effect, place our artillery and armament at the
orders of, and under the flag of Venezuela, to whom the island apper-
tains.

‘5th. I, Domingo Dias, second chief of squadron, order the com-
‘manders of men-of-war that are cruising inthe Amtilles, to respect this
until the government give contrary orders.

“¢ Tsland of ‘ Aves de Barlovento,’ 13th December, 1854.’’

That this paper was forced upon the parties in a strange language,
as the only terms to be allowed them, and received by them only be-
cause they had been forcibly deprived of possession of the island and
were under actual duress; that any admission of title therein con-
tained refers only to the actual possession which had been forcibly
taken from the Americans by the Venezuelans, and so was based
upon a false, violent, and outrageous assertion of right by a Venez-
uelan officer, for which his government should be held responsible.

That, under this permission, they continued loading the vessels
already at the island; that several other vessels chartered by them
arrived, when the Venezuelan armed schooner returned, landed more
troops, and placed sentinels over all the houses and on the wharf in
the night ; that when our men attempted to resume their work in the
guano pits, they were threatened by the sentinels with being instantly
shot, and were thus compelled to stop; that our citizens were then
notified to quit the island, with all their people and vessels, within
twenty-four hours, which they were.compelled to do, abandoning their
houses, wharfs, boats, water, and other property of great value; that
the commander of the Venezuelan schooner boarded all the American
vessels then at the island, and demanded to examine their papers, and
compelled the officers to exhibit them; that many other American
vessels chartered by us afterwards touched at the island to procure
guano, and were not allowed to do so; that your memorialists are

76 AVES ISLAND.

satisfied that the Venezuelan government have no title whatever to the
said Island of Aves, although, as appears by the paper aforesaid, that
government had contracted, before dispossessing us, with some other
party, based upon an assumption of title to the island ; that the course
of its officers is in violation of the law of nations and an outrage on
the rights of American citizens, and of your,memorialists in particular ;
that we have thereby been subjected to great and ruinous losses in our
business; that the document aforesaid is dated as at the ‘‘ Aves de
Barlovento,’’ which is the well known name, as laid down on the
charts, of an island, or part of a group of islands, more than two hun-

dred miles nearer to Venezuela than this island of Aves, which has .

never been known by any other name; that whether the conduct of
the agents and officers of Venezuela originated in misapprehension or
was an intended outrage upon our rights, we are equally entitled to
indemnity. :

Wherefore your memorialists pray that such course may be adopted
by our government that: their wrongs may be redressed, and full
indemnity awarded them for their losses and injuries by them sustained
through the violent and unlawful acts of the said government of Ven-
ezuela, And, as in duty bound, will ever pray.

LANG & DELANO,

By their attorneys,
B. B. & H. F. FRENCH.

JUNE 30, 1855.

The evidence on fide in the Department of State in support of the
claim of Wheelwright & Cobb, for indemnity in the same matter, is
referred to, to substantiate the facts above stated.

B. (B.& H: FY FRENGES
Attorneys.

Claim of Lang & Delano vs. the Government of Venezuela.

In the matter of the claim of Lang & Delano for indemnity for dam-
ages sustained at the Island of ‘‘ Aves.”’

It is said that the agents of the Americans, in the arrangement to
which they were parties, admitted the title of Venezuela to the island.

To this we answer—

Ist. That the Venezuelan government had already taken armed
occupation and exclusive possession of the island, and so de facto set-
tled, at their peril, the present question of title. From this first decisive
and outrageous act, flow, as consequences, all the acts which follow.
There is nothing in the arrangement that in the least excuses the orig-
inal wrong of dispossession, or that can be construed into satisfaction or
amends, or into a waiver of claim to indemnity for it.

2d. Had there been, upon the false assertion of title by Venezuela,
and express admission by the Americans of such title, it would be but
an admission under misapprehension of the fact, which could on no

AVES ISLAND. 77

principle bind them. No party can take advantage of his own wrong,
or claim a right because his own falsehood has been taken for truth.

_ An admission, even of title, in another, if not induced by falsehood,
is not binding if made under misapprehension, except in some cases
where rights of innocent third parties intervene.

3d. The agents of the American owners had no authority to bind
their principals in this matter, which could not be within the scope of
their authority.

Had the Venezuelan officer claimed one of the American vessels as
belonging to his government, and procured, by or without force, an
admission from the captain or agent that such claim was just, no one
would pretend that the property of the owner could be thus transferred.

4th. But the agents of the Americans were actually under duress,
and so, had they made agreements prejudicial to their interests, no one
could be bound by them.

B. B. & H. F. FRENCH,
Attorneys for Lang & Delano.
Wasurneton, June 30, 1855.

Mr. French to Mr. Marcy.

Wasuineton, December 17, 1855.

Siz: On the 30th of June last I had the honor to address you as the
attorney of Lang & Delano and Wheelwright & Cobb, of Boston,
relative to indemnity claimed by them from the Venezuelan govern-
ment for outrages committed by the agents of that government on
their property at the Aves Island, to which I received a reply, dated
July 2, 1855, saying ‘‘ that the department’’ was then ‘‘ engaged in
the consideration of that subject.’’

Will you do me the favor to inform me how those cases now stand,
and very much oblige your obedient servant,

; B. B. FRENCH.
Hon. Wm. L. Marcy,
Secretary of State.

Mr. Marcy to Mr. French.

DEPARTMENT OF STATE,
Washington, December 20, 1855.

Sir: In'reply to your letter of the 17th instant, in relation to the
claim of Lang & Delano and Wheelwright & Cobb, against the Ven-
ezuelan government, I have to inform you that as the subject is still
under discussion between the two governments, no definite intelli-
‘gence can be imparted to the claimants at this stage of correspondence.

I may, however, prevent untoward anxiety on the part of the claim-
ants whom you represent, by stating that the contract which the

78 AVES ISLAND.

public papers allege to have been made by the United States minister
at Caraccas in behalf of a Philadelphia company, expressly reserves,
as this department is informed, the anterior claims of the Boston
discoverers of the Aves Island guano deposits.

Tam, sirgidre., ;
W. L. MARCY.
B. B. Frenca, Esq., Washington.

‘

Mr. Sanford to the President.

St. NIcHOLAS Horen,
New York, December 24, 1855.

Str: In obedience to your verbal direction, when J had the honor of
seeing you on Thursday, the 20th instant, at the Presidential man-
sion, I now address youon the subject of Shelton’s Isle and the action
of the government thereon, having postponed this communication till
my arrival here this morning, in order that I might acquire more cer-
tain particulars in Baltimore and Philadelphia and this place concern-
ing the extraordinary circumstances which I intimated to you there
was reason to believe had occurred in that business.

The department of State possesses documentary proofs of most of the
following facts, and of incidental circumstances strengthening Mr.
Shelton’s claim to the prompt interposition of the government :

Ist. That nearly two years ago, Mr. Shelton’s agents, while on a
voyage of discovery in the Caribbean sea, expressly for guano, discoy-
ered and took possession of that derelict isle, and others, containing
valuable deposits of guano, and a short time afterwards he sent thither
several vessels and men, and brought several cargoes of guano to the
United States. .

2d. That after several months’ peaceable possession of Shelton’s Isle,
and after having erected tenements, built wharves, and made other
improvements, and hoisted the American flag thereon, Mr. Shelton’s
agents and men were forcibly ejected by an officer of the Venezuelan
navy, in an armed vessel of that navy, and with a military force of
that government, and his property on the isle forcibly wrested from

_ his possession by military force, and the American flag struck and the
Venezuelan hoisted in its place with a salute, and this outrage was
committed by the express order of the Venezuelan government.

3d. That Mr. Shelton sustained damage to an amount at least of
three hundred and forty thousand dollars, and he has been utterly
ruined thereby.

Ath. That the Venezuelan government had no pretense of right nor
title to the isle 300 miles or more from its coast, either from discov-
ery, occupation, or transmission of the right thereof from others, and

the outrage was totally unjustifiable, and is now so conceded and
admitted by all parties.

5th. That there are circumstances connected with the attempt first
made to defend this outrage, that superadd fraud to the original vio-

AVES ISLAND.. 79

lence and insult to the first injury, and that insult extends as well to
the federal government of the United States as the outrage does to
Mr. Shelton.

6th. That the conduct of the Venezuelan government was prompted
by a combination of speculators, partly resident in the United States,
including prominent politicians claiming to have influence, and for
the purpose of subserving their own selfish interests at Mr. Shelton’s
expense.

7th. That the combination has been enabled by sinister courses and
contrivances to satisfy the Venezuelan officials that the government of
the United States. was not disposed to interfere for or sustain Mr.
Shelton, and that in fact the government of the United States desired
the favorable action of the Venezuelan government towards them, the
said combination of speculators. It is worthy of note that the present
Venezuelan officials denounce the first agreement, to carry out which
Mr. Shelton was ejected, made by the influence of predecessors as a
_ fraud obtained by nefarious courses by all parties, and hence the pre-
tended new contract, though really founded on the first so repudiated.

8th. That chiefly through the instrumentality and influence of Mr.
Eames, the United States minister at Venezuela, the Venezuelan goy-
ernment has been induced to take such favorable action for such spec-
ulators,and give them a new contract for guano in Caribbean Islands,
under which, by authority of the Venezuelan government, the guano
on Shelton’s Isle is rapidly being taken away in fraud of Mr. Shelton’s
rights, and, as some concerned in the combination boast, it will all be
taken before he can get redress.

9th. That while this act of fraud was being perpetrated, the United
States minister utterly and inexcusably neglected to enforce the claim
of Mr. Shelton, and manifested lukewarmness if not hostility to it.

10th. That a person named Pickerill, dispatched by said combina-
tion to Venezuela to perpetrate the arrangements mentioned, was ”
greatly facilitated in so doing by his being, as it were, clothed with an
official character as charged with public dispatches, one of which was
instructions to Mr. Eames to further Mr.. Pickerill’s views to a certain
extent, but not to allow anything to be done to militate against the
claim or rights involved in Shelton’s Isle.

llth. That from these various circumstances and others, and the
fact that some of those concerned in the combination referred to boast
that their political influence in Congress and at Washington and else-
where, was sufficient to sustain them against Mr. Shelton, and that he
could get nothing done for him, have created with Mr. Shelton and
his friends a total want of confidence in Mr. Hames, and it may be
added, a conviction that he is connected too intimately in feeling, if
not otherwise, with those opposed to Mr. Shelton, and who have sought
to wrong and injure him.

12th. That the Mr. Pickerill above named has ceased to be the agent
of said combination, but has sought to get the control of Mr. Shelton’s
claim as agent, for a fee of half, which has been denied him, though
he was profuse in his assurances of powerful political aid in both
countries. The refusal of Mr. Shelton was for the reason that he

Soi i, AVES ISLAND.

feared his constitution of such agency would end in the total sacrifice.
of his claim and rights. .

Copies of the papers in relation to the contract made by Mr. Pick-
erill are unquestionably in the Department of State. I beg of you to
examine them. The papers in relation to Mr. Shelton’s claim are also
on file, and I trust you will examine them personally. I regretted to
learn that Mr..Mar cy took exception to a long letter addressed by Mr.
Shelton to him in a reply to a letter from the Secretary of State, which
Mr. Shelton supposed conveyed imputations against his conduct, but
it was not imagined the reply was disrespectful, nor was it so intended ;
and I presume Mr. Marcy is satisfied on that point, as he has been so
assured, and also that any portions regarded as exceptionable would
be promptly expunged.

My uncle, Mr. Shelton, is advised by counsel that it is proper for
him to memorialize Congress to confirm his right of discovery and
occupation of Shelton’s Isle, if the executive is without full power so
todo. This would bring the case up fully before the legislature for
its action, and therefore, as it might embarrass the executive diplomatic
action, which I am confident you will promptly direct to be further had
_ for the enforcement of his claim against Venezuela for indemnity, &c.,
I have induced its being withheld until approved whether it meet your
approbation or not.

As upwards of a yéar has elapsed since the outrage, and as the fail-
ure of the judicial officers here to arrest the Venezuelan commander
who dispossessed Mr. Shelton of his property, Captain Dias, upon a
civil process, which failure was occasioned by a sudden departure from
this city, every day’s delay is adding to the injury he has received.

I will add that frankness induces me to say that circumstances have
caused me to have a pecuniary interest in my uncle’s claim, and this
letter is addressed in my own behalf as well as his. It is proper for me
- also to state that the State Department was apprised of the purpose of
Mr. Shelton to arrest Dias and hold him to bail, above attempted, if
no objection existed, and it was intimated that none did exist.

Apprehension that such course might possibly compromise Mr.)
Shelton’s rights as an American citizen, to the interposition of his
government for the protection of his rights, and the indemnity for the
outrage he has sustained, have deter red him from pursuing the advice
of counsel to institute suits of libel or injunction or otherwise against
some nine or ten vessels now employed in the asportation of his guano
from Shelton’s Isle, or by a suit against the combination before men-
tioned, incorporated by act of the Pennsylvania legislature.

The Venezuelan government has established a military garrison on
the Isle, but if authorized by you, Mr. Shelton will promptly rid the
isle of it without expense to the government of the United States,
though it would perhaps be advisable that Congress should first recog-
nize his right, acquired by discovery and occupation.

May I ask that Mr. Shelton or myself be advised of the action that
may be had by the Executive on the subject, and of such course as at
may deem it proper and most advisable for him to pursue, as he wishes
to conform to its intimations?

Mr. Marcy suggested to me in conversation on Wednesday last that

AVES ISLAND. ee 3) |

I should make some proposition as to what Mr. Shelton wanted to be
done. Mr. Shelton’s letter on file and the printed pamphlet I handed
you, also on file in the State Department, contain express propositions
of what he wanted, sustained by argument and citations from author-
ities, and he and his friends feel the present condition of his case to be
a great hardship and grievance.

I have confidence that the Administration when fully acquainted
with this case will not consent to do anything or to omit doing any--
thing whereby the just claim of an American citizen for indemnity for’
wrong, outrage, and injury by a foreign government is sacrificed to»
further the schemes of speculators, who, without merit, seek to avail
themselves of the beneficial results of the enterprise. As a question
of honor, Mr. Shelton’s case is one demanding the attention of the
government, and as a question of interest the agricultural community
are deeply interested in seeing that his enterprise and industry, preg-
nant with such advantageous results to them, should be encouraged
and protected against the insidious efforts of an unscrupulous and
selfish corporate monopoly. ,

I have the honor to be, sir, with great respect, your obedient servant,

H. 8. SANFORD:

The PREsIDENT.

Mr. Sanford to Mr. Marcy.

_ 38 Crinton Pract, New York, .
i January 3, 1856.

Dear Sir: The unfortunate condition of the case of Mr. Philo S.
Shelton in relation to the outrage committed by the Venezuelan gov-
ernment at Shelton’s Isle, and of his claim for indemnity from that
government, has constrained the parties interested to decide upon the
employment of an agent to go at once to Caraccas to attend to their
interests, if such course is not unacceptable to the State Department.
Such agent would be more certainly useful if the department would
‘provide him with letters of a similar character to those furnished to
Mr. Pickerell, the agent of the Pennsylvania or Philadelphia Guano
Company last spring; and suggesting to the minister of the United
States at Caraccas to aid him and to confirm such adjustment as the
agent might succeed in effecting, not inconsistent with the other official
instructions of the department on that subject. Mr. Shelton and asso-
ciates have not yet fixed upon any agent, and they would take care
not to select any person without consulting the department, and not
to designate any one unacceptable to it. I presume I need not say to
you that I have not thought of going on this errand, and since I have
retired from the diplomatic service of the United States, I have not had
the least wish to be invested with any official or quasi official employ-
-ment. My private and personal affairs have been the object of my
undivided attention. The only object of this communication is to en-
deavor to accelerate the just settlement of my uncle’s claim, in which

Ex. Doc. 10-—6

82 AVES ISLAND.

circumstances have constrained me to become deeply interested, and I
am controlled only by an anxious desire to conform to the views of the
department. oy

May I beg you to answer this communication to me here, where I
shall probably be some weeks.

I have the honor to be, very respectfully, your obedient servant,

H. 8. SANFORD.
Hon. Wiiii1am L. Marcy,
Secretary of State, dc.

Mr, Marcy to Mr. Shelton.

DEPARTMENT OF STATE,
Washington, January 4, 1856.

Str: In order that this department may frame further instructions
to Mr. Eames in regard to your claim against the government of Vene-
zuela, you are requested to prepare and transmit such a statement of
your losses and damages at the Aves Islands as will cover, substantially,
all the elements of your claim.

It occurs to me—and the suggestion is offered for the consideration
of all the parties interested—that it would be decidedly to the advan-
tage of the several claimants, viz: Messrs. Lang & Delano, Wheel-
wright & Cobb,and your own house; to confer upon the subject together
and agree upon some gross amount which shall embrace all claims, and
which shall be distributed by the claimants among themselves in such
proportions as may have been previously agreed upon.

A letter of like tenor to this has been addressed to the other claim-
ants mentioned.

Tam, sir; &e., TAR,
W. L. MARCY.
Puito 8. Sueuton, Hsq., Boston. |

Same to Wheelwright & Cobb, Boston. Same to Lang & Delano,
Boston. ;

Mr. Sanford to the President.

°38 Curnton Piace, New Yorx,
January 5, 1856.
Siz: In connection with my former communication to you, written
at your intimation, in relation to the right of Mr. Shelton as dis-
coverer and possessor of Shelton’s Isle, and the outrage of Venezuela
upon those rights, and his claim for indemnity, &c. I have now »
deemed it my duty, in behalf of Mr. Shelton, to inclose to you a notice
signed by the president of the Philadelphia Guano Company and the
Venezuelan consul at Philadelphia, inhibiting all vessels, except au-

AVES ISLAND. 83

thorized by the Philadelphia company, from visiting all guano islands
in the Caribbean sea under the jurisdiction of Venezuela. It is taken
from the Herald of to-day.

_ Shelton’s Isle is claimed by them to be under that jurisdiction, and
included in the contract between the company and the Venezuelan
officials, and the Venezuelan government have a military force there,
as, in my former communication, I stated to you. The instructions
from the Department of State in relation to the affairs of that com-
pany, and to the good offices of the minister of the United States in
its favor, to effect an arrangement with Venezuela, were express to the
point that nothing should be done to militate against the right of Mr.
Shelton to Shelton’s Isle, and his claim for indemnity, based on that
right; and, in view of this fact, the inclosed notice is a matter of
astonishment. ,

I have also inclosed a copy to the Secretary of State, whom I ad-
dressed yesterday, as well as to-day, in relation to the outrage upon
Mr. Shelton.

I have the honor to be, with great respect, sir, your obedient servant,

H. 8S. SANFORD.
The PRESIDENT.

Notice.

OFFICE OF THE PHILADELPHIA GUANO CoMPANY,
December 24, 1855.

The Philadelphia Guano Company having, by virtue of a contract
made with the government of the Republic of Venezuela, secured the
possession and exclusive right to remove the guano deposits existing
on all the islands belonging to and under the jurisdiction of the said
republic, hereby give notice that no person or persons other than
agents of the said company can lawfully remove guano from any of
the said islands, and that all cargoes taken therefrom without a permit
from the company, duly signed and sealed with the corporate seal
thereof, will be claimed by them on arrival at any of the ports of the
United States or Europe, and legal proceedings will be immediately
instituted for the recovery of the property so taken, in whose hands
soever it may be found. ,

By order of the board of directors.
ins D. LUTHER,
President.

Agent in New York, James Lee & Co., 49 Wall street.

CONSULATE OF THE REPUBLIC OF VENEZUELA,
Philadelphia, December 19, 1855.
Captains and shipowners are hereby notified that, there being no
ports of entry open to foreign commerce in any of the Caribbean

84 AVES ISLAND.

islands under the jurisdiction of the republic of. Venezuela, with the
single exception of that of the island of Margaritta, all vessels found
touching at any of the guano islands, except those having a permit
from the Philadelphia Guano Company, duly authenticated, will be
seized and held liable for the penalty provided for a violation of the:
navigation laws of the republic. i
JOSE A. KEEFE,
¥ Consul.

Mr. Sanford to Mr. Marcy.

38 CLINTON Piace, New York,
January 5, 1856.

Sir: Since my letter of yesterday I have been surprised upon read-
ing the subjoined notice, which appears in the Herald of to-day, and
which I have cut from the fifth page of that paper, (fourth column.)
Although it is signed by the Venezuelan consul at Philadelphia, as
well as the president of the Philadelphia Guano Company, I am not
prepared to believe that your instructions that nothing be done to
militate against Mr. Shelton’s right as to discovery and possession of
Shelton’s Isle, and his claim for indemnity, based upon that right,
have been disregarded. I have deemed it my duty, on behalf of Mr.
Shelton, to inclose you the within notice.*

A few days since I addressed a communication to the President, at
his request, which I presumed would be referred to the department,
and therefore thought it unnecessary to duplicate it to you. I have
deemed it proper, also, in connection with that communication, to
transmit to the President, as well as to yourself, the subjoined: notice
of the Venezuelan consul and the Philadelphia Guano Company.

I am, with esteem and respect, your obedient servant,

H. 8. SANFORD.

Hon. Wiii1am L. Marcy,

Secretary of State, cc.

Mr. Marcy to Mr. Sanford.

DEPARTMENT OF STATE,
Washington, January T, 1856.

Str: In reply to your letter of the 3d instant, I have to state that
the department perceives no objection to the appointment, by Mr.
P.S. Shelton and the other parties interested, of a suitable person to
represent them and urge their claim upon the Venezuelan government
for the losses sustained by their expulsion from the Aves Islands in
the early part of last year.

* The notice above referred to accompanies the preceding letter to the President.

AVES ISLAND. | 85

The same facilities will cheerfully be extended by the department to
‘such an agent as were offered to Mr. Pickrell, the agent of the Phila-
delphia Guano Company, on the occasion of his recent visit to
‘Venezuela.

Wane si, ac: ;
W. L. MARCY.

Henry S. SanrorD, Esq.,

38 Clinton Place, New York.

Mr. Marcy to Mr. Sanford.

DEPARTMENT OF STATE,
‘ Washington, January 9, 1856.

Sir: I have received your letter of the 5th instant, with the notice
from the New York Herald.

I do not see wherein the notice could excite your surprise, or how it
has any relation to Mr. Shelton’s claim. The notice relates to islands
under the jurisdiction of Venezuela. The ground of Mr. 8.’s claim is
that Bird Island was not under the jurisdiction of Venezuela when he
had possession of it. I see nothing in the notice which can in any
way affect that question—nothing which shows [that] the instruc-
. tions, or rather advice, from this department have been disregarded.

Kann sir; &e.,,
W. L. MARCY.
H. 8. Sanrorp, Esq.

Mr. Sanford to Mr. Marcy.

38 CLinton Prace, New York,
January 12, 1856.

Sir: Your brief note of the 9th, in reply to my communication of
‘the 5th, was received last evening. When I addressed you that com-
munication, it seemed to me.that the facts referred to in it, and also in
‘my other recent letters to the President and yourself on the subject of
Mr. Shelton’s claim, not only justified, but demanded, that the atten-
tion of the President and yourself should be called forthwith to the
motice I inclosed to you, and in the manner adopted by me, otherwise
that notice would probably have escaped your observation. I will
recapitulate the facts to which I allude, sercatim. You must pardon
me for their reiteration. It is done to save you the trouble of an
examination of the past correspondence to ascertain them.

1. The Philadelphia Guano Company claim, and the Venezuelan
_ government agrees, that Shelton’s Isle (miscalled ‘‘ Bird Island’’ in
your note) is included, and was expressly intended to be included, in
the contract between them definitively arranged under the auspices

86 AVES ISLAND. /

and by the assistance of the United States minister at Caraccas, ren-
dered to the contracting parties under the instructions, or (as you
suggest) the ‘‘ advice,’’ of the department. .

3. The Venezuelan government has had officers and a military gar-
rison on Shelton’s Isle ever since the 13th day of December, 1854,
when Commander Dias, of the Venezuelan navy, hauled down the
United States flag and ‘hoisted that of Venezuela ther e, and forcibly
ousted Mr. Shelton’s agents and workmen, and drove his vessels away
from the island, &c., and the Venezuelan government are now exer-
cising jurisdiction over it.

3. The Philadelphia Guano Company has been actively capa
since the ejection of Mr. Shelton’s agents, &c., and since the arrange-
ment it made with the Venezuelan gover ‘ament, and are now actively
engaged in the asportation of the guano on Shelton’s Isle under that
contract, thus decreasing the quantity of the deposit there and greatly

injuring his interests therein, and essentially impairing the value of

his rights with respect to the isle and in the guano deposit first dis-
covered by him, (per his agents,) and peaceably and rightfully pos-
sessed by him when so forcibly ejected.

4, The Venezuelan government persists in denying Mr. Shelton’s
rights with respect to the isle, and also have not yielded to him any
indemnification whatever for the injuries sustained by him by the
aggression of its officers, under its authority, more than a year since,
and for the continued usurpation of his rights.

5. The course of the United States minister at Caraccas in reference
to Mr. Shelton’s claim, has displayed feelings beyond mere indiffer-
ence to his rights, and Mr. Shelton and his friends had a profound
conviction that his course merited reproof beyond that for inexcusable
remissness and’disregard of the primary instructions of the depart-
ment in relation to the prosecution of the claims, and that he had lent

the influence of his official position in aid of the consummation of

measures prejudicial to Mr. Shelton’s rights and interests, and that
Mr. Hames was in fact interested in feeling, if not otherwise, with the

Philadelphia speculators, and in disregard of the instructions or ‘‘ad--

vice’ of the department, in respect to the rendition of his good offices
to that company, did aid in effecting an arrangenan that materially
militates against Mr. Shelton’s interests.

It seems to me quite apparent that the facts stated must have inad--.
vertently escaped your particular notice in the haste of dictating your
brief and prompt reply.

The official notice I inclosed to you was signed by the Venezuelan
consul and the president of the Philadelphia Guano Company. It
purported to be the conjoint act of the government of Venezuela and
of that company. It was an authoritative, official warning to the

government of the United States and its citizens, and to ‘‘the rest of

mankind.’’ It officially threatened the ‘‘seizwre’’ of all vessels

“touching at any of the guano islands under the jurisdiction of Venezu-

ela’’ in the Caribbean sea, with the sole exception of Margaritta, and
excepting those vessels having a permit from the Philadelphia Guano

Company! It would seem from your note that you were under the
impression that the notice did not relate to Shelton’s Isle, and that.

\

~

AVES ISLAND. 87

there is “nothing in it which can in any way affect’? Mr. Shelton’s
claims, for as much as the ground of the claim is that the isle ‘‘ was
not under the jurisdiction of Venezviela WHEN HE HAD POSSESSION OF IT.”’
This is clearly a misconception of the notice. The jurisdiction referred
to in it is that claimed and exercised at the date of the notice, (De-
cember 19, 1855,) and not that at the time Mr. Shelton had possession
and was ousted by Venezuela, (December 18, 1854.) This notice
embraces all guano islands in the Caribbean sea ‘‘ under the jurisdiction
of Venezuela’’ on the 19th December, 1855, excepting only Margaritta ;
and it makes no distinction between jurisdiction exercised de jwre as
well as de facto, and jurisdiction de facto only, and where the question
of right was in controversy. The only exception the notice does con-
tain, is of one other named island, and it forbids the idea that Shel-
ton’s Isle or Bird Island was not intended to be included. But if
desired by the department, proof dehors the notice, and sustaining the
allegation that it was expressly intended by the parties to it to in-
clude Shelton’s Isle, will be procured. The purposes and objects of
the Venezuelan government and of the Philadelphia Guano Company,
in this regard, are susceptible of direct and positive proof. If Mr.
Shelton were now to send a vessel to Shelton’s Isle for guano, and if
such vessel should touch at that isle without the permit of the Phila-
delphia Guano Company, she would be forthwith ‘‘sezzed,’’ according
to the notice, on the ground that the isle was ‘‘under the jurisdiction
of Venezuela’’ when she so touched, and at the date of the notice,
December 19, 1855. The misapprehension of the department as to
the extent and application of the official notice, and under which it is
quite obvious the note to which this is an answer was written, was
occasioned by not adverting to the fact that since December 138, 1854,
Venezuela has exercised wnmolested jurisdiction over the isle, and that
the notice refers to the Venezuelan jurisdiction in December, 1855, and
not that in December, 1854, when, to quote from your note, ‘‘ the
island was not under the jurisdiction of Venezuela.’’

From December 13, 1854, (when Mr. Shelton, after having had seve-
ral months peaceable occupation of the isle, was forcibly dispossessed by
Venezuela,) and up to the date of that notice, and at this time,
Venezuela has claimed the isle, has held possession of it by military
force, and has exercised such unmolested jurisdiction over it. Itis true
her possession was usurped and her exercise of jurisdiction wrongful,
because in violation of Mr. Shelton’s rights and in defiance of those of
the United States, based upon his discovery and occupation. But the
fact that Venezuela has had, since the 13th December, 1854, and still
has and exercises, de facto, jurisdiction over the isle, cannot be ques-
tioned. Itis as notorious in Boston, New York, Philadelphia, Balti-
more, and every port of the United States into which guano is im-
ported from ‘‘ islands under the jurisdiction of Venezuela,’ as the fact
that Oregon is at this time under the jurisdiction of the United States.
The records of imports of guano in the custom-houses verify this fact,
for vessels laden with valuable cargoes of guano from Shelton’s Isle,
have, since it has so been ‘‘ under the jurisdiction of Venezuela,’’ en-
tered as from a Venezuelan port. And this jurisdiction, although so
acquired, has been so far respected by the United States that the ex-

"88 AVES ISLAND.

ecutive has not granted the twice repeated application of Mr. Shelton
to be permitted to retake his possessions at his own expense, (which
course he could not pursue without such permission, except by viola-
tion of the neutrality acts,) and the executive has also refrained from
‘sending a vessel of the navy to the isle.

And now as to the effect of this notice upon Mr. Shelton’s ashi
‘and interests. A reference to Mr. Shelton’s statement, filed in “the
department several months ago, will show that he claims the restitution
of Shelton’s Isle to him and to the United States, status quo ante the
forcible and tortious eviction in December 1854, as just in respect to
his rights and due to the honor and dignity of the United States, and
he refers to precedents for such course, vide printed memoranda on file,
pp. 21-22. Such restoration he insists (upon the authority of those
precedents) is a just preliminary act to be done by Venezuela; for
mark! that government during the six months Mr. Shelton occupied
the isle made no complaint thereof tothe United States, but proceeded
at once to employ military force to effect his ejectment. As the rights
of the United States flow exclusively from him and his acts, and are
wholly founded upon his discovery and peaceable occupation of this isle,
(derelict till he took possession of it,) and as he is a citizen of the
United States and most directly interested, it is respectfully sub-
mitted that it was not unbecoming for him to urge the adoption of
such course. Indemnification for his actual losses and for his damages
is also there stated and claimed. He claims compensation for the de-
terioration in value of the isle between the time of the eviction and
such restoration, when made, whether by the abstraction of guano
therefrom or otherwise, and damages resulting from the continued
occupation and exercise of jurisdiction over the isle by Venezuela, and
the exclusion of Mr. Shelton’s workmen therefrom and for his being
deprived of its use and of the profits of the guano thereon after his
having been driven off in December 1854, and also damages for the
seizure and detention of his personal property, indemnification for
losses by false freights, demurrage of vessels, obstruction to the labor
and employment of his workmen at the isle, transported thither from
the United States in June, 1854, and sustained there at ereat expense
in erecting houses and landing, &e., for expenses in obtaining redress
and interest and augmented damages caused by the long delay. The
account of his claim, filed in the department 15th January, 18553
being at that time, in the aggregate $341,000, if scrutinized, will show
that the continued occupation and appr opriation by Venezuela of Shel-
ton’s Isle and her deprivation of Mr. Shelton of the use of it and her
exercise of jurisdiction over it forms the largest item of his claim.

Every communication addressed to the department urging the en-
forcement of his claim to the island and the guano on it, and for in-
demnity, or otherwise connected with it, refers as well to the continued
exercise of jurisdiction as to the first forcible and tortious assumption
of jurisdiction by Venezuela over the island. In fact, part of his
claim, as before observed, is founded entirely on such continued exer-
cise of Jurisdiction.

I assure you it was not apprehended that the official notice of the
Venezuelan government and the Philadelphia Guano Company, pub-

AVES ISLAND. 89

lished in the New York Herald, in December, 1855, could, ex propria
vigore, demolish the rights of the United States to the jurisdiction over
and sovereignty of Shelton’s Isle, founded upon Mr. Shelton’s discovery
and possession of 1854, or destroy or even impair Mr. Shelton’s rights,
based on the same discovery and possession of the then derelict isle ;
and I am gratified at the discovery in your note of an intimation that
in this respect your judgment sustains mine. Some solicitude was,
however, felt by me when I wrote my letter of the 5th instant that a
tacit acquiesence by the authorities of the United States (intrusted with
the conduct of Mr. Shelton’s case) in that notice, and in the claims it
puts forth, and the protracted delay, in connection with other peculiar
circumstances of this case, might hereafter be invoked by the Vene-
zuelan government and the guano company to assist them in raising
obstacles to his indemnification for their violation of his rights, and
hence, and in such way, have an injurious effect upon his interests.
The very material distinction between the rights of a citizen, however
incontrovertible, and his interests, dependent upon the vigilant atten-
tion to, and diligent enforcement of those rights by his government,
was not lost sight of by me in my letter, and in fact the letter was in-
duced by my exact appreciation of this essential difference.

In this very case his rights may be incontestable, and, if prose-
cuted with zeal and ability, valuable ; and yet, by remissness in the
enforcement of them, by delays and by pretermissions of duty by him,
or by his agents, or by his government, and other circumstances, his
interests nay become of trifling value and consequence.

I did not conceive it to be necessary, and, indeed, it might have been
regarded as indelicate and presumptious in me to suggest to the depart-
ment the propriety of its prompt notice and rebuke of the admonitory
manifesto of the allied powers of Venezuela and the guano company,
and therefore I contented myself with the mere transmission to the de-
partment of the notice, and the expression of my opinion as to its
objects and effect, and of my ‘‘surprise’’ at its appearance; confidently
anticipating that so far from being regarded as intrusive or officious,
or offensive, my exertions to be of service to it, and to aid it in sustain-
ing the rights and interests of a citizen outraged by a foreign govern-
ment, would be appreciated and well received.

I beg leave, in order to prevent misapprehension hereafter, to explain
' more particularly in what ‘‘ way’’ (as I believed) I saw that this declara-
tory notice and its being carried out would certainly affect, and injuri-
ously, Mr. Shelton’s interest. The pecuniary responsibility of Vene-
zuela, as is notorious, is of little account. Apprised of this by public
rumor, and by a knowledge of the dishonorable failure of that govern-
ment to fulfill its solemn obligations of several years standing to citi-
zens of the United States at this place, I have looked to its promise of
a pecuniary indemnification to Mr. Shelton as of secondary value, and
have considered that his chief dependence has been and is the imme-
diate restoration of the island. Unless it is exacted immediately I fear
his prospect of obtaining ultimate just redress is remote and dreary.
Upon the question of the effect of a tacit acquiescence in the notice, —
especially in connection with the other circumstances adverted to, as
militating against Mr. Shelton’s interest, I must, of course, defer to

/ 90 AVES ISLAND.

your experienced judgment, and I concede also in this case, perhaps,
more impartial, for 1 confess that mine may be influenced by a deep
sense of the grievous wrong and injury done to my relative and friend.
If, fortunately, the occurrences connected with the Philadelphia Guano
Company, and upon which this official notice was predicated, do not
militate against Mr. Shelton’s rights and interests I’shall be gratified,
but I have not been able to extinguish entirely my appli on
this score for reasons I have suggested.

It only remains for me to explain my statement respecting: my ‘‘sur-
prise’’ at reading the notice contained in my letter inclosing it to you.
That surprise was excited in part by the effrontery of such publication
by the functionaries of a foreign government in a newspaper of this
country, and whilst the right to one of the islands to which it was
intended to relate, and does relate, was a subject of diplomatic discus-
sion and contest between the United States and that foreign govern-
ment. I had, before I wrote, distinctly and certainly ascertained that
the notice was intended to include, and it did in terms include, the isle
in dispute. And the circumstances before adverted to connected with
this notice, and information as to the course of the intelligent minister
of the United States at Caraccas in reference to the contract between
the Venezuelan government and the Philadelphia Guano Company—
claimed by them to embrace Shelton’s Isle—and the fact that the con-
tract did clude that isle, so far forth, was in derogation of Mr. Shelton’s
rights and interests, and was calculated to embarrass the measures of
his government to obtain reparation and indemnification for him, and
did therefore cause surprise that the notice should be thus given in the
face of the United States government. Surely the evidence thus boldly
put forth that the arrangement was framed so as to include Shelton’s
Isle, which if made without permission of the government of the United
States, and solely by the parties thereto, inasmuch as the title to Shel-
ton’s Isle and the guano thereon was at the time a subject of contro-
versy and diplomatic negotiation between the two governments, of
which the citizens of the United States concerned in the guano com-
pany had notice, was a palpable violation of the act of Congress of
June 20, 1799, ( Stat. at Large, p. 699,) by those citizens, and the
bold impudence of the avowal contained in this “‘notice’’ was there-
fore calculated to excite some astonishment to a law-abiding and law-
respecting man. And besides, as the consummation of such arrange-
ment so eminently prejudicial to Mr. Shelton’s rights and so directly
tending to jeopardize his interests, if effected by the good offices and with
the concurrence of the United States minister at Caraccas, was, it seemed
to me, a disregard of the instructions or ‘‘advice’’ which I had been
oratified to understand had been given to him not to countenance any-
thing militating against Mr. Shelton’sclaims. The evidence this notice
gave ‘of a different course having been pursued more particularly created
surprise. The contract of the Venezuelan government and Philadel-
phia Guano Company is, inreference to Mr. Shelton’srightsand interests,
certainly in disregard of the plainest principles of justice. This must
have been manifest to the intelligent minister of the United States at
Caraccas, for he could not have been ignorant of Mr. Shelton’s case até
the time the contract was consummated, and information of his course
being influenced by prejudices against Mr. Shelton’s claim, and of his

*

Be.

AVES ISLAND. 91

being interested in feeling, if not otherwise, with the Philadelphia
Guano Company, and the conviction that Mr. Shelton’s rights and in-

‘terests had been sacrificed to promote the interests of volunteer specu-

lators, confirmed by the corroborating proof of this ‘‘notice,’’ likewise
caused surprise. I trust you will with this explanation see that I had
grounds for that expression.

_ Your verbal direction to me when at Washington, a few days since,
that if I had anything to say or any propositions to make respecting
the case of Mr. Shelton to put it in writing, I presumed would be a suffi-
cient warrant for my addressing you, if I had not had a direct interest
in the issue of his claim. Indeed, under such direction, I esteemed it
to be an imperative duty on my part to write to you.

I have sent a copy of this to the President in explanation of my
former letters to him. I expect, of course, copies of my letters are
forwarded to Mr. Eames. Of course Mr. Shelton and myself each
have cognizance of our correspondence. You will have received a
reply from him to your circular of the 4th, ere the receipt of this. I
expect him here to-morrow or next day, when I will again write you.

lam, with great respect, very truly, your obedient servant,

H. 8. SANFORD.

Hon. W. L. Marcy,

Secretary of State, &e.

Mr. Sanford to the President.

38 Ciinton Prace, New York,
January 13, 1856.

Siz: To prevent further misunderstanding respecting Mr. Shelton’s
application for the interposition of his government in relation to
Shelton’s Isle, and for indemnity, and in connection with my former
letters to you, I have the honor to inclose you—

1st. A copy of a letter addressed by me to Mr. Marcy in reply to one
from him expressing the opinion that he did not see how the notice of
the Venezuelan consul could relate to Shelton’s Isle.

2d. A copy of a letter from Moses Taylor, Esq., of this city, to the
Venezuelan consul at Philadelphia, and the original reply of that
functionary under his official seal, (see envelope,) expressly stating
that the notice does apply to the island.

Comments upon this manifesto of the Venezuelan government,
warning the United States and its citizens in the mode and manner
adopted, I am certain, are unnecessary to be made to you.

I expressed my surprise to the Secretary of State at the appearance
of this notice in a letter a copy of which I inclosed to you. I am con-
fident you will be satisfied that the expression was not uncalled for.

I have the honor to be, sir, with great respect, your obedient ser-
vant,

H. 8. SANFORD.

The PRESIDENT.

P. 8.—It is wished that the original of the Venezuelan consul’s
letter to Mr. Taylor be placed on file at the State Department. ae

92. AVES ISLAND.

No. 1.

44 Souru Street, New York,
January 11, 1856.

Str: A few days since I saw a notice in the Herald, of this city,
signed by yourself and the officers of a guano company in Philadel-
phia about the guano islands of the Caribbean Sea, under the jurisdic-
tion of your government. Propositions having been made to me to
send a vessel forthwith to what is called Shelton’s Isle, or Aves, or
Bird Island, in that sea, for guano, under authority of Mr. P. S.
Shelton, of Boston, and fearing that the island he claims may possibly
be included in your notice, and desirous to avoid difficulty before dis-
patching the vessel, I would respectfully request you to inform me if
your government and the Philadelphia Guano Company claim said
island, or exercise jurisdiction over it or the guano upon it, and whether
there is any objection to my going there under Mr. Shelton’s authority.
I have just been informed that the Venezuelan government had a gar-
rison there, and that the Philadelphia company were engaged in ship-
ping the guano from it; if so, please inform me, and also what price
per ton the Philadelphia company or your government charge for
. guano collected on it or other islands.

Respectfully yours,
MOSES TAYLOR.
José A. Keres, Esq.
Consul of Venezuela, Philadelphia.

NGO", toe

CoNSULATE OF THE REPUBLIC OF VENEZUELA,
Philadelphia, January 12, 1856.

Dear Sir: J have received your favor of the 11th instant, and noted
its contents, and in reply beg to inform you that the Island of Aves
or Bird Island, of which you write, is in the possession and under the
jurisdiction of the Republic of Venezuela, and has a military force
upon it sufficiently large to protect it from any depredations. No ves-
sels are permitted to touch at it other than those sent thither by
authority of the ‘‘ Philadelphia Guano Company,’’ who have ratified a
contract with my government, granting them the sole right to remove
the guano deposits from the said island, and all others in the Carib-
bean sea belonging to Venezuela.

Under these circumstances, and in view of the official notifications
given at the instance of my government, I should deem very injudicious
and extremely hazardous on the part of any person to dispatch a ves-
sel to the island referred to, or any of them, without a proper authori-
zation first being obtained, as all vessels found touching at the guano
islands, without a duly authenticated permit from the company here,
will be seized and held liable for the penalty fixed for a violation of

AVES ISLAND. 93

the navigation laws of the republic, there being no ports of entry for
foreign commerce at any of the guano islands.

The Philadelphia Guano Company are engaged shipping guano from
Bird Island, and haue a large number of laborers upon it. I am not
able at this time to inform you as to the price charged by the company
for guano, but I presume Messrs. James Lee & Co. of your city can,
as they are agents for the company. The government of Venezuela
has nothing to do with the sale of the article, nor will it until the
term shall have expired for which the contract is to endure.

I am, dear sir, very respectfully, i
JOSE A. KEEFE.
Mosss Taytor, Esq.

Mr. Sanford to Mr. Marcy.

38 Ciinton Pracr, New York,
January 16, 1856.

Str: Since my last upon the subject of Mr. Shelton’s demand for
the protection of his government to his right to Shelton’s Isle, and his.
application for its interposition to procure him proper indemnity from
the Venezuelan government, I have been furnished with the inclosed
documents.

No. 1 is copy of a letter to the Venezuelan consul, at Philadelphia,
from Moses Taylor, Esq., of this city.

No. 2 is the reply of that officer to Mr. Taylor. The original has
been sent to the President.

You will see by the inclosed, that the notice referred to in my two
last letters to the President and yourself, was intended to relate, and
does relate, to Shelton’s Isle, and was at the ‘‘instance’’ of the Ven-
ezuelan government, and I am satisfied you will see that my surprise
occasioned by its appearance was not entirely uncalled for.

I have the honor to be, with great respect, your most obedient ser-

vant,
¥ H. 8S. SANFORD.
Hon. Wm. L. Marcy, 4

Secretary of State.

Mr. Marcy to Mr. Shelton.

DEPARTMENT OF STATE,
_ Washington, January 19, 1856.
Srr: Your letter of the 15th instant has been received. Mr. San-
ford also has addressed the department in relation to your claim.
Copies of these communications with further instructions will be
transmitted to Mr. Eames.
Tam, sir, &c.,
W. L. MARCY:
Puito 8. Sueuton, Esq., Boston.

94 AVES ISLAND.

Mr. French to Mr. Marcy.

Wasuineton, January 21, 1856.

Sir: I inclose a letter from my brother, Judge French, of New
Hampshire, who is attorney, both in law and in fact, of Messrs. Lang
& Delano and Wheelwright & Cobb, of Boston, in their claim against
the Venezuelan government, which he has forwarded to me, witli the
account of Lang & Delano stated, vs. the Venezuelan government.

I pray you to note particularly the last paragraph but one of my
brother’s letter, in regard to ‘‘the mode of proceeding and the amount
to be insisted on.”’

With great respect, your obedient servant,

B. B. FRENCH,
Attorney, with H. F'. French,
For Lang & Delano and Wheelwright & Cobb.

Hon. Wiiram L. Marcy,
Secretary of State.

Exeter, New Hampsuire,
January 18, 1856.

Str: Your letters of the fourth instant to Lang & Delano, and to
Wheelwright & Cobb, have been forwarded to me for answer.

I have called on Mr. Shelton, and proposed an arrangement as to
the proposition of our several claims, but he for the present declines
to enter into any stipulation on the subject. Between Lang & Delano
and Wheelwright & Cobb there will be no difficulty in any arrange-
ment, as I have full power to act for both. I forward herewith Lang
& Delano’s statement of their claim, as they have drawn it up. It is,
I have no doubt, correct so far as it purports to give precise statements.
Some of the last items are estimates of their own, made by men who
embarked their fortunes in this enterprise, and have been ruined by if.
They may be exaggerated, and we by no means insist upon being
judges’ in our own case. The statement will give information as to
the precise nature of their claim, and we shall be contented to abide
the award of any commission that may be appointed to assess the
damages upon such principles as the department may deem rea-
sonable.

Mr. Shelton is somewhat impracticable at present, because we will
not agree to a mode of prosecuting those claims different from what
seems to us legitimate and proper. I do not despair, however, of com-
pleting an arrangement such as you suggest with him whenever he
perceives that our government is really doing all in its power to pro-
cure for all parties suitable redress—a point upon which I and they
for whom I act are already satisfied.

Wheelwright & Cobb estimate their losses and damages at $15,000.
Their papers already filed disclose the nature of their claim.

AVES ISLAND. 95

\

Their case contains one element wanting in all the others. You
will see by the deposition of Warren Wass, master of the, Panola that
he actually paid port charges to the Venezuelan officer, w10 agreed to
furnish him a cargo, but drove him off, in violation of th ag reement.

The department will find me at all times ready to coy hy with any
reasonable suggestion as to an arrangement of these: otters, and
willing to pay ereat deference to its views, both with a gard to the
mode of proceeding and the amount to be insisted on. S\

My brother, Hon. B. B. French, will act for me at Washington.

With much respect,
HENRY F. FRENCH, cat
Attorney for Lang & Delano and Wheelwright & Cobb.

Hon. Writttam L. Marcy,
Secretary of State.

Statement of claim of Lang & Delano, in the Aves Island matter,
against the State of Venezuela.

Lumber, provisions, water, boats, houses, wharfs, &c., at

2 E_2UDV CL, atlas a eA) 2 4c de ee eR $10,000 00
Hixpenses of passages of laborers out and back.............. 4,000 00
Charter of ship Kentucky, 800 tons, 5 months, ai $2,000 10,000 00

Brig Aonian, 275 tons, at iy Osh nee s dates: 2,062 50
Bark E. A. Kinsman, 350 ToMisry ab ore adinde 1,750 00
Brig H. H. McGilrery, 250 tons, 4 months,
ibe OOK AN i saves 2 LAO te latte 4,000 00
Brig A. Blanchard, 300 tons, at $5............. 1,500 00
Bark kichmond.350 tons,at $be2 2. ..2.. 0.00242 1,750 00
bre Jey Means, 200 tons, at Gb2t2. 00.68... 1,000 00
Brig J. H. Kent, 200 tons, at $6 50............ 1,300 00
Schooner Magdala, 75 tons, 3 months, at $400 1,200 00
MEMECT ATES ANA EXPCNSES.[).. 4.5.5 eccwleccasesesvccssereseveses 5,000 00
Time of laborers during passage, 25 days, 31 men,

52) GL TOG GIG 7 Sea RO eo Pe $775
BREMEN a PCL TOAY. .) inn cbsiceanasecetssewcinns salle 15
Agent, at SOMME MULL RCM aa cates dartiaiens oe clans on aie o ou-aarelat 125

975 00
lixpense and time of J. H. B. Lang to island and home,

3. TER DU TSU oe Oa 5 Ano Eo ee 2,500 00
Loss by being compelled to suspend business and damage

PMCHEO Tt, ee RMP ks a os Cea eee eat ere 50,000 00
Loss on 2,825 tons guano, (above cargoes,) at $15......... 42,375 00
Interest on outlay and expenses to date of settlement...... 139,412 50

50,000 tons guano on island, owned by us by right
of taking possession, valued at................0ceeeeee
Messeceumme tomar ket mae cel Lieuekdudeeteae es 20
—— 500,000 00

639,412 50

96 AVES ISLAND.

Mr. Thomas to Mr. French.

DEPARTMENT OF STATE,
Washington, Jan. 22, 1856.

Sm: I ne ve to acknowledge the receipt of your letter of yesterday,
inclosing of%e from your brother, H. EF. French, of the 18th instant, -
together y, th a statement of the claim of Lang & Delano against the
government of Venezuela.

A copy of these papers will be transmitted to our minister at
Caratcas.

Lam, sir, &.,
J. A. THOMAS,
Assistant Secretary.
B. B. Frencu, Esq.,
Washington.

Mr. Marcy to Mr. Sanford.

DEPARTMENT OF STATE,
Washington, Jan. 25, 1856.
Str: Your letters of the 12th and 16th instant have been received.
A copy of these communications will be forwarded to the minister
of the United States at Caraccas.
Tam, sir, &c.,
W. L. MAROY.
H. 8. Sanrorp, Esq.,
38 Clinton Place, New York.

Mr. Sanford to Mr. Marcy:

38 Ciinton Pract, New York,
February 1, 1856.

Str: I have received your letter of the 25th ultimo, (post marked
26th,) informing me of the receipt of my letters of the 12th and 16th
ultimo, and that copies thereof will be sent to the minister of the
United States at Caraccas. I do not perceive that my letters to the
President, of which I have advised the department, were intended to
be transmitted. If it would save the department any trouble I will
myself forward to Mr. Eames, upon its intimation, copies of all the
correspondence in relation to the case that may be in my possession.

If not inconsistent with diplomatic propriety, I would request in be-
half of Mr. Shelton and those interested with him to be furnished with
copies of the correspondence with that minister that has been had in

AVES ISLAND. . 907

relation to this case, for the copying of which I will cheerfully pay,
as in the instance of the brief filed by me in June last.

I have the honor to inclose you a copy of the power of attorney to
me from Philo 8. Shelton and Sampson & Tappan, with power of sub-
stitution, to be filed in the department. I also send the original for
comparison by the department and for your satisfaction, but which
original, as it is necessary to use it otherwise than before the depart-
ment, I request may be transmitted to me.

If any additional authentication is necessary it shall be made upon
intimation by the department.

Lam, sir, with the highest respect, your obedient servant,

H. 8. SANFORD.

Hon. Wm. L. Marcy,

‘Secretary of State, cc.

P.S.4-Mr. Shelton has sailed for the West Indies from this port,
of which I apprise you in order that any letters for him in relation to
this case may be addressed to me.

H. Sige:

United States of America.

Know all men by these presents, that we, George R. Sampson and
Lewis W. Tappan, merchants, doing business as Sampson & Tappan,
at Boston, in the State of Massachusetts, and Philo S. Shelton, mer-
chant, of Boston aforesaid, having, by our agents, in the spring of 1854,
discovered a certain vacant, unoccupied, and desolate guano island, or
rock, in the Caribbean sea, in north latitude about 15° 40’, and in
west longitude from Greenwich about 63° 38’; and whereas the said
island was forthwith landed upon and taken possession of by our said
agents for us and for the United States of America, of which we are
citizens; and whereas, subsequently, and as soon thereafter as was
practicable, we dispatched several vessels with materials and many
laborers from the United States to said island for the purpose of pro-
curing the guano thereon, to which we had acquired a full right in
virtue of said premises; and whereas we, by our agents as aforesaid,
having, in June, 1854, taken possession of said island for said object,
and called it ‘‘Shelton’s Isle,’’ (the same having been heretofore de-
nominated ‘‘ Aves Island,’’ or ‘‘ Bird Island,) and having employed
our said laborers in carrying guano therefrom, and erecting tenements
and landings on said island, we remained in peaceful and unmolested
occupation and possession thereof and of the guano thereon, and were
engaged in procuring said guano, and shipping the same for several
months, namely, until in the month of December, 1854, when we were,
with our said agents and laborers, forcibly ejected from and dispos-
sessed of said island and guano, and our tenements, materials, imple-
-Inents, and provisions on said island taken from us by the authority
of the government of Venezuela under pretense of claim by the said
government to said island and guano, which claim we insist 1s without

Ex. Doc. 10 4

ys an ; AVES ISLAND.

foundation in right; and whereas our vessels and agents and seamen
and workmen aforesaid, were driven away from said island by an
armed force of said government, which hath from thence kept us from
the use and occupation of said island and guano, and hath kept posses-
sion thereof in defiance of right ;:and whereas we have (in January,
1855,) applied to the Secretary of State of the United States for the
interposition of the federal government of said United States, of which
we are citizens, for the maintenance and protection of our just rights
to said ‘‘Shelton’s Isle,’ and to the guano thereon accruing and de-
rived as aforesaid, and also for our redress and indemnity for our
losses and for our damages sustained by reason of the outrages and
wrongs of the Venézuelan government, as aforesaid : Now, therefore,
we do hereby constitute and appoint Henry Shelton Sanford, Hsq., as
our true and lawful attorney to prosecute and defend for-us, and in
our behalf, our right and interest to and in said island and said guano,
and to represent us to and before the government of the United States,
or the government of Venezuela, or elsewhere and otherwise as may
be necessary. And to compromise and compound for, demand and
receive our claims for redress, indemnification, and damages sustained —
in the premises, and also for loss of said guano, false freights, demur-
rages, damages on charters, loss of outfits, fixtures, wharves, boats,
cabins or huts, houses and other property in the premises, and all
other damages arising in consequence thereof in anywise whatsoever.
And we hereby vest in our said attorney full and ample powers in the
premises to do and perform all such acts as we might do and perform
in relation to the aforesaid premises and to our said claims as if per-
sonally present. Giving him power to make arrangements to send an
agent to Venezuela, if deemed by him advisable, in order to make a —
more speedy adjustment of the matter; to substitute the powers herein
delegated to him to one or more attorneys under him, giving to him
and his substitutes full and adequate power and authority to grant
releases in our behalf on receiving satisfaction ; to compromise and
adjust the same in any way he may deem expedient ; and in case any
clause of amplification should be deemed necessary in this our power
to said Henry Shelton Sanford, Esq., or his substitutes, to give validity
to his acts in our behalf, we hereby grant the same and ratify all the |
acts he may do in our behalf in reference to the said claim and its
adjustment.
Given under our hands and seals, this 21st day of January, 1856.

GEO. R. SAMPSON. | [szat.}
LEWIS W. TAPPAN. |szat. }
PHILO 8. SHELTON. [seat.}

Signed, sealed, and delivered in the presence of—
A. L. Frorninenam,
; F. W. ReEyYNo3ps.
‘Witnesses to P. 8. 8.—
Bens. L. Massirt,
C. A. STETSON.

AVES ISLAND. 99

Untrep Srazs oF AMERICA, es
State and City of New York, §~’

Be it known to all to whom these presents shall come, that on this
21st day of January, A. D. 1856, before me, John L. Sutherland,
a notary public of said city and State, by lawful authority duly com-
missioned and sworn, and by law authorized to take and receive and
certify the acknowledgment of letters of attorney as aforesaid, person-
ally appeared Philo 8. Shelton, Esq., merchant of the city of Boston,
State of Massachusetts, the constituent in said letter of attorney named,
of whose identity I am satisfied, and voluntarily acknowledged that he
signed, sealed, and delivered said letter of attorney to said Henry Shel-
ton Sanford, Hsq.,as his voluntary act and deed, for the uses and pur-
poses therein expressed, and desired me to authenticate and certify the
same according to law.

Witness my hand and official seal, as notary public aforesaid, at my

office in the city of New York this 21st day of January, A.

ate] D. 1856.
JOHN LANSING SUTHERLAND,
Notary Public.

Srate oF MassAcHUvsetts, a
County of Suffolk, City of Boston,

To all to whom these presents shall come: I, Charles B. F. Adams,
a notary public, duly commissioned and sworn in and for the county
aforesaid, and practicing therein, do hereby certify that on the day of
the date hereof before me personally came George R. Sampson and
Lewis W. Tappan, they being to me personally well known, and
severally acknowledged the foregoing letter of attorney, by them sub-
scribed in my presence, to be their free act and deed for the uses and
purposes therein set forth.
Witness my hand and official seal, this twenty-fourth day of

January, eighteen hundred and fifty-six.

CHARLES B. F. ADAMS,
Notary Public.

[SEAL. |

Mr. Sanford to Mr Marcy.

38 CLInton Piace, New York,
' February 12, 1856..

Dear Sir: In acknowledging the receipt of your favor of the 6th
instant, it is due to myself to rectify your misapprehension that mine
of the 1st—to which yours was a reply—manifested a ‘‘desire’’ that
my letter to the Persident should be communicated to Mr. Eames.
For several reasons I supposed they would be, but I was entirely in-
different on that point. In that letter I merely noticed the circum-
‘stance that your previous communication to me of the 25th ultimo did
not refer to those letters, and mentioned only those from me to the
department of the 12th and 16th ultimo as intended to be copied and

100 AVES ISLAND.

forwarded to him. This circumstance induced the supposition that my
letters to the President might have been inadvertently overlooked at
the department, or that they might not have been referred to the de-
partment or placed on its files. Such supposition was justified by the
fact that in no one of the communications from the department had
any of my letters to the President or the original documents trans-
mitted with one of them (requested to be filed at the State Department)
een in anywise noticed. As I was convinced there could not be any in-
tention to omit noticing them, because of their being addressed and sent
to the President instead of the department, I could not account for such
omission in any wise than as just intimated, except that possibly they
were not to be forwarded to Mr. Hames because of the trouble of having
them all copied; and my offer to copy and forward them to our min-
ister was in the first place to attract your attention in a delicate mode
to them if they had been so overlooked, or had not been placed on file;
and in the second place, if they-were omitted on account of the trouble
of copying them, as is explicitly expressed in my letter, ‘‘to save the
department any trouble’ on that score. And so also, my letter, as I.
thought, in distinct terms placed the suggestion that I would willingly,
forward to Mr. Eames ‘‘upon its (the department’s) INTIMATION copies
of all the correspondence in relation to the case that may be in my
possession,”’ entirely upon the ground of saving ‘‘trouble to the de-
partment,’ and in compliance with an intimation by it that such aid
would be acceptable. I deeply regret to perceive from your letter that
I was so unfortunate in my selection of the language employed as to
cause the department to misapprehend me, and to judge me as seeking

officiously to interfere with its duties. Nothing could have been further ~ 3

from my object; and most surely it was not intended by me in that
letter to intimate that it was desired or deemed advisable for the claim-
ants to seek to withdraw their case from the State Department, or pre-
termit in any degree their solicitations for its advocacy and protection.
They were aware and I was aware that such abandonment of the ordi-
nary, proper, and legitimate channel of correspondence, either with
the Venezuelan government or with the United States minister at
Caraccas, would have amounted to a virtual abandonment of their
claim; and as to the questions of national honor and national rights
and interests involved, the maintenance and protection of which is the
peculium of your department, they certainly had not the arrogance or
presumption to express any willingness to assume charge of them by
‘‘corresponding directly with the legation;’’ nor was the idea enter-
tained that they or their attorney possessed equal ability to enlighten
the minister on this subject of their own rights and interests, or as to
the minister’s duties as the Secretary of State, who is chosen for his
learning, ability, and patriotic impartiality. It is true they and their
attorney did imagine that their diligent and vigilant aid, stimulated
as they are to such diligence and vigilance by a deep and abiding sense
ef wrong and injury, and by their important pecuniary interest in-
volved, might be usefully rendered by furnishing copies of papers to
the department, and thus saving it trouble and drudgery. More than
a year has elapsed since the outrage was perpetrated, and since the
interposition of the department was invoked, and it was believed such

AVES ISLAND. 101

aid might tend to expedite the settlement of the case and prevent
further delay, and the proffer of such assistance was the sole object of
my communication of the Ist February. Itis lamented that (as would
seem from your letter) a somewhat different impression is entertained,
but it is hoped that this explanation will be satisfactory.

I transmit to the department by the same mail with this, copies of
my letters to the President adverted to, and of sundry other papers on
file in the department directed to Mr. Eames with a letter to that func-
tionary, which, I presume, the department will have no objection to
forward, with its next dispatches, to him. I hope the department will
examine these papers and see if they are correct, for I would not think
of communicating with Mr. Eames except with the knowledge and
entire approbation of it. In ignorance of what has passed between
the department and Mr. Hames respecting this case, except the partial
information disclosed to me verbally, it would the extremity of self
reliance for me to venture to make suggestions to him in relation to this
claim which might be inconsistent to those made by the department,
nor could I answer his objections or those Venezuela. The claimants
have concluded that until Mr. Eames is heard from, and the present
condition of the case at Caraccas is fully, exactly, and truly known to
them, it would be useless expense and trouble and inadvisable for them
to send a known agent to Venezuela as formerly intimated, and that the
claimants can do little else than rely upon the attention of the State
Department to their claims. That attention they would respectfully
ask as early as the multifarious duties of the officers of the department
may allow.

It is hoped that any omission or deficiency in the proofs filed may
be suggested as early as practicable for the reasons heretofore urged,
so that the same may be supplied as promptly as possible.

It is anticipated that the claimants may, ere long, be able to furnish
the department with some interesting information, in some: degree
touching this case, derived from confidential sources at Caraccas.

I inclose an advertisement of the time of the next sailing of the
steamer ‘‘ Tennessee’’ from this city to that port.

I remain, dear sir, with the highest respect, your obedient servant,

H. 8. SANFORD.

Hon. W. L. Marcy,

Secretary of State, &c., de.

Advertisement.

For Laguayra and Porto Cabello, touching at Porto Rico and St.
Thomas. The United States mail steamship Tennessee, J. Johnson, ~
commander, will leave for the above ports on Saturday, February 16,
at twelve o’clock, from pier No. 2, East River.

Passage to Porto Rico and St. Thomas....................0565 $70 00
ii to Laguayra and Porto Cabello...................66 85 00
Steerage passage to the latter ports......... ....cccseceeeeeeees 25 00.

102 AVES ISLAND.

This steamer will arrive in time at St. Thomas for passengers to °

take the British mail steamer to

Guadaloupe, Trinidad,

Martinique, St. Bart’s,

St. Croix, Demerara,

Antigua, Santa Martha,
Granada, Carthagena,
Barbadoes, Aspinwall and

St. Martin’s, San Juan, Nicaragua,
St. Kitt’s.

All letters must pass through the post office.
For freight and passage apply to
S. DE AGREDA, JOVE & CO.,
47 South Street.

Mr. Marcy to Mr. Sanford.

DEPARTMENT OF STATE,
Washington, Feb. 6, 1855.
Sir: Your letter of the 1st instant was received this morning. As
you manifest therein a desire that your letters to the President, upon
the subject of Mr. Shelton’s claim, should be communicated to Mr.
Hames, expressing at the same time’a willingness to prepare and for-
ward yourself copies of those letters, and of any others you may have
which will probably enlighten our minister upon the subject. I have

to state that there is no objection to your pursuing that course, and ~ |

corresponding directly with the legation if you deem it advisable.

A comphance with your request to be furnished with a copy of the
correspondence of the department with Mr. Hames on this subject
would, at least, whilst the affair is pending, be contrary to the usages
of the department.

I return the original power of attorney inclosed in your letter.
The copy accompanying it has been carefully collated with the orig-
inal, a few immaterial errors corrected, and it has been filed with your
letter.

Tam, &., j
W. L. MARCY.
Henry 8. Sanrorp, Esq., ;
38 Clinton Place, New York.

Mr. Marcy to Mr. Sanford.

DEPARTMENT OF Sats,
Washington, Feb. 20, 1856.
Sir: Your communication of the 12th instant, with inclosures for
Mr. Hames, was not received in time to permit the transmission of the

ae .

AVES ISLAND. : 103
.zatter by the Tennessee, (steamer,) to Venezuela. They will be for-
warded, however, by the usual channel of intercommunications between
the department and Caraccas, that is, through Messrs. Dallet Brothers,
of Philadelphia.
I am, sir, &c.,
. W. Li, MEN:
H. 8. Sanrorp, Esq., |
38 Clinton Place, New York.

Mr. Sanford to Mr. Marcy.

38 Cuinton Piace, New York,
March 8, 1856.

Sir: Your letter of the 20th ultimo was duly received. Upon a
recent visit to Philadelphia on the 25th ultimo, I made inquiry of
Messrs. Dallet & Brothers, mentioned in that communication as hay-
ing been intrusted with your last dispatches to the United States min-
ister at Carraccas, and also with my letter of the 12th ultimo to Mr.
Eames, and its inclosures ; and I ascertained that those packets and
others, postmarked Washington, in January, then yet remained with
them. I trust it will not be deemed officious for me to advise you that
the steamer Tennessee sails from this port for La Guayra on the 22d
instant, as you will perceive by the annexed advertisement. I have
supposed this liberty will be excused in consideration of the importance
of the case of Messrs. Shelton and Sampson & Tappan, (represented
by me,) and the anxiety they feel as to its early settlement by the Ven-
ezuelan government. very day’s delay (for causes heretofore ex-
plained,) decreases their prospect of receiving or securing just indem-
nity.

I learned authentically when in Philadelphia, that the Philadelphia
Guano Company have, during the last two months, dispatched more
than a score of vessels and a large force of laborers from the United
States to the Caribbean sea for guano; part of which are to be em-
ployed in ‘‘skinning’’ Shelton’s Isle of the guano remaining on it, for
shipment to Kurope and elsewhere. I was also informed that at least
twelve vessels were ice-bound in the Chesapeake with guano from Shel-
ton’s Isle. I learned also that all the choice guano remaining on the
isle was to be first selected, leaving to the last the middling and ordinary
‘qualities, and other courses were pursued by which to make it seem here-
after that the quantity of guano on the island, and its quality and its
value were not so great nor so high as we have represented, and thereby
decrease our damages. I learned, also, that between December, 1854,
when we were evicted, and the summer of 1855, when the last contract
with the Philadelphia Guano Company was perfected, the Venezuelan
_ government authorized large quantities of the best guano on the island
to be abstracted therefrom for shipment to Europe and elsewhere, by
others than the company, and the shipment was under the supervision
of its military officers and officers of the customs, stationed on the isle
Since the day we were driven off. I have deemed it proper to advise

104 _ AVES ISLAND.

you of these facts in order that the information thereof may be, and

remain on the records of the department for future reference and. use.

‘It is, as you will at once discover, well nigh impossible for the claim-
ants to adduce legal proof fully as to these circumstances, and espec-

ially so as to the cargoes of guano taken away ; and therefore I pro-

pose to procure testimony, in addition to that already filed, of the

quantity and value of the guano on the isle at the time we were dis-

possessed ; deeming it the best proof, ex necessitate rei, that we

can procure; but I await the advice and suggestion of the department
on these points, and as to what it deems requisite and sufficient. The
claimants have heretofore, in several different communications, solicited
information from the department in this regard, but as yet have not

received in reply any signification of what kind of testimony would be

expected from them, nor as to what points it would be necessary to file

additional proofs, and hence, in some degree, the non-procurement of
further proofs. Our witnesses, as heretofore suggested, are all sea-

faring men, and we can only find them at the times of their return

voyages to the United States ; and it is therefore hoped that the de-
partment will inform us at an early period of what it is wished we should

do in this behalf.

I was informed in Philadelphia that the ‘‘royalty’’ paid by the
‘¢Philadelphia Guano Company’’ to Venezuela for the guano, was five
dollars per ton, Venezuelan currency ; and that the last contract ex-
pressly included Shelton’s Isle, and contains the extraordinary stipu-
lation that if it should be decided that Venezuela had no right to the
island, the company should make no reclamation on account thereof!

I was also informed that some of the Venezuelan officials, and those
who uphold them in their course with respect to Shelton’s Isle, contend
that the United States impliedly recognized the title of Venezuela to
Shelton’s Isle by having omitted to object to the first contract made
by Venezuela with citizens of the United States; and that a still
higher recognition of it was given by a less dubious assent (through its
functionaries at Caraccas,) to the last contract, made months after the
eviction of Mr. Shelton, and his claims for indemnity, &c., having
been preferred, with a chartered codperation of one of the States, and
against which the British representative at Caraccas did formally
object. .

I do not for a moment imagine that the facts assumed in such
defense would be conceded by the State Department, or that the argu--
ment based upon such assumption would be listened to by you as
entitled to respectful consideration ; and I am satisfied that the Presi--
dent and yourself will both maintain the doctrines so handsomely put
forth by Mr. Webster in his dispatch to Mr. Osma, of the 31st August,
1852, respecting the Lobos Islands, in which he says:

«The government of the United States has not, nor never has had,
any intention to facilitate the particular purposes of any persons, such
as Mr. Osma calls speculators, further than those purposes are con-
formable to public law, as well as to the laws of the United States.
This government knows of no companies, no associations, and no indi-
viduals, in whose behalf it undertakes any special protection. The
question is a general one, in which all the citizens of the United States

AVES ISLAND. 105:

engaged in commerce have an interest, and that interest is equally
respected by the United States, regardless of individuals.’’

But you will not, I trust, consider it as improper for me to respect-
~ fully request that the department will take measures, as early as
convenient, to procure true and authentic copies, in extenso, of both
the first and second contract of the Venezuelan government with the
Philadelphia company, insomuch as it is quite probable we may fail
in our efforts to obtain them.

And we deem a copy of Captain Dias’s official report to his govern-

ment of his conquest of Shelton’s Isle, and also a copy of the protest
of the British representative at Caraccas, important to us in this case.
It is presumed the department could readily obtain copies through our
minister at Caraccas, and it 1s believed they will be material to us in
establishing our damages and in other respects.

' A suggestion has been made, that probably after the island had
been ‘‘skinned’’ of the guano, a few weeks hence, the mockery and

insult of yielding it up may be proposed by Venezuela, but unaccom--

panied by any other satisfaction or promise of satisfaction for our
injuries. Such offer, without paying, or at least promising to pay,

for the guano taken from the island since our eviction, and our dam-

ages sustained otherwise, we cannot suppose will be regarded by the

department as very complimentary to the United States. If it is dis-

tinctly and in good faith proffered as a preliminary to full atonement,
as we have heretofore urged should be done, we trust it will be

accepted, but in such view only. We will, with the sanction of the

department, forthwith resume our possession in such event.
I inclose a declaration of William P. Gibbs, duly certified and
marked M, who was at Shelton’s Isle in December, 1854, and proves

important facts. Heisa relation of Captain Nathan P. Gibbs, the

agent of Mr. Shelton. I desire it to be filed as testimony in this case.
It was inadvertently omitted to be sent to the department whilst I
was absent in Kurope last autumn. Captain Nathan P. Gibbs is soon
expected in the United States from Australia, and his testimony will
forthwith be forwarded.

I have the honor to inclose you also a printed pamphlet, published
within a few days past by the ‘‘ Philadelphia Guano Company,’’

marked N, which I regard as important, particularly with respect to.

four points, viz:
1. It shows that the government of Venezuela and the Philadelphia
Guano Company claim Shelton’s Isle and the guano on it.

2. It gives testimony of the quantity of the guano, and the import-.

ance of the island in their estimation.

3. It establishes the high quality of the guano thereon, of which it
gives analyses.

4. It shows the current value and price of this guano is, in the
United States, from $25 to $40 per ton.

Neither the Venezuelan government nor the ‘‘ Philadelphia Guano
Company’’ can ever gainsay the statements in this pamphlet without
stultifying and criminating themselves. They are bound by it. I
desire it filed as evidence in the case.

You will notice that Mr. Keefe, the consul of the Venezuelan gov--

106 AVES ISLAND.

ernment at Philadelphia, (and the gentleman who had the correspond-
ence with Moses Taylor, Hisq., as to Shelton’s Isle, heretofore inclosed
to you,) is a stockholder and director of this company, and one of those
under whose authority the pamphlet is issued. I will send to Phila-
delphia to have transmitted to you some copies, one of which I request
may be fprwarded by the department to Mr. Eames.

I deem it proper also to inform you that on Friday last I ascertained
that the schooner Indicator, Captain White, burthen about 177 tons,
was dispatched by Messrs. J. Lee & Co., the agent of the “‘ Philadel-
phia Guano Company,’’ from this port on the Ist instant, armed with

cannon and manned by a large complement of men for such vessel, and

provided with small arms and fixed ammunition, for the purpose of
protecting, by force, the claim of Venezuela and the ‘Philadelphia
‘Guano Company’’ to all the guano islands in the Caribbean sea, Shel-
ton’s Isle included. Iinclose you a paper from the custom-house of
this city, certifying to the clearance of the vessel, &c., and her papers,
«&c. Iwill send some further proofs in reference to her so soon as I
can obtain them. .

I am advised by legal counsel that a suit in chancery by us against
the ‘‘Philadelphia Guano Company,’’ and perhaps joining as defend-
ants, Captain Dias, who is now in Philadelphia, and other parties;
(and indirectly the Venezuelan government) may be instituted in the
federal court at Philadelphia by us, if we are given the express sanc-
tion of the department, on the part of the government of the United
‘States therefor, and that the result would probably be advantageous to
the claimants, and that at any rate we could, in the progress of such
suit, coerce the production of material proofs, and obtain by commis-
‘ion, important testimony that we cannot now procure. The suit
would be for the proceeds of the Shelton’s Island guano received in
ithe United States, perhaps an action of trover, for the guano, on the
ground that it is ours, and a suit in equity to enjoin the payment of
the ‘‘royalty’’ yet unpaid by the company to the Venezuelan officials,
and to others to whom they have given authority to receive it here.
I am referred to the case of McFadden and the Vengeance, in 7 Cranch
Reports, as showing that the express authority of the government for
such suit is primarily necessary. With such authority, and provided
‘such proceeding would not in anywise interfere with the vigorous
prosecution of our claims by the department, it is proposed to institute
it immediately. I think it would constrain the Venezuelan officials
(who would personally experience some detriment of the ‘‘royalty”’
and the proceeds of the guano) to do us justice; and the course of
Venezuela in this business is entirely that dictated by those of her
officials who are interested in receiving personally a large share of the
profits of this guano. The suit at law against Dias, instituted in this
city some months ago, with the assent of the department, for trespass,
$350,000, was ineffectual in consequence of his abruptly leaving the
day the capias against him was attempted to be executed. May
I ask the department to sanction the institution by us of the suits in
trover and in equity suggested, if, on further counsel, such course 1s

rat hela. i ee ee

AVES ISLAND. 107

deemed advisable. I most respectfully solicit a reply to this commu-
nication as early as convenient.
I have the honor to be, with high respect, your obedient servant,
H. 8. SANFORD.
Hon. Wiiiram L. Marcy,
Secretary- of State, &c.

I, William P. Gibbs, of East Wareham, State of Massachusetts, by”

occupation a shipmaster, do hereby certify that on the 13th day of De-
cember, 1854, I was at Aves or Bird Island, in the Caribbean sea, in the
employ of Messrs. Sampson & Tappan and Philo 8. Shelton, of Boston,
assisting Captain N. P. Gibbs in shipping guano on board various vessels
at that island. . That on the day above named a Venezeulan schooner
of war, commanded by one Dias, arrived at the island and landed an
armed force with a large gun, and claimed possession of the island
in the name of the Venezuelan government, at the same time threat-
ening the immediate expulsion of all the Americans on the island.
Further, the said Captain Dias drew up a document in Spanish, which
he said was a permit for them to continue to load guano, provided
they placed their armament under his control. I was present when
the purport of said document was explained to Captain N. P. Gibbs,
(who did not understand Spanish,) and the most positive assurance
was given to him that said document contained nothing whereby he
assented to the title of the island being in Venezuela; I am positive
on this point; and I further certify that said Dias threatened that
unless they signed said document they must leave the island forthwith.
Captain Gibbs, under these circumstances, felt compelled to sign the
document, hoping by so doing, they would allow him to load the vessels
then there, and those expected. Further, on the 30th day of the same
month of December, another Venezuelan vessel of war, reported from
Laguayra, called at the island, and landed twenty more troops and
notified Captain N. P. Gibbs we must cease shipping any more guano,
and must quit the island within twenty-four hours; the same night
they stationed armed guards, with fixed bayonets, at the doors of our
houses, at the guano pits, on our wharves, and on our boats; on the
next morning, on attempting to resume our work, as usual, we were
forced at the point of the bayonet to desist. Under these circum-
stances, Captain Gibbs found it necessary to leave the island, leaving
in their possession our houses, our wharves, and other implements,
together with a portion of our stores, which we were obliged to con-
cede to them in order to get possession of the remainder; sending
away the brig Viator with only a few tons of guano, the brig Mary
Peirce without any, and leaving ourselves in the bark Amazon, which
was also not fully loaded.
WM. P. GIBBS.
Boston, August 23, 1855.

108 AVES ISLAND.

CoMMONWEALTH OF MASSACHUSETTS, he
County of Suffolk. ;

Then the above William P. Gibbs, personally appeared and acknowl-
edged the foregoing instrument, by him subscribed, to be his free act
and deed. Before me—

CHAS. HOMER,
Justice of the Peace.
Boston, August 23, 1855.

Extracts from pamphlet, marked N, filed as proof, with Mr. Sanford’s
letter of March 8, 1856.

k * * * x * * *

We allude to the recent discovery of large amounts of guano,
amounting to millions of tons, on the islands of the Caribbean sea
under the dominion of the Republic of Venezuela. These islands are
but 1,900 miles from our chief Atlantic ports, and their valuable fer-
tilizing deposits can thus be made available at but a comparatively
very trifling cost for freight. In 1855, the Pennsylvania Legislature
granted a charter to the Philadelphia Guano Company for the purpose
of at once commencing an extensive trade in the article in question.
By a contract entered into with the government of Venezuela, it pos-
sesses the exclusive right, for a series of years, of exporting the guano
existing upon all the islands belonging to that republic. The company
is now fully organized, and prepared to furnish any quantity desired.

*k * *K Kk K * * *

It is thus noticed in an article upon fertilizers, published in the agri-
cultural report of the United States Patent Office for 1854, page 95:
““ Columbian or Bird Island Guano.—A guano has recently been
imported from Bird Island, (which is embraced in the contract of the
Philadelphia company,) situate some 400 miles off the coast of Vene-
zuela, 200 miles south of St. Thomas, and 150 miles westward of Guad-
aloupe. From careful analysis, it has been ascertained that’ this sub-
stance is by far the richest source of phosphoric acid for the farmer yet
‘discovered, as it contains eighty-four per cent. of dry super-phosphate
of lime, or about one third more than pure ground bones. It also
contains less than one fourth the quantity of water always present in
the Peruvian article, and from twenty to thirty per cent. less than any |
other guano known. One hundred parts of the Bird Island article
contains the phosphoric acid necessary to form ninety-five and two fifth
parts of bone phosphate of lime. Of dry organic matter and ammonia,
it contains six and one fifth per cent.”’

It will no doubt be gratifying to our agricultural friends to learn
that these valuable guano islands have been leased from the Venezue-
lan government, for a long term of years, by a number of enterprising
capitalists of New York, Philadelphia, and Baltimore, who have pro-

AVES ISLAND. 109

cured a charter from the State of Pennsylvania with an authorized cap-
ital of one million of dollars. The name of the company is ‘‘The
Philadelphia Guano Company,”’ the office of which isin thiscity. The
whole of the stock has been subscribed; and the company are making
extensive preparations for a large importation of the article to meet the
demand for the spring crops. We understand that the guano will be
sold at a reasonable price, goes at all se principal marts.
* * * * *

David Stewart, M. D., chemist of the Maryland State Agricultural
Society, in a letter dated Baltimore, September 14, 1855, says:

‘Highly as | appreciate the Mexican guano, still I do not hesitate
to say that I would rather have four tons of Columbian than ten tons
of Mexican, and I would rather have equal portions of Columbian and
Peruvian applied to my wheat than Peruvian alone, or any other super-
phosphate alone. The fact that I have purchased seven tons of the
Columbian guano for each of my farms should seem to indicate the:
confidence which I place in it.”’

The guano islands of Venezuela are quite numerous, including Bird
or Aves Island, Los Hermanos or the Brothers, Los Frayles or the
Friars, Los Roques, Sola, Orchilla, Los Mongas or the Monks, Tor-
tugas, Centinellas, and many others. The quality of the guano upon
them, to some extent, varies in the amount of ammonia and of the
phosphates contained in it. The wholesale price will be from twenty-
five to forty dollars per ton, according to quality and amount purchased.

Custom Houss, CoLLecror’s OFFIcz,
March 8, 1856.

I certify (at the request of H. 8. Sanford, Esq.) that the schooner
Indicator, of New York, burthen 177 19-95 tons, registered at New
York on the 25th day of February, 1856, (Register No. 108,) built at
Marblehead, State of Massachusetts, her owners being Benjamin C.
Lee and James Lee, of New York, cleared from this office on the 1st
Way of this month for the port of Laguayra, in Venezuela, with .
George V. White as master, and the following named crew: ‘‘ Daniel
S. Downe, John Bell, Thomas Smith, Samuel Pearson, William Keys,
James Farland, and Joseph HE. Hurlbut,’’ and that the said vessel was
in ballast; and it does not appear by any document on file in this office,
that said vessel had on board any guns, ammunition, or passengers.
[sean] Given under my hand and seal.

; HEMAN J. REDFIELD,
Collector.

Mr. Marcy to Mr. Sanford.

DEPARTMENT OF STATE,
Washington, March 24, 1856.

Sm: Your communication of the 8th instant, with its accompani-

ments, has been received, and its suggestions have been taken into
consideration,

110 AVES ISLAND.

One of these is, that the department should indicate to you what
proof it ‘‘deems requisite and sufficient’ to sustain the claim of
Shelton, Tappan, and others against the government of Venezuela
for their expulsion from the Aves Islands, and consequent losses and
damages. ;

Upon more mature reflection you will doubtless perceive the imprac-
ticability of complying with this request. The claimants themselves,
and zecently you in their behalf, have presented a case to this depart-
ment claiming redress from Venezuela upon certain specific and well-
defined grounds, and damages have been claimed for losses alleged to
have been actually sustained. It is not the province of the depart-
ment to designate the nature of the evidence by which the claimants
should substantiate their claim. It is to be presumed, of course, that
the same care will be taken to obtain the most positive proof of which
the case is susceptible, as though the claim were to be subjected to the
scrutiny of a court of justice.

The department cannot engage in the stipulation which you propose,

to the effect that, if the claimants enter the courts of the United .

States for redress against the Philadelphia Guano Company, the diplo-
matic negotiations in their behalf shall not be prejudiced or estopped
thereby. In regard to a ‘‘suit in chancery,’ or any other judicial
proceedings, the claimants must use their own discretion, guided by
such legal advice as they may see fit to adopt. In this respect, how-
ever, the department does not perceive the analogy between the case
under consideration and that of McFadden vs. the Vengeance, (Query
Exchange?) in 7 Cranch Rep., to which you have been referred ‘‘as
showing that the express authority of the government for such suit is
primarily necessary.”’

I think it fair to acquaint you that on Saturday, 22d, dispatches

were received from Mr. Hames, one of which, relating to Mr. Shelton’s
case, was of the date 12th ultimo. With this Mr. Eames transmitted
a copy of the contract made with Mr. Pickrell, a transcript of which,
in the original Spanish, I herewith inclose. At the moment of writing
Mr. Eames had not received all the instructions and documents which
the department has forwarded to him upon that subject,* and he ex-
pressly regrets ‘‘that, in a case of such magnitude, the claimants
have not furnished more ample materials upon which to estimate the
amount of the indemnification to which they are entitled. Should
such further materials, however, not reach me by the next arrival
from the United States, now daily expected, I shall deem it my duty,
under your instructions, to urge strongly the claim, as it now stands,
upon the attention of this government, without further delay.”’

That you may understand what documents and data were either in
. Mr. Eames’s hands or on the way to him, I append a schedule of the
dates of the different instructions on this subject, and of the documents
accompanying each. From this you will observe that a statement of
the items of the claim which you represent was first sent out on the
20th ultimo. This schedule will enable you to determine whether any
further testimony is desirable in Mr, Hames’s future proceedings.

* Instruction No. 23 was the last he had received.

AVES ISLAND. il}

The department will delay writing to Mr. Hames until you shall be
heard from. Meantime a copy of N. P. Gibbs’s affidavit, which ac-
companied your communication, will be prepared for transmission,
with such extracts from your letter as bear upon the merits of the
case.

The department is quite ready to comply with your request that
Mr. Eames be solicited to procure from the Venezuelan government,
if he can do so with propriety, a copy of Captain Dias’s report, and of
the protest of the British representative to that government.

Lam. sir; d&c.,
W. iL. MARCY.

Henry & Sanrorp, Hsq.,

38 Clinton Place, New York.

Mr. Sanford to Mr. Marcy.

Dersy, CONNECTICUT,
April 14, 1856.

Str: I have the honor to forward to you by this mail the deposition
of Captain Nathan P. Gibbs, a witness in the case of the Venezuelan
outrage at Shelton’s Isle, duly attested, &c., to be filed at the depart-
ment. May I beg you to acknowledge its receipt?

I send in addition two copies of the same in order, if thought proper
to communicate it to our own minister at Caraccas, the department may
be saved the trouble of having it copied.

I send also a copy to the President.

My address hereafter is as above.

I have the honor to be, very respectfully, your obedient servant,

H. 8. SANFORD.
-Hon. Witiiam L. Marcy,
Secretary of State.

Mr. Marcy to the President. -

Dersy, CONNECTICUT,

April 14, 1856.
Sir: I have the honor to inclose herewith a copy of the deposition
of Captain Nathan P. Gibbs, a witness in the case of the Venezuela
outrage at Shelton’s Isle upon citizens of the United States and their
property, and of which I have heretofore written to you, the original
of which duly authenticated I have this day sent to the State Depart-
ment.
- » Ihave the honor to be, with the highest respect, your obedient servant,
, H. 8. SANFORD.
The PResipENT.

112 AVES ISLAND.

Testimony in the case of the claim of Philo S. Shelton and Sampson &
Tappan, against the government of Venezuela.

Interrogatories to be propounded to Captain Nathan P. Gibbs, a
witness in the matter of a certain claim against the government of the
republic of Venezuela, preferred to the Department of State of the
United States of America, by Philo 8. Shelton, aud George R. Samp-
son and Lewis W. Tappan, merchants of Boston, in relation to
“¢ Aves,’’ or ‘‘ Bird Island,’’ now called ‘‘Shelton’s Isle,’’ in the Ca-
ribbean sea, and in respect of the guano thereon, in December, 1854,
and of the eviction of said claimants therefrom, by order of said
government of Venezuela, in the month and year aforesaid, and of the
taking of the property of said claimants thereat by the same govern-
ment, and of their damages and losses sustained by the same.

J. Are you, or not, a citizen of the United States? Where were
you born, and where is your residence and domicil? What has been,
and what is your occupation? and what is your age? and in what -
employment and where have you been employed for a year past?
Please state fully.

II. What was your employment in the year 1854, and where were
you employed? State fully.

III. Were or were you not employed by said Philo 8. Shelton to
go on a cruise of discovery in the Caribbean sea for guano islands?
lf so, state fully; and if you sailed on said cruise, when and where
from, and what you discovered, and your conduct and proceedings
thereupon; and please state the particulars fully, and especially in
relation to Shelton’s Isle, if any of them relate thereto; and to your
taking possession thereof, if you did so, and describe said isle.

IV. What were your proceedings on your return to the United
States; and did you, or did you not, make arrangements for returning
to said isle for said claimants, or either of them; and if so, what
arrangements were made? State fully.

V. If you did leave the United States for Shelton’s Isle, when did
you so leave, where, and in what vessels, and for whom, and when
did you arrive at the isle; and who, if any one, did you meet there,
and in what vessel? and state all the particulars fully, and likewise
your proceedings after your arrival at the isle, and the reasons there-
for, and how you were employed the first week or ten days there-
after.

VI. State if you did, or did not, continue in the undisturbed occu-
pation and possession of said isle and of the guano thereon, for some
time, and whether you were or were not employed in the gathering -
thereof without molestation for some time, and if so, how long;
and how much guano was there shipped, if any, during said time, and
by whom; and what vessels, if any, were sent thither by claimants
during said time for guano; and all the particulars of your occupation
of said isle, that may be material in this matter; and whether you
were visited by any foreign vessels of war, and if so, what vessels, and
when, and what occurred during their visits; and whether your occu- -

pation was ever objected by any, and whether other vessels visited
the isle?

AVES ISLAND. 113

VII. When you landed first on Shelton’s Isle, had you ever been
informed of its being previously inhabited, or possessed, or occupied,
or claimed by any person or government, or that any government
exercised jurisdiction over it; and particularly, had you, or not, heard
of such claim by Venezuela? Please state fully all your knowledge
on this subject and any facts connected therewith, of which you have
been informed.

VIL. When you visited said isle in April, 1854, did you, or not,
examine it with reference to making an estimate of the guano thereon,
as to quantity and quality, andif so, what was your estimate? Please
state particularly and fully, and also refer to any authenticated facts
within your knowledge in confirmation or corroboration of your esti- —
mate; and please also state if you have heard any reports in relation
to said guano, differing therefrom, and whether or not they have
affected your opinion as to your estimate; and state if you had, or had
not, experience in respect to gathering guano ?

1X. Were you, or were your not, visited on the 13th day of Decem-
ber, 1854, by a schooner of war of the Venezuelan government; and
if so, state fully what occurred then and there, and all that passed
between you and the officer commanding her? Relate all the particu-
lars as fully as you can recollect the same, and particularly as to a
certain paper stated to have been signed by said officer and yourself
and Charles H. Lang, and how the same was given, and whether you
knew the purport and contents thereof; and say also whether or not
you were subsequently visited by an additional military force; and,
if so, when, and whether or not you were evicted and dispossessed of
said island and guano by said force, and of the property of your em-
ployers there; and if you were, state all the circumstances particu-
larly and fully.

X. If you were compelled to abandon the property of your em-
ployers at the isle, state the kind of property and value as particularly
as you can, and what you think was the cost and value to them of said
isle, and answer particularly and fully.

XI. Have you seen a copy of the statement of the claim of the said
claimants presented to the State Department, consisting of three
items: one of $312,500, one for $20,000, and a third for $8,500; in
the aggregate $341,000? If so, please say whether the same is, or is
not, in your judgment, exorbitant or extravagant ; and state anything
in your knowledge having relation thereto, and showing whether the
same is just or unjust, reasonable or unreasonable. State fully.

XII. Have you, or have you not, any interest in said claim, direct
or indirect, immediate or remote, in any wise? How were you em-
ployed by claimants? Have you any feeling in the case? and state
fully and particularly ; and state also, in answer to this interrogatory,
the names of any persons you may recollect that were with you at the
isle in 1854.

H. 8. SANFORD,
Attorney in fact for Claimants.
New York, April 2, 1856.

Ex. Doc. 10——-8

114 AVES ISLAND.

The answers of Nathan P. Gibbs to the forgoing imterrogatories

made before me, Joseph C. Lawrence, a notary public of the State of

New York, residing in the city of New York, the said Gibbs being by
me first duly sworn to testify the truth, the whole truth, and nothing
but the truth, in said answers, and being also duly cautioned accord-
ing to law. To each of said interrogatories he answers and deposes
as follows:

HE ANSWERS TO THE FIRST.

Tama native citizen of the United States of America. I was born

at, and my residence and domicil is, Wareham, in the State of Massa-
chusetts. My occupation or employment is that of a mariner, and
has been from my youth. Iam about twenty-eight years old. I am
at present master of the ship Marion, of Boston, now in this port,
(New York.) I sailed in command of said ship in the month of April,
1855, from New York, and went to Havana, Matanzas, Marseilles,

Genoa, Constantinople, Balaklava, [in the Black sea,| and thence to .

Palermo, and thence back to this port, where I arrived about the 15th
of last month.

TO THE SECOND.

Prior to my taking command of the ship Marion, I had been for a
long time in the employ of Philo 8. Shelton, Hsq., merchant of Boston,
in the United States, who was extensively engaged in the guano trade.
In the early part of the year 1854, I commanded and sailed the brig
John R. Dow, of Boston, owned, I believe, by him ; and was also his
superintending agent in the procurement of guano in the Caribbean
sea, and also to aid him in the Gulf of Mexico, in which business said
Shelton had at that time several vessels and many laborers employed
at heavy expense.

TO THE THIRD.

Under said Shelton’s instructions, and at his expense, and as his
agent, and for him, I sailed in said brig John R. Dow on a cruise in
the Caribbean sea for the discovery of guano islands, leaving Balti-
more in the month of March, 1854, and spent some time in making
such discoveries amongst the desert keys or rock isles in said sea,
several of which I visited ; and whilst so engaged, early in April,
1854, (I believe the 6th day of said month,) I found Aves, or Bird
Isle, in said sea, (called since by Mr. Shelton ‘‘Shelton’s Isle,’’)
being in about 15° 40’ north latitude and 63° 38’ west longi-
tude from Greenwich. I personally landed on said isle, and staid
there with my vessel one day, engaged in taking soundings and obser-
vations, and I made a sketch of said island and of the approaches
thereto. I explored and examined it thoroughly, and ascertained it
to be about 1,400 feet in length and from 350 to 400 feet in breadth,
and from fourteen to sixteen feet above the ordinary level of the sea,
and that it was a desert isle, not having any trees or herbage thereon,

AVES ISLAND. 115

and was uninhabited, and that there were not any appearances or in-
dication thereon of its ever having been occupied by men; and I was
fully convinced from its appearance, that if it ever had been so in-
habited, it had been entirely abandoned for a long time, and was
what is usually called a derelict and desert isle, I thereupon, as far
as I then could, took possession of said isle and of the guano thereon for
and in behalf of Mr. Shelton, my employer, and he being a citizen
of the United States, in behalf also of my government and country,
as I conceived I had full and lawful right to do; and in so doing I
believed I was acting properly, and that thereby the jurisdiction over
said isle became vested in the United States of America, and that Mr.
Shelton acquired, in virtue of such premises, a right to take and ap-
propriate said guano on said isle, and when in the actual possession
thereof, was entitled to hold the same against and over all others who
could not show a higher and better title than he had, or until forbidden
by some law of the United States, or by the Executive of the United
States in the fulfillment of legal duties. After fully examining said
isle and the guano thereon, and taking samples of said guano, I sailed
from thence on the 7th or 8th of April in said brig, and visited some
other keys in said sea, and then proceeded with all dispatch to Arenas
and other guano islands in the Gulf of Mexico, where Mr. Shelton’s
vessels and men engaged in the guano trade were then chiefly employed.
Captain James Wheeler was then superintending agent at Arenas for
said Shelton, being in charge of said business there, and had the brig
Cronstadt, the barque Thorndike, and the ship Lanark, and perhaps
other vessels whose names do not occur to me, subject to him. I then
informed Captain Wheeler in confidence, as such agent, of my dis-_
covery for our employers, and we dispatched all Mr. Shelton’s vessels
there home as speedily as practicable, and I conveyed the laborers (some
fifty odd in number) in the brig John R. Dow to New Orleans and
discharged them, and abandoned the Gulf guano trade with the view
of enabling Mr. Shelton, as soon as I could return to the eastern States
and get our vessels provided with proper materials and laborers, to go
again to Shelton’s Isle and continue the possession thereof, and after
erecting the necessary structures, to gather guano thereon and ship the
same to the United States, as I had by letter advised my principal, Mr.
Shelton. The said Captain James Wheeler, however, who also went
in said brig to New Orleans, immediately left said city in a steamer for
a northern port, on his way to Boston, where, failing to induce Mr.
Shelton to decide until I should arrive as to sending vessels to the isle
and laborers under him as agent, gave private information to Lang &
Delano of what I had communicated to him as agent of Mr. Shelton,
in confidence, respecting Aves or Bird Isle, and the guano thereon, and
persuaded them to fit out a vessel and send him thither for themselves.

TO THE FOURTH.

__Tarrived at Boston from New Orleans in said brig John R. Dow
about the 9th or 10th of June, 1854, and saw Mr. Shelton and Messrs.
Sampson & Tappan, of Boston, the last-named gentlemen having been
interested with the former—they may have been interested before then,

116 : AVES ISLAND.

though I have no positive knowledge thereof—and they all constituted
me their chief superintending agent, to take control and charge of
said isle for them, and to gather and ship the guano on the same, ac-
cording to their instructions; and said parties and myself made the
necessary and proper arrangements to carry out said object. I was
-accordingly dispatched about the middle, or perhaps the 20th of June,
1854, in the same brig John R. Dow, to Shelton’s Isle, there being
‘also shipped by said vessel a large quantity of heavy timbers and other
lumber prepared and framed, and fitted in Boston, to be well fastened,
in addition to wooden fastenings, with large iron bolts and braces and
rods, which, with nails and spikes and tools, were also shipped by said
brig, in order to erect a wharf or dock on the shore of said isle, at the
place I had ascertained by my soundings and examinations to be most
practicable. The said wharf, it was proposed, should extend upwards
of eighty feet from the shore into the sea, and was to be constructed by
placing or sinking into the sea upwards of twenty piers or horses, made
of heavy timbers, framed and fitted, and to be well secured by fasten-

ings and braces of iron as well as wood, and afterwards filling in the .

same with heavy rocks, to be obtained at the isle, and also by sinking
such rocks around them as a support, and to protect them from the
surf, and likewise by placing large stringpieces and heavy planks upon
them securely bolted and spiked; all of which I had ascertained when
at the isle in April was indispensable for a safe landing and for lading
the guano on shipboard. There were also extra tackles and falls and
cordage, and several extra water casks or tanks, and a large quantity
of water, and also of supplies and provisions—meat, fish, bread and
breadstuffs—and other articles necessary and proper for a large laboring
force at said isle, purchased by said parties and shipped to said isle by
said brig and by other vessels subsequently dispatched thither by them
up to the time they became apprized of my being dispossessed of said
isle on the 26th of December, 1854, as will be stated by me hereafter,
(which time, I believe, was about the 15th day of January, 1855.) That
materials for the erection of several houses (say seven) were also pre-
pared in Boston, and also materials for sheds and bunks, and upwards
of six dozen good wheelbarrows, upwards of ten dozen shovels and

several spades and grubs, upwards of six dozen picks, and divers hoes.

and other implements wherewith to gather the guano, and tackles and
falls, spars, ropes, boards, nails, hinges, locks, and the like, more than
four dozen baskets, and several large baskets or buckets, expressly made
for the lading of guano; and several dozen other buckets and tubs,
cooking and other utensils, the necessary articles for the proper accom-
modation in sleeping of the laborers, and medicine and other stores
for the preservation of their health, were also sent at different times
by said parties to said island; and likewise several extra boats and
appurtenances were furnished by them for the convenient use of the
persons in their employ there. My employers also sent two cannon
(both six-pounders) and two dozen muskets, and twenty-five large
pistols, and several Oolt’s revolvers, and twenty-five cutlasses, and
twenty-five boarding pikes, anda large magazine of fixed ammunition,
and also a flagstaff and United States flags for use on the isle. I took
in the brig John R. Dow, the trip last mentioned, some twenty-seven

AVES ISLAND. 117

or twenty-eight men, being mechanics and laborers, besides her crew,
which consisted of fifteen souls; and from time to time afterwards said
parties sént others out, so that, upon an average, in addition to the
erews of the vessels there, we generally had as many as thirty-five
men, and, with the crews, ordinarily, not less than sixty men of the
party under my charge, and by me employed on the isle after we got
at work, up to the day of our eviction. There were several females
who visited the island during the time I occupied it, the wives of per-
sons who came out in the vessels and stewardesses on board the vessels,
and one or more families of children, who also came out in the vessels.

TO THE FIFTH.

After leaving Boston in June, 1854, I arrived at Shelton’s Isle in
the brig John R. Dow, on the first or middle part of the month of
July, 1854, I believe on the 15th of that month. On the same day,
Captan James Wheeler, before mentioned, also arrived there in the
brig Mahala H. Connery, having been dispatched by Messrs. Lang &
Delano, merchants of Boston, as I understood from him, upon the
information they had derived from him as to the existence of guano
thereon, as before stated. Our vessels were in sight of each other
when we made the isle, and there was not an hour’s difference in the
time of our arrival. On the next day we went ashore in company with
Captain Wheeler, and although I did not conceive that either he or
Lang & Delano had, under the circumstances, any legal, or equitable,
or rightful claim to any portion or share of said isle or the guano
thereon, and regarded the attempt to appropriate the same to their
benefit to be a wrong upon Mr. Shelton, yet to avoid difficulty, and
for the sake of peace, and as there was sufficient guano for all, I agreed
with him to divide the isle and guano, and accordingly we staked off
our respective portions, and came to an unnderstanding not to interfere
with each other till I could hear from my employers, but leave the
matter to be arranged and settled at home as the parties might deem
advisable. Captain Wheeler had also, as I understood, brought out
for Lang & Delano sundry materials and articles, though not equal
in quantity or number, or in utility or value to those sent by Mr.
Shelton and Sampson & Tappan. We immediately erected two liberty
poles, or flagstaffs, and hoisted a United States flag on each, which
were kept flying constantly by day. Both companies forthwith com-
menced erecting their respective structures, the two wharves being
built near to each other. Several days were employed by all the per-
sons at the isle in building wharves, during which time the vessels
remained idle and incurring demurrage or losing time to the owners.

TO THE SIXTH.

I continued in the peaceful and undisturbed occupation and posses-
sion of Shelton’s Isle, and of the guano thereon, as aforesaid, and was
_employed gathering and shipping guano therefrom, from the time I
got the necessary structures erected, without molestation or objection
from any one, until the 13th day of December, 1854. I had erected,
besides the wharf, seven houses, and sundry sheds, and covers for my

118 AVES ISLAND.

water casks or tanks, and places for my provisions, and places of
shelter for my workmen, and up to the time I was dispossessed, as I
will state hereafter, I shipped for my employers to the United States,
I think about 7,200 tons of guano. The guano so shipped was not
selected as being of superior quality, but was gathered as was most
convenient for landing, because it was expected to ship the whole;
and, in fact, the best guano was left on the island when I was evicted,
and what had been shipped facilitated access to it. My employers
sent, after I got ready to ship the guano, several vessels to the isle.
I remember among them, besides the John R. Dow, the brig Cron-
stadt, of Boston, Howland, master; the ship Junius, of Hallowel,.
Erskine, first master, and afterwards Titcomb, master; the ship James
N. Cooper, of Boston, Nickels, master; the barque Carlo Mauran, of
Providence, Safford, master, (dispatched from Liverpool ;) the barque
Amazon, of Bangor, Stubbs, master; the brig Viator, of , Hllis,
master; and the brig Mary Pearce, of Bangor, Pearce, master; the
barque Brilliant, of New York, Bailey, master; the barque Mary
Smith, of Portland, Fitz, master, and others whose names do not
occur to me at this time. Captain Howland, of the Cronstadt, and
also his son, died on the passage between the isle and St. Thomas, and
several of his crew died also. Some were buried at the isle, and also
one of the crew of the ship James N. Cooper. All of said vessels be-
longed to the United States. I estimate the entire quantity of all the
guano shipped by my employers from the isle as about 7,200 tons,
and the entire amount shipped by Lang & Delano, including all who
shipped under their authority, as not over 2,000 tons. During the
time I was in possession of this isle, several foreign vessels visited us.
On the same day, or the day after, Captain Wheeler and myself went
ashore, a vessel passed near to us, bound to the Island of St. Thomas,
and, as I ascertained afterwards, reported there our being in possession
of the isle. A few days afterwards, and I believe on the Ist of
August, an English man-of-war steamer, called, I think, the Devasta-
tion, and commanded by a naval officer, named, I believe, De Horsey,
came down to ascertain our objects. The commander was very gen-
tlemanly, and landed and made inquiry, and I concealed nothing
from him, and told him of my intention to take the guano. He ob-
tained some samples, and examined the isle. He appeared to be an
intelligent man, and I sounded him as to his opinion, whether any
government but my own could claim the isle, and he told me frankly
that he thought not, and advised me to keep my flag constantly flying,
and to keep possession. We were next visited by an armed French
steamer, whose commander was also very polite, who also obtained
samples of the guano, and who expressed similar opinions to those
expressed by the British officer. Afterwards we were visited by a
Danish ship-of-war, and her officers told us to hold on to the island,
as no government within their time had ever occupied it or claimed
it. Several merchant vessels of different nations, and I think another
vessel-of-war, touched at the island that autumn and fall, before we
were expelled, and no one expressed any doubt of our being in right-
ful possession. I would observe that no United States government
vessel visited us during the several months we were at the isle.

AVES ISLAND. 119
TO THE SEVENTH.

When I landed on Shelton’s Isle, I had not been informed that any
person had ever inhabited, possessed, or occupied it, or that any gov-
ernment had ever claimed or exercised any jurisdiction or ownership
over it in anywise, though I did then, as I do now, regard it as quite
as probable that the island had many times been visited, and that the
ego gatherers from the islands of St. Thomas, Guadaloupe, St. Kitts,
St. Eustatia, and other West India Islands—the nearest inhabited
regions to it—had visited it to gather birds’ eggs for sale in the said
islands, as is their practice in respect to most of the desert rocks or
keys in the Caribbean sea, not possessed by any government; and
that, in fact, as the said isle was without wood or fresh water, it could
not be permanently inhabited by man for any longer period, without
supplies of those necessaries from elsewhere. I especially declare that
I had never heard at that time, nor, until the 13th of December, 1854,
did I once hear it intimated that the republic of Venezuela had any
claim whatever to said isle, or that the same was under the jurisdic-
tion of said republic; and if I had so heard, I would have regarded
such claim, as I did when I first heard it advanced, as utterly prepos-
terous, insomuch as Shelton’s Isle is more than two hundred and fifty
miles in the sea distant from the nearest admitted possessions of Vene-
zuela inhabited by her citizens, which is more than twice the distance
said isle is from several of the long settled and still inhabited wind-
ward West India Islands, possessed by the Danish, Dutch, French,
and British governments, all much more ancient than that of Vene-
zuela.

TO THE EIGHTH.

I made as full an examination of said isle when I first landed on it
in April, 1854, as I deemed essential to ascertain satisfactorily to myself
the quality and quantity of the guano thereon ; and in several places
on the isle I adopted means to find the thickness of the deposits with
which the isle was covered. I had, as before stated, been formerly
engaged for several months in the procurement of guano, and had
acquired considerable experience therein, and I made up my mind as
to the quantity of merchantable guano on said isle, and that there
could be obtained therefrom, and laden on board vessels, over one
hundred and fifty thousand tons, and that of said quantity at least
one half, or seventy-five thousand tons, might be classed as first rate
guano; and that said estimate of one hundred and fifty thousand
tons was exclusive of a large quantity which, from various causes,
should not be classed as good, merchantable guano, although it was
mostly of sufficient value to bear freight to the United States, at the
prices such guano was selling for in 1854 in the United States. I
deem it proper for me, in confirmation of the correctness of my esti-
mate, to state that I have seen an extract from an official letter or
‘report, purporting to have been made by the British naval officer I
have before mentioned, dated August 1, 1854, which has been pub-
lished in England and in the United States, and which purports to

120 AVES ISLAND.

have been addressed to the proper functionaries of the British govern-

ment, and in which it is stated that said isle had then upon it
“two hundred thousand tons of guano, but slightly inferior to the Peru-
vian.’? I have not seen nor heard anything since I made my first
estimate to make me suppose that it was in any degree extravagant,
and, on the contrary, my subsequent examinations, and the knowl-
edge acquired during several months’ stay on the isle in the summer
and fall, and till December 26, 1854, engaged in gathering the guano,
satisfied me that my judgment in that estimate was not erroneous. I

have knowledge of all the guano taken from the isle after I took pos-

session in July, 1854, until my eviction by the Venezuelan officers, as

I shall hereafter state, and I do not think, as I have before stated, it.

exceeded in the aggregate 9,200 tons; and I would again state, that
the cargoes shipped were not selected or picked from the best guano,
but were gathered as it was most convenient, as we expected to take
all there was on the isle if the demand for it continued; and that, in

fact, we took it as it lay, to facilitate access to the shipment of the
best guano. I deem it proper to state here that I have heard that re- .

ports have been made, stating that the quality and quantity of guano
on the isle were much less than my estimate; but that does not affect
my conviction of its correctness, for I know that it requires practical
experience with respect to gathering the article, to judge of the quan-
tity that can be obtained from a place of deposit, and likewise expe-

rience and considerable skill to gather it advantageously ; and I place

limited dependence on the estimates of those called engineers, however
able and scientific, if without such experience acquired by having been

engaged in the business. From my knowledge of the business, a

very large percentage is likely to be lost, in respect to quantity and

quality for market, if gathered by inexperienced persons.’’ After the

business of my employers at said isle was broken up, as I will state
hereafter, I received applications for my services to gather the guano

on said isle and elsewhere, from persons connected with the Philadel-

phia Guano Company, which I declined, and several of which letters
my employers have.

TO THE NINTH.

On the 13th day of December, 1854, a schooner-of-war of the goy-
ernment of Venezuela, commanded by Domingo Dias, an officer of the

Venezuelan navy, as he represented, came to the isle, and said Dias.

landed, and stated that he came by authority of his government to
take possession of the isle and guano, as belonging to that republic.
He landed one cannon, and ammunition, and ten soldiers, armed with
muskets and other arms, in charge of another officer, inferior to him.
Dias told me that his government had sold or leased, or was about to

sell or lease, the isle to a company in Philadelphia, in which com-

pany, he said, were interested gentlemen of great influence and high

in office in both countries, who had united to make money out of the

guano on the islands in the Caribbean sea, and that their influence was
so powerful that it could not be resisted. I told him I had discovered
the guano when the isle was derelict, and that I should not leave till

AVES ISLAND. 121

I heard from home, : my employers had encountered very great ex-
penses and much trouble in the business. From his conversations and
representations I received the impression that it was probable the gov-
ernment of the United States had made some arrangement, and had
perhaps authorized the Venezuelan government and the Philadelphia
company he spoke of to take possession of the isle and guano, and that
it was likely Mr. Shelton and Sampson & Tappan were concerned in
or with such company. I talked freely to Dias, and suggested that
even if this were so that that fact furnished good reasons for my hold-
ing on to my possession till I heard authoritatively from home; and I
finally told him, distinctly and unequivocally, that I would not leave
the isle, nor cease gathering the guano till prevented by superior
force, and that I would resist, and that he could not affect my expul-
sion with the force he had there. He then informed me that two other
government vessels-of-war of Venezuela—one an armed steamer and
the other a sloop-of-war—were coming over to the isle immediately
with more troops, and that they had orders, if I had not complied with
his directions, to expel me from the isle at once by military force, and
to drive away all my vessels, and that he (Dias) was commander of
the whole squadron, and that if he did not decide to expel me forth-
with, that he should leave the isle ina few hours, (leaving his soldiers
there,) and if the other vessels came in his absence, they would resort
to military force to expel me, at all hazards; and after some time, he
told me that he was willing that I should continue to work till the
Philadelphia company sent down, or till he could ascertain if my em-
ployers were interested, or procure the final decision of his govern-
ment; and that it would be best to keep off all other, and if I would
assist him in that, he would give me a paper signifying my right to
load the vessels there, and which would prevent all difficulty between
me and those in command of the other vessels, and prevent them from
attempting to interfere with me. I told him several times, distinctly
and expressly, that I would not do anything to admit or recognize any
right or claim of Venezuela to the isle or guano, or to compromise in
any way the title of my employers, and that I had no right or au-
thority from them to do so. I told him we were in possession, and
had been so, peaceably, for several months, which title was good till
somebody showed a better; and that his government, if it had any
right, should bring the case before the federal government of the
United States; and that if force was used, I would resist, and appeal
to my government for redress if I was overpowered. He assured me
that he did not desire me to make any admissions as to the claim of
Venezuela, and boasted that her title did not need them; and he-as-
sured me also of his kind and friendly feelings, and of his anxiety to
avoid difficulty, and handed me a paper that he had drawn up, or had
got drawn up, in Spanish, signed by himself alone, which, he said, in
case he went away, would prevent the vessels-of-war of Venezuela that
might arrive when he was away from molesting me. I did not un-
derstand Spanish, and did not know the contents of the paper. I
took the paper for what it was worth, and without much inquiry at
that time as to its contents, knowing, as it was not signed nor assented
to by me, it could not do any harm. He then wanted me to signa

122 AVES ISLAND.

copy, which he had made out in Spanish, an®which he had also .

signed, and said that he desired it to be signed by myself and Mr.
Lang, (Lang & Delano’s agent,) merely to show to his government
in due form what he had done. I unequivocally and emphatically
refused to sign anything. J did not, as I have before said, under-
stand Spanish, nor was there any one of my company who did. Dias
professed to interpret and translate the paper to me. He said if I
signed it he would leave the isle, the ten soldiers and officer already
landed to remain there; and that the only thing that he asked of
me, and that was in the paper, besides his orders not to molest me,
was a statement that I would assist his soldiers with my men and can-
non, and other arms, if occasion should arise, to keep off all intruders.
He pretended to explain it word for word to me, and declared that
there was not in it any acknowledgment of the right of Venezuela, nor
anything whatever that could prejudice, or compromise, or affect the

rights of my employers. I still refused, when he changed his course,

and declared that unless I did sign it he would not leave the isle till

he had driven me and my vessels away, and that he would forthwith |

resort to military force to prevent me from working, and to expel me
at all hazards; and that if I resisted, he would resort to extreme meas-
ures; and that if the forces he had at the isle were not sufficient, he
would soon have such forces when the expected vessels got there; and
he even boasted that he might carry all of us and our vessels to Vene-
zuela for trial for having violated her laws and stolen her property, and
the like. He then again assured me, on his honor as an officer and a gen-
tleman, that he had interpreted the paper he wished me to sign truly;
that it was a mere copy of his ‘‘ permit,’’ as he called it, that he had
- signed and given to me, and that it contained nothing conflicting with
the views I had expressed to him, and not a word admitting the title
of Venezuela in any way. Finally, after consulting with some of my
company and the American captains of the vessels there, after several
hours delay, by my refusal, I concluded to run the risk of relying on
his word, and signed the copy, as did also Mr. C. H. Lang, as agent
for Lang & Delano, and Dias kept it. Dias then said he would leave,
and I was appealed to to provide his soldiers with some provisions and
with water till he came back, or till the other Venezuelan vessels-of-war
arrived, as they were short of both; and pretty much as a matter of
charity and humanity, I consented to do so, and he left. Some of the
persons on the isle aided him with boats and sailors in going to and
from his schooner, as he was badly off as to both. I did not antici-

pate any further trouble, and continued my work. During all this —

time we kept the United States flag flying by day on the isle on two
liberty polls, and also on our vessels. Dias, whilst there, did not
attempt to haul it down. I fed the soldiers, and they did not molest
us, and I took the officer into my house, and fed him also, and I em-
ployed some of the soldiers to collect guano and paid them in cloth-
ing and provisions. I feel bound to say that, notwithstanding Dias’
menaces and threats, and his apparent demonstrations of an intention
to fulfill them, I did not sign the paper from any apprehension of per-
“sonal consequences to'myself, if I persisted in refusing, or‘because I
had any fear that with the force he had then at the isle he could have

: AVES ISLAND. 123
overcome my party or have driven us away. I had reason to appre-
hend, however, that he might attempt it, and I was desirous to avoid
any extremities in which bloodshed might have ensued. Though I
had no doubt that we could have taken him and all his men, and his
schooner-of-war, I did desire to avoid such necessity, and, from Dias’s
representations, I was not satisfied that my government might not
have taken such action as to the guano isles in that sea as would have
made such resistance improper, and also I did not know how soon the
superior naval and military force, represented by Dias as coming there,
might arrive; and, as we had no reason to expect a government
vessel-of-war of the United States to protect us from their attack, we
should have been at their mercy; and, besides all these considerations,
if Dias had not dishonestly misrepresented the purport of the paper, it
was harmless. I have'since seen the translation of the paper Dias
signed and gave to me, which I learn Mr. Shelton sent to the State
Department of the United States so soon as he received it from me, in
February, 1855, and also a copy of the copy signed by myself and
Lang, and kept by Dias, and a translation of it procured from the said
department by Mr. Shelton; and by said translations it appears said
papers are substantially alike, end I unequivocally declare that Dias’s
representations to me of their contents and purport were false, dishon-
est, and fraudulent; and if I had known or suspected the import of
said copy so signed by me, I would not have signed it, even under his
menaces and threats of military force to expel me from the isle, but I
would have resisted him at all hazards, and if overcome, appealed to
my government for redress. On the 23d of December, 1854, the same
schooner (as I believe) came back; as she approached she hoisted the
Venezuelan colors, and the soldiers on the isle hoisted the same, and
they exchanged salutes, in which one of the soldiers was mortally
wounded, and who afterwards died. She landed twenty morg sol-
diers, and sailed immediately for St. Thomas with the wounded soldier,
but came back to the isle on the 25th, anchored about 5 o’clock, p. m.,
and about 10 o’clock, p. m., sent most of her crew ashore fully armed.
They charged their muskets, and sentries were then placed around all
our houses and stores, and over all our property, and at the guano
pits, and on the wharves and over our cannon, and they forbade the
hoisting of our colors any more. Iwas then in bed. When they first
landed, I did not anticipate any difficulty, as I supposed Dias’s paper
would prevent it. The next morning I did personally hoist the colors,
in despite of the armed sentry at the flag-staff, and I directed my men
to go on with their work. They did attempt it, but were charged
upon by the sentries with loaded muskets and fixed bayonets, and de-
sisted only when in peril of their lives; and so also with respect to

some guano in barrows, which I directed laborers to wheel to the ~

wharf; they did so till stopped by the sentries, who presented their
bayonets and levelled their muskets towards them. Those on board
of my vessels, laying off from the wharves a short distance, were ex-
pecting me to load as usual, until I signalled them to come ashore
immediately, and they put off; but the boats were not allowed to land
by the sentries. The United States flag that I had hoisted was hauled
down, and it was not hoisted any more. The Venezuelan flag was

124 AVES ISLAND. ;
hoisted in its stead by the soldiers, and continued flying till we left,
and a salute with cannon was fired by the Venezuelans on the occa-
sion, from the isle and from the schooner. The officer in charge,
whose name [ do not recollect, (but it was not Dias, who had not re-
turned,) refused to pay any attention to Dias’s paper, and imperiously
and imperatively ordered, under menaces and threats, and demon-
strations of a violent character of the employment of military force,
that all the persons belonging to our parties and their vessels should
leave the isle and its vicinity within twenty-four hours, and he refused
to allow us a reasonable time to get our implements, water, provis-
ions, and other movable property on board of our vessels, and would
not permit such vessels to approach to the wharves; and we were
constrained, as he had a superior force, all armed, and acting in the
name and under the authority of a government recognized by our own,
to yield obedience to his commands, or engage in a combat which
would have resulted in bloodshed. There was a British brig-ofwar
at the isle at the time, the name of which I do not certainly recollect ;
I believe it was the Mariner, or Marine. The commander left the
isle, and said he intended to go to Laguayra, and find out by what
right the Venezuelans so acted, and he said I might be certain my
government would look into the matter and demand satisfaction.

TO THE TENTH.

In consequence of what T have stated, I was compelled to abandon
on the isle a large amount of property, including provisions and.
water and other stores belonging to my employers, some of which the —
Venezuelans positively refused to allow me to take away, and then
took possession of it themselves for their own use, as they had little
else there for their troops, as they admitted, and none of which was I
allowed time to bring away, and was, therefore, obliged to abandon,
and all of which I have since been informed they appropriated to their
own use. Itis impossible for me to specify all this property, but I
will state some of it. With the wharves and houses and sheds, there
were a large number of shovels and spades, and hoes, and hatchets,
and axes, picks, and other implements, and wheelbarrows and wheel-
ing plank, baskets, buckets, and tubs, and tools, and water casks and
tanks, and hogsheads and barrels, and a large amount of provisions
and stores of various kinds, and water-in casks or tanks, and two
large launches or long-boats and their appurtenances, the aggregate.
cost of all of which to my employers at said isle (and the aggregate
value thereof to them was much greater if they had been unmolested
in their business) was, according to the best of my judgment, (and I
had a general. knowledge of such costs and of their value, derived
from my superintendence of said business,) more than ten thousand
dollars. J verily believe that by a fair and just valuation it would
have amounted to a larger sum, for they kept pretty much all that we
had on the isle, and we were abundantly supplied. The residue of
the property of my employers, of similar character, on board their
vessels sent to said isle for use there, and which was rendered com-
paratively valueless by reason of said expulsion, was not less than

AVES ISLAND. 125
two thousand dollars in value. I further state that, according to the
best of my judgment, the cost at said isle of all the materials for
the wharf of my employers, and which were left there, and taken
possession of by the Venezuelans, and the building of said wharf
at said isle, was not less than $4,500. I further state that, ac-
cording to the best of my judgment, the cost at said isle of all the
materials for said seven houses and the sheds built by my employers
there, and which we were compelled to abandon, and which the Vene-
zuelans took possession of, and the building said houses and sheds at
said isle was not less than $3,500, and the cost of the other property
was as much as $3;500 more. I further state, that I do not include
in said cost any of the expenses incurred on the cruise for the dis-
covery of said isle, which, including the hire for the brig and crew so
employed, were not less than $3,000; nor do I include any of the
sacrifices, expenses, or losses incurred or sustained by the breaking
up of their guano business at Arenas, in the Gulf of Mexico, in order
to go to said isle, which I think must have amounted to several thou-
sand dollars, and not less than $3,500; nor do I include in any of said
estimates of any of said property at the isle any amounts except the
actual cost of the materials or articles in the United States, and of
their transportation to the isle, and the time, labor, trouble, and
expense bestowed upon them there; and I consider my estimate greatly
below what would have been their value to my employers at the isle
if they had not been molested by the Venezuelan government, and if
they had been allowed to continue the gathering of said guano.

TO THE ELEVENTH.

I have seen a copy of the statement of the claim presented by P. S.
Shelton and Sampson & Tappan to the State Department, of their
damages against the Venezuelan government. The first item is ‘‘ for
the guano on said island, estimated as a minimum at 25,000 tons,
(probably 50,000 tons,) which, under the management of the sub-
scribers, would have produced a net profit of $12 50 per ton, which
on 25,000 tons is $312,500.’’ Iregard this item, if they are held to
be entitled to the guano and to a fair compensation for it, as much
below the amount they might justly claim. As I have stated in my
estimate, the quantity stated is less than was on the isle when we were
evicted. If Lang & Delano should be considered as entitled to one
half, in consequence of the division in July, 1854, made under the
circumstances I have stated, the quantity is still, | think, understated,
for if nothing had to be paid for port charges or export duties, and if
they had been free to load the guano at no expense but the cost of
lading it as their own property, with the conveniences and facilities
for so doing that they had prepared, then I regard the price or value
claimed, viz: $12 50 per ton, as below what might reasonably ,be
claimed for it at the isle, and a fair profit made upon it in the United
States. As freights would probably not have exceeded, on an aver-
age, $7 per ton to the United States, even if sold at first sale in the
United States at $25 per ton, it would have been a profitable trade,
and have left also a margin for profit to those who purchased it to sell

126 AVES ISLAND.

again. With respect to the second item of $20,000, I know of several
vessels of my employers, or of vessels engaged by them, or to whom
they had engaged freights of guano from the isle, but as to this item
of charge they can, doubtless, furnish more particular statements than
I can give. I know they had made extensive arrangements as to the
guano “trade in reference to this isle, and incurred great expenses
thereby, most of which were lost to them. The following named ves-
sels, I remember, were at the isle when we were evicted, on the 26th
day of December, 1854: the bark Amazon, the brig Viator, and the
brig Mary Pearce. The ship James N. Cooper was expected, and did,
I believe, go out in ballast. All these vessels were sent out by my
employers, and I understood they had others. The Amazon and
Viator were driven off with but little cargo on board, and the Mary
Pearce was sent away empty, and the James N. Cooper, I believe, was
not allowed to take any guano.

In reference to the third item of $3, 500, I have already stated par-
ticulars, showing that, in my judgment, it is much less than it might
justly have been made. In reference to the entire statement, I feel no
hesitation in expressing my deliberate and sincere conviction that if
my employers were entitled to hold possession of the isle, and to use
the guano as their own property, and if entitled to payment for it
from Venezuela, (without reference to the expenses of discovery which
I have before alluded to, and without reference to the expenses and
losses encountered by the abandonment of the Arenas business, and
without reference to the embarrassment and losses consequent to Mr.
Shelton from this interruption and interference with his business, by
which he was compelled to suspend;) but simply and solely consider- |
ing the actual and direct losses and damages from the deprivation of
their property, the aggregate amount there stated is beneath what
might be justly claimed. And even if they are not allowed any com-
pensation whatever for the guano not gathered upon the isle, I verily
believe their said actual losses in the premises, including the expenses
of discovery, and also the said Arenas sacrifices, and also their direct
and actual losses in consequence of their being compelled to abandon
their arrangements for receiving, storing, and selling the guano in
the United States and elsewhere, could not be reimbursed under forty
thousand dollars at least.

TO THE TWELFTH.

I have no personal interest in this claim, direct or indirect, imme-
diate nor remote, in anywise. I was employed as agent, at a salary
and for a certain price per ton; I have settled with my employers ;
but I think in justice I should have more than I received, but I am
not promised anything, nor do I expect anything from this claim. I
have some feeling init. I feel humiliated as an American citizen at
the insult to my country’s flag, and at the outrage upon myself and
my countrymen at the isle, yet unatoned for; and I feel, too, sympa-
thy for Mr. Shelton, whose rightful property, as I conceive, was
despoiled from him whilst in my care, as his agent, by the fraud and
trick and force of the officers of the Venezuelan government, and I

AVES ISLAND. 127

have an anxious hope that his wrongs may be redressed by his gov-
ernment. This is the sum of the concern I have in anywise in the
claim; but, if I know myself, it has not caused me to swerve from the
truth in the foregoing answers, which, after reflection and care, I have
caused to be written and printed, and to the correctness of which I now
attest. I will name here the following persons who were with me at
the isle, and whose names I can now recollect; there were others whose
names I cannot remember. The testimony of all will, I am satisfied,
sustain the truth of my answers: William P. Gibbs, my brother, who
was my assistant, William James Gibbs, Frederick Scott, Kartin
Austin, Adolph Ritchart, Charles Sullivan, Richard Thornell, John
McCabe, Alfred H. Morgan, Joseph Herbert, John Sweeny, Robert
Williamson, George Humphrey, T. H. Whitney, Frederick Kager,
William Kalback, Britton J. Hopper, James Smith, Philip Knight,
Henry Baker, Charles Knapp, John Carr, Henry Troutman, Gerard
Ferrell, George Scotter, William Parker, Charles Johnson, Frederick
Taylor, James Johnson, besides the crews of the vessels there. I be-

lieve these names are given correctly, but I am not certain.
NATHAN P. GIBBS.

Subscribed and sworn before me, and I certify that the foregoing
interrogatories and answers were read to the above named deponent in
my presence, this 12th day of April, A. D. 1856.

JOSEPH C. LAWRENCE,
Notary Public, 67 Wall street, New York.

Mr. Marcy to Mr. Sanford.

DEPARTMENT OF STATE,
Washington, April: 17, 1856.

Str: Your letter of the 14th instant, with its inclosures, has been
received. One of the printed copies of Captain Gibbs’s testimony will
be transmitted to Mr. Hames.

On the 24th ultimo the department addressed a letter to you at New
York, which contained information supposed to be of interest to the
claimants whom you represent. As no acknowledgment of its receipt
has reached the department, it is presumed the original failed of its
destination. Should this supposition be correct, a duplicate will, at
your request, be transmitted to you.

Iam, &e.,
W. L. MARCY.

Henry 8. Sanrorp, Hsq.,

Derby, Connecticut.

128 AVES ISLAND.

Mr. Sanford to Mr. Marcy.

Dery, CoNNECTICUT,
April 19, 1856.

Sir: In several former letters addressed to yourself on the subject of
Mr. Shelton’s claim, and in a letter to the President of the United
States, dated December 24, of which I inclosed you a copy, I adverted
to the fact that legal counsel advised Mr. Shelton of the expediency of
obtaining from Congress a confirmation of his ownership of Shelton’s
Isle and the guano thereon. I respectfully solicited suggestions from
the President or yourself if it was deemed improper. Not having re-
ceived any intimation of such impropriety, I have supposed you did
not disapprove of such course, if deemed advisable.

I frankly state to you that I do not concur in the necessity of such
proceeding, and would respectfully solicit your attention to pages 5
and 12, included, of the printed brief I sent to you in June last, of

which the original manuscript is on file in the department. Some of

the citations are misprinted, but you can readily recur to them by
looking at the original brief. The heads of the brief to which I would
solicit your attention on this point are—

“X. Faculty of acquisition by the United States of such isle by dis-
covery, &c.

“XT. If faculty not in the United States, it remains in the State of
discoverer.

‘CXII. Executive may enforce and maintain public and private

rights resulting from discovery and occupation, without action of

Congress.

‘¢XIII. The non-existence of any restraining or directory law leaves
plenary power with the President. j

‘XIV. Discovery by private citizens vests rights in the United
States.

“XV. Rights and interests of citizen discoverers.

“XVI. Extent of our rights in the present case.

“XVII. A discoverer has no right or power to alienate rignts of his
State, or his own, to foreign powers, and admissions by him to such
effect are of no force.”’

I inclose you herewith a copy of a memorial I have this day sent to

be presented to both houses of Congress, which you will perceive only
claims the interposition of Congress, in case Congress, in its wisdom,
should deem such interposition necessary to confirm and maintain our
rights. I presume, therefore, it can in no wise embarrass, but, on the
contrary, aid the department in its diplomatic negotiations with respect
to this claim.

If Congress is disposed, it certainly can nerve and strengthen the
executive arm most effectually by making provision for the employ-
ment of a naval force to coerce just reparation. I understand that
during Mr. Polk’s administration, Mr. Buchanan felt the necessity of
the executive being invested with power to use the naval force in refer-
ence to some of the American republics south of us so strongly, that he

.
{
;
:
p.
2

AVES ISLAND. 129

urged upon the members of Congress the propriety of a general author-
ity being given in such cases. It certainly seems to me proper.

Venezuela is so utterly indigent and dishonest, (as is proved by the
large amount of bonds outstanding and unpaid for years past in the
hands of American citizens,) that we have little hope of obtaining pe-
cuniary indemnity from her distinct from the restoration of the isle.
We fear that the isle, and indeed we have reason to know such is the
fact, has been very considerably decreased in value by the abstraction
of the guano therefrom since our eviction. For this they should make

‘compensation, and we trust it is not expecting too much for American
citizens to expect that their government will exact, by coercive meas-
ures if necessary, such just compensation.

I have deemed it my duty to inclose to you a copy of the memorial,
and respectfully request that your efficient aid may be given to accom-
plish such end in respect to it as you may deem just.

I have the honor to be, with great respect, your most obedient
servant,

H. 8. SANFORD.

Hon. W. L. Marcy,

Secretary of State..

Apri 21.

P. §.—Since the above was written, I have. had the honor to receive
your letter of the 17th instant. That of the 24th ultimo was received
on my return to New York.

To the honorable the Senate and House of Representatives of the United
States of America in Congress assembled, the memorial of Philo 8S.
Shelton, a citizen of the United States, resident in Boston, in the State
of Massachusetts, merchant, in behalf of himself and of other citizens
of the United States, his associates, interested with him by transfer
from him, respectfully showeth :

1. That in the month of March, 1854, your memorialist fitted out
the brig John R. Dow, of Boston, owned by himself, and under
the command of Captain Nathan P. Gibbs, also a citizen of the United
States, and she sailed from Baltimore on a cruise of discovery in the
Caribbean sea for derelict and desert guano keys or isles.

2. That in the month of April, 1854, said Captain Gibbs, in said
brig, acting as the agent of your memorialist, discovered and took
possession of a desert and derelict rock or isle in said sea, situate in -
north latitude 15° 40’, and west longitude from Greenwich 63° 38’, then
known as ‘‘ Aves,”’ or ‘‘ Bird Island,’’ now called ‘‘Shelton’s Isle.’’

3. That your memorialist was then engaged in the guano trade
from the Gulf of Mexico, but*relinquished the same at a great sacrifice
for the said isle, which he named ‘‘Shelton’s Isle,’’ and forthwith, on
the return of said Captain Gibbs to Boston, dispatched said brig,
under his command, to said isle, provided with extra launches, and
laden with materials for a wharf and houses to be erected thereat,
and with implements and provisions and water for laborers, and with

Ex. Doc. 10 9

130 © AVES ISLAND.

many workmen by said vessel, to gather guano at said isle; and that
in June, 1854, said brig arrived thereat, and said Captain Gibbs, your -
memorialist’s agent, and the workmen accompanying him, forthwith
landed, erected houses and a wharf thereon, and continued in peace-
able and undisturbed possession ; and that your memorialist continued
to dispatch other vessels and workmen, and provisions, &c., until De-
cember, 1854, when they were violently dispossessed of and expelled
therefrom by an armed military force of the government of the repub-
lic of Venezuela, under circumstances of an aggravating character,
and combining gross fraud with violence, and being alike an outrage
upon your memorialist and the citizens of the United States, whose
flag, raised by its citizens there, was struck by the said military force.

4, That your memorialist presented early in January, 1855, to the
proper executive department of the United States, his claim for redress
against the government of Venezuela, but as yet no satisfaction has
been accorded him, and said claim is still pending; that the amount
of said claim is $341,000, of which $28,500 is for actual losses sus-
tained in damages occasioned by demurrage, false freights, and
forfeited charter-parties of his vessels employed in said business, and
for the value of the wharves, houses,. boats, implements, provisions,
and other property of which he was despoiled by said military force at
said isle; and that the residue of said claim is a charge of $312,500
for 25,000 tons of guano, at $12 50 per ton, being, as your memo-
rialist believes, less than one fifth of the quantity and value of the
guano on the said isle at the time of his eviction; and he also asked
for restoration of said isle.

5. That annexed hereto is a deposition of said Captain Nathan P.
Gibbs, (a duplicate of which has been filed in the State Department of
the United States,) in said claim, and which sets forth the facts of said
case truly and at large. And that there are on the files of the State
Department sundry depositions, documents, and papers, exhibiting
the justice of your memorialist’s claim to said isle and guano, and
showing also that his right is incontestable under the laws of nations,
and exhibiting also the wrongs and outrages committed upon him,
and the damages he has sustained ; as to all which as yet no atone-
ment hath been made.

6. That, if not allowed the item for the guano on the said isle as
his property, the direct and consequential damages sustained by your
memorialist in the premises, in addition to those specified in said two
other items of the claim, would, with said items, amount to upwards
of $40,000, (those augumenting the aggregate to such amount having
- been in the stating the claim to the State Department estimated as
covered by the item charged for the said guano therein, and therefore
omitted to be specifically stated, and also the property of which he
is despoiled, being estimated at the cost in the United States, merely,
as is shown by the deposition of Captain Gibbs,) and your memorialist
also shows that since December, 1854, a large amount in quantity and
value of the guano on said isle has been abstracted under the authority
of the government of Venezuela, for which, your memorialist respect-
fully submits, said republic of Venezuela should be compelled to pay
to him, upon the restoration of said isle. .

7. That the republic of Venezuela has not and never had a shadow

AVES ISLAND. : 131

of right or title to the said isle or the guano thereon; and her only
pretenses in justification for the forcible expulsion of your memo-
rialist’s workmen and agent therefrom, and for despoiling him of
his property, are, that your memorialist’s agent was not a commis-
sioned officer of the United States, authorized to hoist the flag of the
United States thereon and occupy the same; and a fraudulent paper
in Spanish, alleged by it to admit the title of Venezuela, procured by
misrepresentation, crime, and violence, by the officers of Venezuela from
the agent of your memorialist, though said agent was without author-
ity to sign the same. And your memorialist annexes hereto a sketch
showing the location of said Shelton’s Isle with reference to several
of the West India Islands and to the coast of Venezuela, by which it
will be seen that said isle is more than three hundred and fifty miles
from the latter, whilst it is less than half the distance from several of
the former; and, being separated from it by the open sea, Venezuela
has no claim upon the ground of contiguity or being appurtenant.

8. That your memorialist claims that, until otherwise declared by
a law of the United States, he was and is entitled, as the discoverer of
said desert and desolate guano rock called Shelton’s Isle, to the exclu-
sive use of the guano thereon and of said isle, in virtue of said dis-
covery and his possession aforesaid, the soveignty and jurisdiction
thereof being vested thereby in the United States; but that your
memorialist is informed that his claim to said exclusive ownership of
said guano and said isle is contested, and alleged to be invalid, unless
the federal government of the United States do recognize the same
and vest said ownership in him by joint resolution or act of Congress
- to that effect.

Therefore, your memorialist, humbly but confidently relying upon
the just and liberal protection and aid of Congress, prays that such
resolution or act may be passed for the benefit of himself and associ-
ates, specially referring to said isle, and confirming the right of your
memorialist and his associates thereto, provided your honorable bodies
may deem such action requisite to confirm said right; or that such
other action may be had in the premises to obtain and secure your
memorialist justice, as to the wisdom of your honorable bodies may
seem meet.

And your memorialist, as in duty bound, will ever pray.

PHILO 8S. SHELTON, for self and others,
By H. 8. SANFORD, Attorney in fact.
Dersy, Connecticut, April 19, 1856.

Mr. Marcy to Mr. Sanford.

DEPARTMENT OF STATE,
Washington, May 1, 1856.
Sm: I have to acknowledge the receipt of your communication of
the 19th ultimo, with the inclosed copy of Mr. Shelton’s memorial to

Congress.
I am, sir, &c., W. L. MARCY.
Henry S. Sanrorp, Esq., .
Derby, Connecticut.

ice AVES ISLAND.

Mr. Sanford to Mr. Marcy.

Dery, May 9, 1856.

Srr: I have this moment received from the persons I employed
to prosecute it, a deposition of Captain James Wheeler, who was
employed as agent for Lang & Delano at Shelton’s Isle. It is offered
in behalf of Mr. Shelton, e¢ al., to show the damages sustained and the
quantity and value of the guano. You will notice that Captain
Wheeler prefers a claim on his own account, but which does not in any
respect conflict with that of Mr. Shelton, or Sampson & Tappan.

I would call your attention to a copy of a letter appended trom the
Foreign Office, London, to Mr. Dallas, enclosing an extract from the
report of Commander De Horsey, of the British Navy, as to the guano
on Shelton’s Isle. The original papers received from Mr. Dallas, I
will forward in a few days. .

Very respectfully, your obedient servant,

- , H. 8. SANFORD.
Hon, Wiiiiam L. Marcy,
Secretary of State, cc.

Mr. Sanford to Mr. Marcy.

Dersy, May 10, 1856.

Sir: I have the honor to inclose, herewith, to be filed in the depart-
ment as testimony in the case of Philo 8. Shelton e¢ al., the deposition
of Richard Thornell, one of the employés on Shelton’s Isle.

I inclose also a copy of a letter from Mr. Hammond of the Foreign
Office, in the absence of Lord Clarendon, to our minister, Mr. Dallas,
with extract from a report by Commander De Horsey, of H. B. M.’s
ship Devastation, to Commodore Henderson, and which I have lately

received from London, to be filed as testimony with Captain Gibbs’s
deposition in the Shelton’s Isle case.

I have the honor to be, very respectfully, your obedient servant,

H. 8. SANFORD.

Hon. Witiram L. Marcy,

Secretary of State, &c,

Foreten Orrice, April 11, 1856.

Sime: I referred to the admiralty your letter of the 4th instant,
inclosing a copy of one from Mr. Sanford, requesting your assistance
to procure for him certain specified information as to the visit of her
Majesty's steamer Devastation to the Aves or Bird Islands, and I
have now the honor to transmit to you, herewith, an extract of a letter,
dated the Ist of August, 1854, from Commander De Horsey, of her

AVES ISLAND. 133

Majesty’s steamer Devastation, to Commodore Henderson, reporting
his visit to the above mentioned islands.
I have the honor to be, with the highest consideration, sir, your most
obedient humble servant, in the absence of the Earl of Clarendon.
E. HAMMOND.
G. M. Datuas, Esq., &c ,

Eatract of a letter from Commander De Horsey to Commodore Hender-
son, dated August 1, 1854. ;

‘‘Having obtained information at St. Thomas that two or three
vessels had been seen at the small uninhabited islands of Aves, in
latitude 15° 40’ and longitude 63° 36’, and the trades hanging well
to the northward, enabling me to fetch down, I proceeded there, and,
on arriving, found three American vessels—a brig, a brigantine, and
a schooner—employed in shipping guano. They had been there about
ten days, and were expecting a fourth vessel, a bark, all owned by
the captain of the brigantine. The owner of the vessels informed me
that the guano was but slightly inferior to the Peruvian, and better
adapted for tobacco lands, and that it would be worth $35 per ton in
the United States. At a rough estimate, I should say there were
about 200,000 tons of guano on the island, which, at £7 per ton,
would make the island worth one and a half million sterling.

Srars or New York,
County and City of New York, § °°

Before the subscriber, Joseph C. Lawrence, notary public of the
said city and State, by lawful authority duly commissioned and sworn,
and by law authorized to administer oaths and affirmations, and to
certify the same, on this seventh day of May, 1856, personally ap-
peared Richard Thornell, who, being by me duly sworn to testify the
truth, the whole truth, and nothing but the truth, in a certain mat-
ter of claim against the government of the republic of Venezuela, in
favor of Philo 8. Shelton and Sampson & Tappan, pending in the
United States Department of State, deposes and saith, on his oath,
that he is about 22 years old, is a native of Ireland, is by trade a
cooper, and at present resides in the city of New York, and is not, as
yet, fully naturalized a citizen of the United States; he says he is
not interested in said claim in anywise, though he lost a winter’s
work by the transactions the claimants complain of; he says that he
considers that there was 200,000 tons of guano on Aves Island, now
called Shelton’s Isle, in the Caribbean sea, when he first went there,
in July, 1854, with Captain Gibbs; one half of it, he thinks, could
be called first class; and the best of it was worth—to any one who had
vessels and the privilege of taking it free, and the privilege of the

134 AVES ISLAND.

wharves and other conveniences in the establishment that Captain
Gibbs had charge of there, and labor sufficient to get it—at least $15
a ton on the island. It costs but $7 or $8 to fetch it to the United
States, and the lowest that the best of it ought to bring in the United
States was $35 per ton. There was at least 75,000 tons, or more, of
the best quality on the island, in his opinion. He says he staid on
the island till November 21, 1854, and knows all that occurred pre-
viously. What he got off was mostly inferior, as they had to clear
away as they went, and take the nearest the wharf, in order to get at
the best. He says that he thinks the wharf built by Captain Gibbs
was worth there—and he means by worth its cost at the island when
finished—at least six thousand dollars, adding in freight and time
lost to vessels, and the labor and expenses of all kinds there. We
had twenty-eight men besides the sailors on board the John R. Dow,
(and the crew were twelve or fifteen more,) and Lang or Captain
Wheeler’s company and ours helped each other fix the wharves. Ours
was prepared in Boston, and ironed, and was of good solid timber, ©
and was built in fourteen feet water at its out end, and extended eighty
feet from the land, and was about twelve feet wide, and laid on horses
kept firm by being surrounded with heavy rock sunk round each one.
Captain Gibbs had seven houses, besides several sheds, which were |
framed in Boston; and I think the houses cost, to put them up out
there, $750 or $800 a piece. They were framed to stand the West
India hurricanes. The sheds cost considerable to get them there; I
suppose a thousand dollars would pay for them. We generally had
at least thirty-five men in our party on the island, and our supplies
came out from time to time on different vessels from the United States,
and we caught some fish there, though the time lost was as much
as they were worth. Captain Gibbs always had a plentiful supply of
stores there, such as provisions, and sometimes exchanged with his
vessels there. All his water had to be brought there in casks. He
kept an ample supply; he had not less than ninety or one hundred
large casks generally on hand, and the vessels took away casks nearly
every trip, which were returned filled. Captain Gibbs also had plenty
of implements—tools of all kinds, barrows, and everything necessary
for such an establishment—all of which must, at the island, have stood
the owners in at least ten thousand dollars. I do not think his outfit
on the island could have cost less there. I do not mean to include
in this the wharf, or houses, or sheds, or the extra cables and anchors
for moving the vessels which were kept there, or his extra launches or
boats, of which there were two launches that must have cost several
hundred dollars, used for lading the guano, but I mean only his stores,
provisions, medicine, implements, barrows, tools, and the like. He
further says he believes the stock was kept up, and was particularly so
towards the last of the time, as it was intended to push the business
that winter, and he thinks there was more than ten thousand dollars’
worth there. He says he never saw a list of them, but has a general
recollection of them, and a general knowledge of the cost of such things
in the United States, and there was generally supplies for a couple of
months ahead for thirty-five or forty men, besides the implements, &c. ;
and besides that, there was the cannon and sundry small arms, and

_AVES ISLAND. 135

powder and ball. Any shipmaster or merchant can judge of the freight
out. These things were indispensable to the business. I have no doubt
if they had not been disturbed that those who were in possession of
- the guano would have made an immense fortune out of the island. I
reckoned Shelton and Sampson & Tappan would make a million of dol-
lars at least, and have no doubt they would if the Venezuelans had not
interfered with us. Several of their vessels were disappointed in car-
goes, as I heard, by being driven off. I heard that a ship called the
J, N. Cooper was driven away in January, 1855. We saw no United
States men-of-war out in those parts while we were there, but several

of other nations. I think they ought to have been down there. I.

think Captain Gibbs kept on hand six or seven thousand dollars’ worth,
at least, of provisions, stores, implements, water casks, barrows, and
other property, besides the wharf and houses, and sheds in his charge,
and the boats that cost several hundred dollars, while I was there. I
think the hiring of the vessels in the trade cost $250 or $310 at least.
When I say six or seven thousand dollars above, I mean the cost in
the United States. I have before said out there they were worth ten
thousand. If they had not been driven off, I should have gone back
there. I know Captain Gibbs was there in the M. H. Pomery.
RICHARD THORNELL.

Srate or New Yorx, seal
City and County of New York,

Be it remembered that on the day and year first aforesaid, said
Richard Thornell appeared before me in person, and was duly sworn
as aforesaid by me, and made answers to questions propounded to him
on behalf of said claimants, as above stated, and the same were reduced
to writing in my presence, and carefully copied, and read and explained
to him, and he deposed that the same so subscribed by him were true,
according to the best of his knowledge and belief.

[x. 8.] _ In testimonium veritatis I hereunto set my official seal, at my

a office, No. 67 Wall street, the day and year first aforesaid.

JOSEPH C. LAWRENCE,
Notary Public.

Mr. Marcy to Mr. Sanford.

DEPARTMENT OF STATE,
Washington, May 16, 1856.

Sir: Your communication of the 9th instant, transmitting the
deposition of Captain James Wheeler, in support of Mr. Shelton’s
claim, and your letter of the 10th instant, covering the deposition of
Richard Thornell, and copy of papers from the British Foreign Office,
relating to the same subject, have been received.

Iam sir, &c.,
W. L. MARCY.
Henry S. Sanrorp, Esq.,
Derby, Connecticut.

136 AVES ISLAND. .

Mr. French to Mr, Marcy.

Wasuineton, June 15, 1856.

Sir: The inclosed copy of a certificate, under oath, of Albert Smith,
was forwarded to me by Messrs.,Lang & Delano, of Boston, to be filed
in the department with the papers relating to their claim vs. the Vene-
zuelan government.

Respectfully,
B. B. FRENCH,
Attorney.
Hon. Wii11am L. Marcy,
Secretary of State.

I hereby certify I sailed from Boston, United States of America, in
_ the American brig John R. Dow, Gibbs, master, for the Aves Island,
in the Caribbean sea, to procure a cargo of guano, in the month of
June, 1854. That I was to take charge of the said vessel on her
homeward voyage, provided she procured a cargo of guano, as Captain
Gibbs was to remain at the said island. I also certify that I was em-
ployed by Philo S. Shelton, merchant of Boston. I further certify
that on our arrival at the Ave sIsland, we found there the brig M. H.
Comery, and that the island had been already taken possession of for
Lang & Delano, merchants of Boston, by their agent, Charles H.
Lang, who without pay or remuneration permitted Captain Nathan P.
Gibbs, agent for P. 8. Shelton and others, of Boston, to inclose a por-
tion of said island for said Shelton and others. And I further certify
that we loaded the brig John R. Dow with guano, and that I, as
master, brought said brig to Boston, leaving the island in possession
of Charles H. Lang, as agent for Lang & Delano, and Nathan P.
Gibbs, as agent for P. 8. Shelton and others.

ALBERT SMITH.

CoMMoNWEALTH oF MASSACHUSETTS,
County of Suffolk, a
Personally appeared before me, Daniel Sharp, jr., a notary public
by lawful authority commissioned and duly qualified, Albert Smith,
and made oath that the within statement by him subscribed is true
according to the best of his knowledge and belief.
In testimony whereof I have hereto set my hand and affixed my
official seal this day and year above written.
[ SEAL. | ~ DANIEL SHARP, Jr.
Notary Public.
Boston, May 22, 1856.

AVES ISLAND. 137

Mr. Sanford to Mr. Marcy.

Dersy, CoNNECTICUT,
. June 30, 1856.
Str: I inclose herewith, to be filed in the Shelton’s Isle case, a
printed deposition of John McCabe, one of the workmen employed on
Shelton’s Isle, duly authenticated, and which I have this day received
from my agent in New York, who took the same. ‘The reason for its
being printed is, that the first manuscript contained some informality,
and the notary public has explained in his certificate that this is a
correct copy of the first, and to save, moreover, trouble in copying.
I inclose also a copy for the use of the department, to be sent to Mr.
Hames, if it thinks proper, after appending the notary’s certificate.
I have the honor to be, very respectfully, your obedient servant,
H. 8. SANFORD.
Hon. Wm. L. Marcy,
Secretary of State.

Copy of deposition of John McCabe, original, duly certified, on file at the
State Department.

UNITED STATES OF AMERICA.

Puito 8. SuertonandSampson& Tappan, | Claim for indemnity, &.,
| for dispossession of Shelton’s

US. Isle, and taking property,
&c., in 1854, and keeping it
THe Repusiic or VENEZUELA. J from their possession.

John McCabe, a witness for claimants, being duly sworn to testify
the truth, the whole truth, and nothing but the truth, touching said
claim now pending in the State Department of the United States, and
being duly cautioned according to law, doth depose: that he is of law-
ful age, and is a citizen of the United States, and resides in the city of
New York; that he is not pecuniarily interested in said claim; that he
went to the isle with Captain Gibbs, in the John R. Dow, and arrived
there in July, 1854, the same day that Captain Wheeler did, in the
brigantine M. H. Comery, and that they both landed next day (sea

time;) that he staid there till Christmas, 1854, when the Venezuelans -

took possession by military force; that he thinks there were 200,000
tons of guano on the island, and that was the general estimate, and
one half was first-class if carefully procured. That he won’t pretend
- to give a positive valuation, but he thinks that there were at least
75,000 tons on Captain Gibbs’s part of the island, worth $13 or $14 a
ton, considering that he had all the means of gathering it and loading
it prepared for his use, and hands there also; that he means the value
at the isle to the owners, they having these means, (wharves, houses,

~~

138 AVES ISLAND.

boats, and the like,) and he thinks the freight ought not to be more
than $8 per ton to the United States in the winter time; and if any
one bought it at the island for the price he states, at the generally
going prices in the United States, they would make good freights, and
covering all expenses he supposes would make heavy profits, provided
they know how to get it up for market, and how to sell it. The chief
part we sent off was the most inferior sort on the island, which Cap-
tain Gibbs got out first-to reach the best. Captain Gibbs took out
twenty-eight men in the Dow, besides the sailors, twelve or fifteen
more, and he built a wharf 80 feet out, and in 14 feet water; it was
framed, ready to be planted, in Boston, and taking it there, and the
labor and time spent there on it, deponent says would make it cost at -
the island at least $5,500, if not more. Captain Gibbs also carried
out and put up seven houses, and deponent thinks that they cost at the
isle somewhere about $750 apiece; they were built strong, in order to
meet the heavy winds and sometimes hurricanes in that latitude.
Besides the houses, there were several sheds, which he supposes cost all ©
together $900 or $1,000. Captain Gibbs took plenty of supplies of all
kinds proper for the party, and all sorts of tools and implements, and
fire-arms, and two cannon and ammunition, and a supply of boarding-
pikes and cutlasses. Deponent says he don’t know exactly what to
say these things all cost at the island, but there was a full outfit suit-
able for such an expedition, and keeping up the same, and he thinks
taking them, and all expenses attending them, cost for all the time
they were there—for supplies and other things kept coming out all the
time—must have cost them well nigh to eighteen or twenty thousand
dollars in all, leaving out the wharf, houses, sheds, and several extra
boats they had, and extra cables and anchors. He thinks they gen-
erally had two months’ or more supplies of provisions on hand. They
had over a hundred water casks. He can’t specify all things. He
was there when Dias first came, about the 12th or 13th of December,
1854. He had to help boat him and his soldiers ashore, and they
were the most miserable, shabby-looking set of vagabonds pretending
to be regulars he ever saw. They were badly off in every way, and
we had to feed and clothe the poor wretches for humanity’s sake.
After they eat and drank awhile, some of them would swell and talk
large, especially the officers, till they got hungry again. The talk at
the island we got from them was, that their government owned all
the guano islands in these parts, and that they were part of a squad-
ron going round to take possession and drive away everybody else,
and that in a few days a big steamer and other vessels with troops
were coming to the island. The Venezuelans said that the ‘‘Gobierno
Yankos’’ had given it up to the republic, and that both had formed a
company that had several millions capital, and that several of the
principal officers and head men of our country and of theirs were
joined in it and would make their fortunes by it, and that they ex-
pected a good slice themselves. They said our minister or consul in
Venezuela knew all about it, and knew that the ships and soldiers
_ were out visiting the guano islands to drive everybody off but the
company. ‘They said we should have to go, as the United States
had agreed to it. This was their current talk. We all knew that

AVES ISLAND. 139

Dias had given Captain Gibbs and Charles Lang, on the 12th or
13th of December, a paper in Spanish, which we generally understood
was a protection against the squadron that he said was coming down,
and an order not to disturb us. We heard that afternoon that he
wanted Captain Gibbs to sign a paper in Spanish, saying he would
allow his soldiers to stay there and keep everybody but our parties off,
and feed them, while he was gone down to Laguayra, and see what
his government wanted to be done, and what the United States had
agreed to about the island. Captain Gibbs refused for several hours;
said he did not read Spanish, and he would not sign anything; and
that unless the United States had agreed to give up the island, the
Venezuelans had no right, and he would not acknowledge any, and
he had no right to sign any paper, and it might commit him. Dias
said over and over again that it did not acknowledge his claim, and
that he did not want any such thing; and after talking smooth
awhile, then he would blow and talk big, and then coax again;
and he went round among all hands and seemed a good deal
troubled, as if he had his hands full. Finally, towards night, Cap- ~
tain Gibbs, through his representations, signed his paper, and Lang
also, and he then cleared out, leaving several of his soldiers there and
one man who was an officer. We had to give these fellows victuals —
and clothes and drink and tobacco and cigars, and shelter to sleep
on, for about two weeks, but they were all too lazy to work. I never
saw such a gang of worthless human beings in the whole course of my
life. When the second party came to the island, the fellows ashore
undertook to salute them, and one of them got wounded in firing the
cannon by his ignorance and awkwardness, and they took him away
to St. Thomas for a doctor, and he died. They came back and landed
more men late at night, on Christmas or the day after, and stationed
their soldiers, with loaded muskets and fixed bayonets, all around,
and pretty soon announced that they took possession, and that we
should not take any more guano, and must go off the next day.
They said we should not hoist our flag any more. Their sentinels
were kept stationed around our stores, and at the pits, and on the
wharves, and at the flag-staff, all night, and kept there till morn-
ing, and till we went away. They helped themselves to all they
wanted. In the morning Captain Gibbs did hoist our flag, in spite
of the sentinel at the liberty-pole, and hailed the vessels to send their
crews ashore. Our party wanted to lick the vagabonds off the island
and take the schooner. We could have tied the whole concern in
fifteen minutes, and captured their vessels besides; but some of Lang’s
party were not disposed to go in for the fight, and Captain Gibbs said
he did not know what the United States government might have done
about the island; and it seemed that our minister must have known
the vessels were coming down, and that it would be best, on the
whole, not to have any bloodshed, but to make it necessary for the
Venezuelans to show force and demonstrations, and then come home
and report the facts to the President, and see if he would let our
country be run over and cowed down, and such a set rob American
property with impunity. We never saw any United States ship-of-
war down there, but several of other nations. I think there ought to

140 AVES ISLAND.

be some men-of-war cruising about to protect our citizens, and that
somebody is to blame that it is not done. Our country is not consid-
ered to be of much account in the way of protecting our commerce, as
well as I could learn.

The French and English, Dutch and Danish men-of-war people,
when they came there, inquired where our men-of-war all were? I
felt mighty mean when I saw the stars and stripes hauled down, and
the Venezuelan rag hoisted in its place. Captain Gibbs came away
in a few hours. He was not allowed, unless he chose to make fight,
to take off but very little of the provisions and other things. He left
two launches or boats, most all of the implements, and tools, and bar-
rows, and nearly all the provisions, I should say; he left seven or
eight thousand dollars’ worth, at least, of property, besides the wharves
and houses and sheds. What he did bring away was not of much
use or value, except the cannon and small-arms, for the Venezuelans
kept most of the provisions for themselves to eat. They kept the chief ©
of our water casks. I came off on the Amazon, and went to Holmes’
Hole, and got there 28th of January, 1855; and my passage was set-
tled by claimants. The Amazon had about 490 tons of guano on board.
The Viator had but part of a cargo, and the Mary Pearce was not
allowed to take any. Captain Gibbs got everything he could get
away, or was allowed to. He says he feels bound and desirous, as a
citizen of the United States, to express his sentiments about these
transactions. The island, if well managed, could have been made to
yield more than two millions of dollars, and the Venezuelans, in my
opinion, had no more right to take it from us than they had to take a
ship on the high seas. He says he don’t know how this insult may
be plastered up; but he considers it a most rascally affair, and if the
government don’t make the mulatto vagabonds pay for this piratical
act, and all damages, and give up the island, they might as well quit
trying to be a government. He says he looks at it as worse than the
Black Warrior case, or the Greytown case,.or any other case that he
has heard of, except the late massacres at Panama and Virgin bay;
and that he should not wonder if those who perpetrated them, (for they
are the same breed of people,) were encouraged to the act by having
heard that the United States had not done anything in this case, and
that it was safe to impose ona Yankee. He says he has insisted on
putting in this expression of his opinions, so that they be wrote down
in the records,

JOHN McCABE.

Mr. Sanford to Mr. Marcy.

Derpy, Connecticut, July 3, 1856.

Str: Messrs. Lang & Delano, of Boston, have preferred to the de-
partment certain claims for indemnity, &c., &c., on account of the
outrage and spoliation in December, 1854, by Venezuela, at Shelton’s
Isle, and for rights to said isleand the guano thereon. Captain James

AVES ISLAND. 141

Wheeler has also preferred his claims in the deposition I transmitted
to the department on the 9th of May last. Wheelwright & Cobb have
also preferred claims to the department based on said spoliations. I
regard this last as connected with those of Lang & Delano and
Wheeler, and in fact derived from and founded thereon, and that they
are all one and the same. P.S. Shelton and Sampson & Tappan’s
claims, represented by me, are not in anywise connected with the
- others, and my principals do not recognize the others alluded to in the
correspondence between the department and myself. Nevertheless,
neither my principals nor myself feel it to be a duty to intermeddle in
the other claims in any degree, except so far as to see that they do not
in anywise compromise or affect injuriously the rights we conceive
belong to us. We have reason to believe that the other claims may
affect us in that way, unless we take steps in time to prevent such re-
sult. In this view of the case it is highly important to Mr. Shelton
and Sampson & Tappan, that the letter of Lang & Delano to the
Hon. Mr. Cushing, Attorney General of the United States, dated
August 29, 1854, and in reply to which your official letter to them ot
12th September, 1854, was written, should be preserved to be used by
us as testimony in said case, and especially is it important to Captain
James Wheeler that it should be so used. He is referred to in it as
‘the agent’”’ of- Lang & Delano. You will see the importance of this
letter by referring to Captain Wheeler’s short affidavit, dated June 8,
1855, and that of June 15, 1855, filed in the department in the month
of June, 1855. I was not enabled when last in Washington to ascer-
tain whether the original or a copy of the letter of Lang & Delano to
Mr. Cushing was on the files of the State Department.

To show turther the pertinency of that letter and its impertinence in
connection with Captain Wheeler’s three affidavits, I have now the
honor, at the request of the assignees of Captain Wheeler, who have
received from him an irrevocable power of attorney to their use of said
contract, and of all his rights under it, and of all the claim he asserts
to Shelton’s Isle, to inclose a copy of the original contract between
Captain Wheeler and Lang & Delano. The assignees will forward
‘the letter of attorney and assignment hereafter. You will perceive
that, of course, Captain Wheeler’s assignees will be entitled to receive
a moiety of whatever Lang & Delano, or those who are connected
with them, may receive on account of the guano, or of the island, or
of the profits they would have made. It may be observed that the
agreement inclosed makes no reference to Aves or Shelton’s Isle,
which it appears by your letter to Lang & Delano of September 12,
1856, they claim to have discovered by their agent, referred to in
their letter to the Attorney General of the 29th August. In Lang &
Delano’s letter to you, dated January 15, 1855, they state that they
had the pleasure to address you in September, and to which they re-
ceived an answer September 12th. I presume this is an error on their
part, and that they mean to refer to their letter to the Attorney Gen-
eral, to which you replied September 12th, as I understand there is no
letter of that kind from them to you on file.

May | ask for a copy of the letter of Lang & Delano to the Attorney
General, as above specified.

142 AVES ISLAND.

I presume copies of the depositions of Captain James Wheeler,
Richard Thornell, and John McCabe, heretofore transmitted to the
department, have been sent by it to the United States minister at
Caraccas.

I have the honor to be, very respectfully, your obedient servant,

H. 8. SANFORD.

Hon. Wittram L. Marcy,
Secretary of State, &c.

Agreement made and concluded upon this 20th day of June, A. D, 1854,
by and between James Wheeler, master mariner, of Boston, Massa-
chusetts, of the first part, and John W. B. Lang and William. W.
Delano, carpenters, under the firm of Lang & Delano, both of Boston,
State of Massachusetts, of the second part.

The above parties agree to fit out vessels as may be required for
such time as is hereinafter specified, for the purpose of procuring
guano. It is agreed that the party of the first part and the party of
second part shall have and divide equally in whatever profit or loss
may accrue from chartering and freighting vessels and all expenses
connected therewith, and from the sale of guano.

The said party of the first part to have charge of loading all vessels
at guano islands, and to aid in procuring vessels when in the United
States. The said party of the second part to have the consignment,
sale, or disposal of all the guano or other merchandise shipped and
receive proceeds of same.

It is understood the party of the second part shall settle, so far as
they can with the party of the first part, semi-annually, or at such
time after as may be practicable.

It is understood, if the parties of the second part think it for the
mutual benefit of all concerned, to purchase any vessel or véssels during
the absence of the party of the first part from the United States, they
are at liberty to do so, said vessels to be owned in common—by the
party of the first part one half, and by the party of the second part one
half.

It is also understood and agreed that should the party of the second
part be in need of any funds or moneys (during the absence of the
party of the first part) for any purpose whatever, they are authorized
by this agreement to value on Phineas Coleman, and he is hereby em-
powered to advance them on account of the party of the first part such
sum or sums as they may require, not exceeding thousand
dollars.

The agreement to continue in force for the term of — years.

Witness our hands, this 21st day of June, 1856.

LANG & DELANO.
JAMES WHEELER.

[Nore.—The blanks are unimportant. The context shows the sum
was over one thousand dollars and the term over one year. |

AVES ISLAND. 143

Mr. Marcy to Mr. Sanford.

DEPARTMENT OF STATE,
Washington, July 7, 1856.
Str: I have to acknowledge the recept of your letter of the 30th
ultimo, transmitting an authenticated copy of the deposition of John
McCabe in relation to the claim of Shelton and others against the
government of Venezuela.
lam, &c.,
W. L. MARCY.
Henry 8. Sanrorp, Esq.,
Derby, Connecticut.

Mr. Thomas to Mr. Sanford.

DEPARTMENT OF STATE,
Washington, July 8, 1856.

Sire: Your letter of the 3d instant is received, and, in compliance
with your request, I inclose herewith a copy of the letter of Lang &
Delano to the Attorney General of the 29th August, 1855, and which
was referred to this department, and is here filed in original.

In reply to your inquiry whether the depositions of Captain Wheeler,
Richard Thornell, and John McCabe have been forwarded to Caraccas,
I have to acquaint you that a copy of your letter of the 24th June,
1855, and of the accompaniments, among which were Captain Wheel-
er’s depositions of the 8th and 15th June, 1855, was sent to Mr. Hames
on the 20th December, 1855.

It is not convenient to discover with certainty whether, among the
many documents forwarded from time to time, the deposition of Thornell
has been included; and with reference to that of McCabe, received a
day or two ago, I have to state that, inasmuch as the department
expects to learn, by the first arrivals from Caraccas, something defi-
nite of the views and intentions of the Venezuelan government in the
matter under consideration, it is deemed inexpedient to cumulate
' further testimony until it is known upon what points the government
of Venezuela fail to acknowledge the sufficiency of the evidence already
presented. —

If, however, as the representative of Mr. Shelton, and those more
immediately connected with him in his claim, you do not acknowledge
the propriety of this reserve, the deposition of McCabe will be for-
warded to Venezuela, and, if it be in your power to refer to the letter
with which Richard Thornell’s statement was inclosed to the depart-
ment, a copy of that also will be sent to Mr. Hames.

Iam, sir, &c.,
J. A. THOMAS,
Assistant Secretary.
Henry 8. Sanrorp, Hsq.,
Derby, Connecticut.

144 AVES ISLAND.

Mr. Sanford to Mr. Thomas.

Dersy, CoNNECTICUT,
July 11, 1856.

Str: Your letter of the 8th instant has been received, and at same
time one from Mr. Marcy of the 7th instant, acknowledging the re-
ceipt of what he erroneously calls ‘‘an authenticated copy’ of the
deposition of Mr. John McCabe. It is an original, not a copy, though
I inclosed a copy with it, leaving the certificate to be added to it.
Another manuscript original was first made and sworn to by Mr.
McCabe, but that sent, it will be seen upon an examination of the
notary’s certificate at the conclusion of the printed one, was again
sworn to, and at another date, and again signed by the witness, and
is, therefore, equally an original with the first manuscript. I refer
to this to prevent mistake hereafter.

- You will find, upon an examination of my letter of the 8th instant, .
that my inquiry there made was not respecting the transmission to
our minister at Caraccas of the deposition of Captain Wheeler of the
8th and 15th June, 1855, which, as I was apprized on the 24th of
March last, had been sent to Mr. Eames in December, 1855; but my
inquiry was whether the third and last full and detailed deposition of
Captain Wheeler, transmitted by me to the department on the 9th of
May, 1856, and that of Richard Thornell, transmitted by me on the
10th of May, 1856, and the receipt of both which was acknowledged
by the department in its letters to me of the 16th of May, 1856, had
been sent to Mr. Eames. Both these depositions are in manuscript,
and are full, and are deemed important. If mislaid or lost, on advice
thereof I will supply the loss by new ones. Unauthenticated copies
are filed with the committees of both houses of Congress having charge
of Mr. Shelton’s memorial there.

As these depositions, and also Mr. McCabe's, are deemed of conse-
quence, I should, as the attorney of Mr, Shelton, and of Sampson &
Tappan, certainly prefer that the United States minister at Caraccas
should have copies of them sent to him at the earliest possible period.
Such great delay has already occurred in the procurement of any
satisfaction for this outrage, that the claimants almost despair of
getting anything.

In the procurement of proofs in this case, I have been obliged to act
on my own judgment as to what might possibly be required. In an-
swer to my inquiry of the 8th of last March as to ‘‘ what proof the
department would deem requisite and sufficient,’’ or rather, as to what
points the department desired testimony, I was, on the 24th of the
same month, told in reply that ‘‘it is not the province of the depart- —
ment to designate the nature of the evidence by which the claimants
should substantiate their claims. It is to be presumed, of course, that
the same care will be taken to obtain the most positive proof of which
the case is susceptible, as though the claims were to be subjected to the
scrutiny of a court of justice.’’

I presume from the remark in your letter of the 8th instant, ‘it is
deemed inexpedient to cumulate further testimony,’’ &c., that the

AVES ISLAND, ‘ 145

department is satisfied that I have already furnished more than suf
ficient on all the points involved. I feel happy that I am relieved
from the task of procuring any additional proofs, though if I err in my
construction of your remark and am so advised, and that the depart-
ment desires further proofs on any point, I will cheerfully furnish it if
the suggestion is made before the witnesses are scattered.

. I inclose another printed copy of Mr. McCabes deposition, to which
the certificate is not appended.

I am much obliged for the copy of the very extraordinary letter of
Lang & Delano upon the subject of Lang & Delano’s claim, (of the
the contents of which I had been previously advised otherwise.) So
far as it interferes with that of my clients, I may address the depart-
ment fully later.

You did not notice the receipt of the copy of Captain Wheeler’s con-
tract with Lang & Delano: as it was attached to my letter I presume
you did not overlook it.

I have the honor to be, very respectfully, your obedient servant,

H. §8. SANFORD.

Hon. J. A. THomas,

Assistant Secretary of State.

Mr. Sanford to Mr. Marcy.

Drrsy, Connecticut, July 15, 1856.

Sre: Information received from my clients in the Shelton’s Isle case
(P. 8S. Shelton and Sampson & Tappan, of Boston) induces me to fulfill
what I consider to be a bounden duty, viz: to request that their claim
should not in any manner or form be connected with that of Lang &
Delano, or any other persons who have preferred claims relating to
that isle.

In a letter dated 14th January last, you were advised of the wish
that these claims should be kept disconnected, and we then refused to
have any concern with the others. We trust that the depositions and
proofs we have procured and filed will not be allowed to be used by the
other parties to supply their own negligence or inability to get proofs;
and above all, we trust that our business will in no respect be mingled
or mixed up with the others.

These claims are separate and distinct, and in some respects are
adverse to each other. At a proper time, when our interests more than
now may demand such a course, we may furnish some testimony as to
some of the other claims, showing the propriety of our urging the right
of having ours kept distinct from all others. We know it is just,
honest, and reasonable, and desire it considered by itself, and not con-
taminated or prejudiced by others.

I may state as one reason for this course, that it is our determina-
‘tion, if Venezuela does not, between this and the next session of Con-
gress, make proper reparation for the outrage committed upon our
property in December, 1854, to seek the power of obtaining redress
from Congress. Of the particulars of our injuries, the department was

Ex. Doc. 10 10

146 ‘ AVES ISLAND.

furnished a detailed statement January 15, 1856, and which we have
understood the department presented to the Venezuelan government,
amounting to $341,000. On the first day of next session, if the depart-
ment does not advise to the contrary, we intend to solicit from Con-
gress to grant us letters of reprisal under the law of nations, to enable
us to obtain that justice Venezuela denies us.

If the department desires a reference to the authorities on this sub-
ject, it will be cheerfully furnished in full. There can be no doubt of
the remedy, and as a ‘‘ peaceful remedy.’’

We have not learned that anything having the appearance of an
intention to do justice is manifested by Venezuela, and feel that the
continued delay is inexcusable. She continues skinning the isle of the:
guano.

Very respectfully, your obedient servant,

H. 8. SANFORD.

Hon. Wiiiam L. Marcy, :

Secretary of State, dec.

P.8.—I would respectfully ask that a copy of this letter be trans-
mitted to Mr. Hames, to be shown to the Venezuelan government.

Mr. Marcy to Mr. Sanford.

DEPARTMENT OF STATS,
Washington, July 21, 1856.

Sir: The urgency of other important business requiring the atten-
tion of the department, has prevented an earlier acknowledgment of
the receipt of your letter of the 11th instant to the Assistant Secretary,
and of the 15th to myself.

In compliance with the request made in the former letter, the depo-
sitions of Captain Wheeler, of John McCabe, and of Richard Thornell, -
will be transmitted to Mr. Hames so soon as it is practicable to make
copies of Wheeler’s and Thornell’s, which, as you are aware, are
somewhat voluminous.

In relation to the sufficiency of these proofs, with those formerly
transmitted, to sustain Mr. Shelton’s claim against the Venezuelan
government, I deem it proper to correct the error into which you ap-
pear to have fallen in your letter of the 11th, wherein you state that
you ‘‘presume from the remark in your [the Assistant Secretary’s]
letter of the 8th instant, ‘it is deemed inexpedient to cumulate further
testimony,’ &c., that the Department is satisfied that I have already
furnished more than sufficient on all the points involved ;’’ and you
express your happiness that you are relieved from the task of procuring
any additional proofs. Were your quotation from that letter precisely
correct, your felicitations would not be unfounded. Quoting probably
from memory, you have failed to appreciate the spirit of the suggestion
offered in the letter of the department of the 11th instant. Therein it
was stated that ‘‘itis deemed inexpedient to cumulate further testimony
until it is known upon what points the government of Venezuela fail

AVES ISLAND. 147

to acknowledge the sufficiency of the evidence already presented.’’
This sentence cannot be construed to express either an admission or
denial on the part of this office of the sufficiency of your proofs, but
had reference solely to the view which might be taken of the case by
Venezuela, and as no decisive result had been attained by Mr. Hames
in his representations of Mr. Shelton’s claim, and especially as the
department was in daily expectation of receiving dispatches from him
containing the exposition of the views of Venezuela, it was thought
that no practical good could be accomplished by forwarding additional
evidence until it was seen upon what points it was necessary.

A copy of your letter of the 15th will be transmitted to Mr. Hames
with the other papers. |

Tam, sir, &c.,
W. L. MARCY.
Henry 8. SanrorD, Hsq.,
Derby, Connecticut.

Messrs. Sampson & Tappan and Shelion to Mr. Marcy.

Boston, July 21, 1856.

Str: We are in a measure unadvised whether the Venezuelan gov-
ernment have indicated any disposition as yet to do us justice for the
Shelton’s Isle outrage, committed more than a year and a half since.

Our counsel, H. 8S. Sanford, Esq., has advised us of all that has
taken place, except that he has informed us that the department
decline, under its rules, to allow copies of the correspondence between
the department and the United States minister, and that of the latter
with the Dutch government, to be furnished, and that he has litle
information on the subject.

He informs us, however, that a letter from General Thomas, Assist-
ant Secretary of State, to him, of the 8th instant, informs him you
expect dispatches by the next vessel from Laguayra. We trust on the
receipt of them you will advise Mr. Sanford forthwith.

Our extreme anxiety on this subject is caused by its importance to _
us and the long delay that has ensued.

We do hope that if delayed any longer our government will allow a
resort to us, under the law of nations, and under the treaty with Vene-
zuela, to letters of reprisals, which eminent counsel say are resorted to
by other nations, and which it is said are not war nor any just cause
for war. We have written Mr. Sanford to-day to address you on this
past point. We supposed that he had made it a point in our memo-
rial to Congress presented by him, but learn from him that he did not.
We have advised him of this letter. We have heretofore refrained
from saying but very little to the department respecting the claim of
Lang & Delano from motives of delicacy, and because it might appear
invidious. It is, however, due to ourselves to say that we have never
had any concern in it, and have always repudiated it as unjust towards
us. They have no claim as discoverers whatever. They pretend that
they had a vessel in the Caribbean sea in 1853, the master of which

148 AVES ISLAND.

saw the island and landed on it. This is utterly incorrect, and they
will not venture to name the vessel or the master, and if the depart-
ment should require them to do so they will evade it. We trust the
department will call for such specification at least, if not for proof.
They say, also, that they subsequently sent a vessel to hunt for that
island, but got no guano, and the pretended excuse is, that the master
they then sent was probably unacquainted with the article. They do
not say that he found this island he was sent to find, and though the
excuse, as the probable one, (not finding the guano,) would seem to
imply that he did find that island. The island that he did find, there-
fore, if he found any, was not Shelton’s Isle, for he could not mistake
as to the guano there. They then say that in June, 1854, they sent
a vessel first to Aves Isle (though they give the latitude and longitude

wrong) with C. Lang, agent, who there found guano. This it seems,.

is their first pretended discovery distinctly alleged. ‘And they next
say their instruction to their agent was, if they found the article of

Mexican guano to remain on the island and to take possession, &c. -

And they say further, they were at considerable expense to find and
to get possession of the isle, &c.

Now, sir, we call your attention to the three affidavits of Captain
Wheeler, of June 8, 1854, January 15, 1855, and of 6th of May, 1856,
on file in your department. Captain Wheeler was Lang & Delano’s
sole agent. Mr. Sanford has advised us that he has forwarded to you
a copy of their correspondence with Wheeler dated June 21, 1854,
which the assignees of Wheeler allowed him to do. This fully proves
that the alleged agency in June, 1854, of Charles H. Lang, was set up
to cut Wheeler, whose name is suppressed throughout by them, of all
his claims, if he had any under his agreement; and Captain Wheel-
er’s affidavit of the 15th June, 1855, shows how and by what means
Lang & Delano obtained their first knowledge of Shelton’s Isle, and
confutes all their long rigmarole subsequently made to the State
Department completely. These papers show that they first sought a
surreptitious advantage of P. 8. Shelton and Captain N. P. Gibbs, and
next sought to take a like advantage of Captain Wheeler, and actually
claimed to be the first discoverers themselves and undermine all the
others. Captain Gibb’s affidavit, and Captain Wheeler’s, show con-
clusively who were the discoverers of the guano. We do not conceive
that their statement of there being only 50,000 tons of guano on the
island is at all important. It cannot surely prejudice us or militate
against us. It shows they know nothing of the facts, and their claim
or statement of damages since filed shows how unguarded they are,
for it is impossible to reconcile them. We have been disposed not to
interfere with respect to the just demand that Lang & Delano may
have for actual false freights, if any, and for pay for their wharf and
property on the island taken from them, but this, even, is all founded
on the permission of our agent, Captain Gibbs, in July, 1854, as
alleged in his and Wheeler’s affidavits, and also to Captain Wheeler
to occupy part of the island; but we protest that they are not entitled
to claim any share of the guano otherwise, We deem it our duty to
protest against their claim; and so far as it may in any wise affect

N

AVES ISLAND. 149

ours, and before it is passed upon, we shall claim the privilege of
furnishing testimony in this regard.

To satisfy you how little this particular statement of the quantity
by them can injure us, we offered, and yet offer, if paid for one half
of 50,000 tons—say 25, 000 tons at "$12 50 per ton, and $28,500 for
our property and damages, to waive our right to all the rest of the
guano and the isle. But if Lang and Delano’s claim is sustained to
the guano it decreases our prospect of getting paid by Venezuela, and
we conceive it to be our duty to protect ourselves against any unjust
pretensions, which may be, used to contaminate ours and to give an
improper coloring and character to what we know is honest and just.
Against this being done we respectfully but earnestly remonstrate. A
reply to this addr essed to Mr. Sanford, Derby, Connecticut, will co
us, as we have advised him hereof.

We are, sir, very respectfully, your obedient servants,

SAMPSON & TAPPAN.
PHILO 8. SHELTON.
Hon. W. L. Marcy,
Secretary of State.

P.8. We are informed that up to this hour Lang & Delano have
not filed a single deposition, or affidavit, or other proof of any kind
or character in reference to their alleged discovery, or in verification
of their statements in reference thereto. We trust they will be
admonished to adduce it; our just interests and rights authorize us to
make such request.

Sen eae
PSAs:

Mr. Sanford to Mr. Marcy.

Wasutneton, August 11, 1856.

Sir: I have the honor to inclose herewith the deposition of Joseph
Herbert, to be filed in the department in the Shelton’s Isle case, and
copy of which it is desired may be forwarded to Mr. Hames.

Tn a few days other depositions will be forwarded. As I presume,
from the intimation conveyed in your letter to me of the 17th ultimo
that the department is not yet satisfied with the testimony that has
been adduced by the claimants, I should be gratified to learn upon
what points further the department would desire testimony. I hope
I may be advised as to objections made by Venezuela.

Very respectfully, your obedient servant,
H. 8. SANFORD.
Hon. Wri11aM L. Marcy,

Secretary of State.

Scate or New York,
County and City of New York,

I, Joseph Herbert, being sworn to testify the truth, the whole truth,
and nothing but the truth in relation to the claim before the State

150 AVES ISLAND.

Department of the United States, in which Philo 8. Shelton and Samp-
son & Tappan are claimants against the republic of Venezuela, do de-
pose that I reside in Brooklyn, in said State, am of lawful age, and by
occupation I am a gunsmith; that I went to Shelton’s Isle or Aves
Island with Captain N. P. Gibbs, in the brigantine John R. Dow,
from Boston, in July, 1854; that I staid at said island till Christmas
of the same year, when the Venezuelans forced us away; that I think
there was perhaps 200,000 tons of guano there; about one quarter of
it could not be called the best quality. Captain Gibbs and Captain
Wheeler staked off the island between them, and on Captain Gibbs’s
part I should say there was 75,000 tons of pretty good guano, worth
twelve or fifteen dollars a ton to us, as we had everything ready for
loading it to any vessels that might come there. I understood freight
was from six to eight dollars a ton to the United States. We gathered
from July till we went away, after we got our wharf, houses, and other
things prepared. I cannot make an estimate of the cost of the wharf

and other structures we built there, but I have read Captain Gibbs’s,

Captain Wheeler’s, Richard Thornell’s, and John McCabe’s deposi-
tions, and don’t think any of them state their cost too high; and I
agree with them as to their description of the property there, and also
as to that left when we were driven off, and that we brought away. I
came home in the bark Amazon with the other hands. Captain Gibbs
took possession of the isle when we landed in July, as he stated, in the
name of the United States, and hoisted the United States flag and fired

a salute. He said he claimed to be the discoverer of the guano on it —

when out on a voyage of discovery the April before, when Captain
Wheeler was with him as his mate, both being in the John R. Dow,
in the employ of Mr. Shelton. Captain Wheeler went out in July in
the M. H. Comeroy for a Mr. Lang, and he and Captain Gibbs disputed

about his right to go on the isle and take guano for Mr. Lang, but ©

finally Captain Gibbs, rather than have a row, staked off to Wheeler
about half the island. Wheeler built some structures and a wharf,
but they were not as good or as costly as those put by Captain Gibbs.
Captain Dias, who said he belonged to the Venezuelan navy, came
down to the isle in an armed schooner some time near the middle of
December, and, with our aid, landed himself and some men. He said
he came there to take charge of the isle for his government, and that
the United States had consented they should have it. He wanted at
first to drive us all off at once, but he found that would not do, and then
he got Captain Gibbs and Charles Lang to agree to let some of his
soldiers stay there a few days, and to feed them while he went home
for further orders, and he promised, if they would do so, he would give
a paper ordering any other Venezuelan vessel that might come there
while he was away not to disturb us. He did give, I understood, a
paper in Spanish; and I heard also that Captain Gibbs and C. Lang
gave a receipt for it or something of the kind; and I have also heard
that it turned out to be a different paper from what we all understood
it was at the time. Captain Gibbs refused to sign anything for a long
time, and Dias blustered and coaxed and promised nearly half a day
to get it done. He said it was no acknowledgment of the title of any-
body, and he didn’t want any. He threatened if it was not signed as

—e

AVES ISLAND. 151

soon as the steamer of war came down that he expected, that he would
send us away by force. After he got the paper signed he went away,
and about ten or twelve days afterwards another Venezuelan man-of-
war schooner came there, landed more men, and finally forced us off,
unless we fought them. Captain Gibbs and his party were disposed to
resist, but Lang’s folks held back. We could have licked the whole
Venezuelan gang and took their vessel very easily, but Captain Gibbs
thought we might get into a scrape with our own government, which
the Venezuelans said had given up the isle, and he therefore resolved
on peace. They put sentries on our wharf, at the pits, and at our houses
and stores, armed with muskets and bayonets. They tried to keep
Captain Gibbs from hoisting the United States colors next morning,
but he run them up in spite of their sentinel at the flagstaff. We kept
them flying all the time we were on the isle from the first day we
landed. When the Venezuelan schooner first came to the isle on the
last visit the soldiers on the isle tried to salute her, and one of them
got his arm blown off by his bungling, and she took him to St. Thomas
to be doctored, and he died, as I understood. They took possession
when the schooner returned from St. Thomas, having landed more
men, armed, about 10 o’clock at night. We were visited by several
men-of-war of other nations while at the isle, and no one disputed our
right, and I have heard the men belonging to them admit it several
times, and say we'd got a good prize. I don’t think, from the appear-
ance of the island when we first landed, that it had ever been occupied
by anything but birds. There was no sign of man ever having lived
there. We thought it very strange that no United States men-of-war
during the five months and more we were there, and in which time
there were so many American vessels there, did not visit us, and were
not seen or heard of in those parts. This was one circumstance that
made Captain Gibbs and all of us give some credit to what the Vene-
zuelans said about our government having given up theisle. They
said that a good many of the principal men of both countries were
interested in a guano company that had been raised as a speculation,
and that this was the reason the United States would’nt claim the
island, and they said the American minister or consul at Caraccas was
concerned, and a good many others, and they expected Mr. Shelton
was also in the company. I think, after reading the other depositions
above mentioned, that none of them estimated the losses and damages
of Mr. Shelton and those concerned with him too high, nor do I think
they value the guano on theisle too high. Iwas employed by Mr. Shel-
ton; but 1 am not interested in any wise in this case or claim, except to
see justice done, and to do what Ican to aid. I consider the turning oft
of Captain Gibbs and his party from the island as an infamous transac-
tion, and that if satisfaction is not obtained from Venezuela for the insult,
and she made to pay all damages and give up the isle, and pay for the
guano she has stolen since she ejected us, every American citizen should
hide his head in shame for the imbecility of his government. Such, I
know, is the feelimg of all that were there, and I shall never feel content
till I hear that right has been done. I think Mr. Shelton and those con-
cerned with him must have lost more than forty thousand dollars by the
dispossession of them from the isle by the Venezuelans, and by the latter

152 AVES ISLAND.

taking their property, and this without including Lang’s losses, and
without including either the guano left on the isle, which was worth
several hundred thousand dollars more; I should say, at least a million
of dollars, which I believe Mr. Shelton and those connected with him
could easily have made out of the guano, net profit, if they had not
been molested by Venezuela.

JOSEPH HERBERT.

Subscribed and sworn to by said witness, before me August 6, 1856.
L. PITKIN,
Notary Public.

State or New York, aie
City and County of New York, §”°

Be it known that on this sixth day of August, anno Domini one
thousand eight hundred and fifty-six, before me, the undersigned, a
notary public of said city, county, and State, by lawful authority duly ~
commissioned and sworn, and by law authorized to administer and.
certify oaths and affirmations, personally appeared Joseph Herbert, the
deponent above named, of lawful age, who being by me duly sworn, on
the Holy Evangelists of Almighty God, to testify to the truth, the
whole truth, and nothing but the truth, as is stated in said deposition,
and being by me cautioned as to his said oath, according to law, he
informed me that he had had read to him and had also read said depo-
sition, and the same was also again carefully read to him in my presence,
whereupon he subscribed the same and deposed that the statements
therein made, and all and singular the matters and things therein
stated, were truly stated and not otherwise, according to the best of
his belief, and he desired me to certify the same.

Whereof I have hereunto set my hand and affixed my official

[eet] seal, the day and year last aforesaid,
L.. PITA,
Notary Public, New York.
No. 22.] Mr. Hames to Mr, Marcy.

LEGATION oF THE UNITED STATES,
Caraccas, October 9, 1856. |

Sir: I have the honor to acknowledge the receipt of dispatches from
the department to No. 36, inclusive.

In compliance with the suggestion -made at the request of the Aves
Island claimants, and contained in your No. 30, 1 now transmit, in-
closed, a copy of the guano contract concluded between this government
and Mr. J. F. D. Wallace, on the 21st of December, 1854. In look-
ing over ny dispatch, No. 10, under date of April 26, 1855, in which
I gave the department an account of this contract, I perceive that it
omits to state expressly the fact, at that time fresh in the recollection
of the department, but which now appears proper to be mentioned,

: AVES ISLAND. 153

that the negotiation of this contract by Mr. Wallace took place during
my absence from Caraccas on a short visit to the United States, by the
permission of the President. Mr. Wallace arrived here after my de-
parture and had left before my return. I heard nothing of the con-
tract, and knew nothing of any negotiations upon the subject until
February, 1855, when the existence of the contract was made known
to me, and an abstract of its terms put into my hands by one of the
merchants of this city, who, as stated in my No. 10, had previously
purchased of this. government the drafts drawn in its favor by Mr.
Wallace.

I have not yet found an opportunity to make a successful application
for the two other papers mentioned in your No. 30—the official report
of Dias and and the protest of the British charge d’affaires. The
report of Dias may, I think, be difficult to procure. The protest of
the British chargé d’affaires may probably be obtained, but I do not
think that the Aves claimants are right in supposing that they will
derive any help from that document, because my recollection of it after
hearing it read, is as stated in my No. 13 to the department, that it
proceeded upon the idea that Venezuela being in full jurisdiction over
all the guano islands, had opened them all, to all nations, by the res-
olution of July 26, 1855, (transmitted in my No. 12,) and was, there-
fore, by her own. obligatory act, inhibited from in anywise recognizing
or conceding any exclusive right of American citizens in any of the
said islands. Certainly it is not easy to perceive how such a protest,
based as it is upon an act of Venezuelan jurisdiction over all the
islands, including the Aves—asserting as it does the obligation, and,
of course, the validity of that act as against any exclusive American
right or privilege in the islands—and claiming as it does under that
act a common British usufruct in all the guano deposited, can strength-
en the case of American citizens claiming indemnification on the
ground of their exclusive right, as against Venezuela, to the guano on
the Island of Aves. It was in conformity with this view, that while
the British. legation hereupon, at least, an implied recognition of Ven-
ezuelan title, and in avowed maintenance of British interests under
Venezuelan jurisdiction over all the islands, was thus by protest oppo-
sing my efforts to save the rights of American citizens under the Wal-
lace contract in the other guano islands except the Aves, in pursuance
of your instructions, I, in the most express terms, as appears by my
Nos. 18 and 20, and their inclosures, refused to sanction or counte-
nance in any manner the insertion of the Aves in the contract with
Mr. Pickerill, thus leaving to Venezuela no option but either to forbear
from making that insertion, or else, if she persisted in that course,
then to do the act of inserting the Aves as she had done the previous
act.of occupying it, at her proper peril, and in view of the announce-
ment that all the rights and claims of its first American occupants
were fully reserved and would be sustained.

To the view of the case in which, under your instructions, this action
was taken by me in behalf of the claimants, the British protest ap-

pears wholly opposed. Still, as they ask your aid/to obtain that paper

as part of their case, I will endeavor to procure it if practicable, with

154 AVES ISLAND.

the report, but I shall be careful in so doing in no way to accept or
admit the idea in which it is written.

In urging the Aves claim to an adjustment by this government,
coniposed as in great part of an estimated value of the guano deposit
from which the claimants were ousted, I feel seriously the want of more
proof of the value of that deposit. I have nothing of importance on
this point but the estimate of Captain N. P. Gibbs, as given in his
printed deposition transmitted with your No. 30. On the other hand,
it is believed here that the guano taken from the Aves since the Vene-
zuelan occupation amounts to not more than from 800 to 1,200 tons,
not all of this quantity being very saleable; and it is known, or at
least confidently asserted here, that the Aves have been for some time
abandoned as valueless. Iam not warranted by any facts in my pos-
session in disputing this last assertion. I infer from the language of
one of the inclosures in your No. 30, that the importance in this claim
of clear proof as to the value of the Aves guano had not escaped the
attention of the department, and had been by you suggested to the
claimants. The facts of the case as they are alleged here to have since
appeared, show that suggestion of the department to have been alike
judicious and important. I hope the claimants will act upon it, and
transmit to me, through the department, all the proofs on the point
which it may be in their power to obtain.

I have the honor to be, with the highest respect, your obedient ser-
vant,

CHARLES EAMES.

Caraccas, December 21, 1854.

Simon Planas, Secretary of State in the Department of the Interior
of Justice and of Foreign Affairs, of the government of Venezuela,
acting, on the one part, under the express authority of the Executive
power and John D. F. Wallace, a resident of Philadelphia, in the
State of Pennsylvania, on the other part have entered into the following
contract, to wit:

Article first. The right is granted to John D. F. Wallace, to those
with whom he now is or may hereafter be associated, and to their law-
ful successors, collectively and individually, for the period of fifteen
years, to extract guano from the desert island called ‘‘ Las Aves’”’ and
from any other islands belonging to the republic in which said article
may be found. .

Sec. 1. Should Venezuela, by any contingency or cause, happen
to lose the right which she now holds over said island, it is under-
stood that the fifteen years settled upon in this article shall be
reduced to the time which will have elapsed between the date of this
contract and the day when the loss of such right will have occurred ;
and in such an event, there shall be no ground for an indemnity, and
upon a settlement of the account, the balance resulting therefrom shall
be paid.

Sec. 2. Said island lies in latitude, north, 15° 45’, and longitude,
west, 63° 35’, from the meridian of Greenwich.

AVES ISLAND. 155

Article second. Wallace shall pay to the government the price of
four dollars, standard, for each ton which he may extract, all the
expenses which may be incurred in the procurement of the guano, or
from any other cause, being for his own account. :

Article third. On account of what may accrue to the government in
virtue of the foregoing article, Wallace shall draw bills of exchange,
in its favor, on John Tucker, of Philadelphia, State of Pennsylvania,
for the sum of two hundred thousand dollars, payable ninety days
after sight.

Article fourth. The right, granted by article first, shall not be exera
cised so long as said bills will not have been fully satisfied, and should
they unfortunately be either protested or unsatisfied, the present con-
tract shall by that fact, and without any declaration to that effect be
forfeited, and the government of Venezuela shall be paid for such
damages as may have been suffered in consequence thereof.

Article fifth. The extracting of the forementioned guano having
duly commenced, in consequence of compliance with the foregoing
articles of contract, the government has the right of assigning such
agents as it may deem expedient, to supervise operations for the pur-
pose of ascertaining the number of tons, which the contractors may
have taken out, in virtue of article first.

Article sixth. The contractors are bound to render a monthly account
of the guano taken out to the agent, whom the government may
appoint; and, upon calculation of the amount, accruing to the treasury
of Venezuela, such amount shall be deducted from the two hundred
thousand dollars advanced in virtue of article third, and when said sum
will have been entirely redeemed, there shall be a monthly payment
into the general treasury of the proceeds of the number of tons which
may be taken out during the respective month; said payment to be
made in actual money, or by bills of exchange on the United States of
the North, at the option of the government.

Sec. 1. Upon failure of payment, for three months of the price of the
tons of guano taken out; it is understood that the contract shall be -
forfeited, and that, in any event, all arrearages shall be satisfied.

Article seventh. For ampler proof of the quantity of the guano
taken out, during each and every quarter, the contractors are bound
to exhibit to the government the manifests of shipments, which may
clearly establish the importations of guano into the ports of the United
States or of Europe.

Sec. 1. The government is authorized at all times to adopt all such
measures as are calculated to prevent the frauds which may be committed
in the excavation of said guano.

Article eighth. In order to guard the islands, with a view of prevent-
ing the fraudulent taking out of the guano, the contractors shall be
bound to keep up at least three armed vessels, of the larger size, at
their own expense and with out any remuneration on the part of
Venezuela.

Article nine. In case of a revolution in Venezuela, in which the
government may determine to reinforce the national navy, said vessels
which shall hoist the flag of Venezuela, shall, with their crews,
armaments, and other appliances, be at the disposal of the government,

156 AVES ISLAND.

to be employed by it, under the command of Venezuelan officers, for
the whole period, during which such revolution may last, and without
any indemnification of any kind.

Article ten. The vessels of the contractors in the event of actual
injuries or from stress of weather, shall not be held to the payment of
any harbor dues as required by law.

Article eleven. The doubts and controversies, which may arise as to
the meaning of all or of any of the articles of this contract, shall be
settled by arbitrating umpires and amicable adjusters, appointed, one
by each of the par ties, with a third one in case of a disagreement; the
decision to be made in this capital, with an express renunciation, on
the part of the contractors of the right of domicil, without any preju-
dice to any right whatsoever, which may be enforced against the con-
. tractors out of the territory.

‘Article twelve. To the fulfillment of this contract, all the contractors
pledge their persons and their property, present and future.

Article thirteen. If, at the expiration of six months, reckoning from —

the payment of the forementioned bills of exchange, no beginning will
have been made in the taking out of the guano; the present contract

shall be null.
SIMON PLANAS.
JOHN. D. F. WALLACE.

Mr. Sanford to the Presidené.

Brevoort Houst, New Yorx,
December 14, 1856.

Sir: You will pardon me for again calling the attention of the
Executive to the case of the claim of Philo 8S. Shelton, and others, of
Boston, against the Venezuelan government for an atrocious spolia-
tion committed in December, 1854. It is yet unsettled, and the
claimants are almost in despair of justice being obtained for them for
along time to come. The case has been fully made known to the
Executive, and the documents and proofs showing its justice, are all
on file in the State Department.

On the 18th of August last, the President approved an act entitled
‘Can act to authorize ‘protection to be given to citizens of the United
States who may discover deposits of guano.’’ Notice was given by
Mr. Shelton long before the passage of the act, of the discovery by his
agent for him, early i in 1854, of Bird Island, or Shelton’s Isle, in the
Caribbean sea, and the deposits of guano thereon, verified by affidavit
describing said Island, and the latitude and longitude thereof, and
that possession was taken in the name of the United States, and that
the same was not, at the time of the discovery thereof and of the
taking possession and occupation thereof by claimants, in the posses-
sion or occupation of any other government, or of the citizens of any
other government, according to the requirements of said act. All the

ae ee a a ae ee

AVES ISLAND. 157

papers and proofs have been for many months on file in the depart-
ment.

The second section of said act requires a certain bond with securities
to be given by claimants, and that the President shall designate the
amount of the penalty. The claimants are ready to comply with that
provision of the act in all things, if the case is one in which they
should so proceed, and if such course will in nowise weaken or com-
promit their claim against Venezuela for the outrages for which they
seek redress. :

They therefore ask, if the Hxecutive deems the case a proper one
for such proceeding under the law cited, that they may be advised of
the character, condition, and amount of the bond he will require, and
if advised thereof, they will obey such requirement immediately.

I have addressed this letter to you, conceiving that under the law
referred to, it is the proper course—the case being intrusted expressly
to the discretion of the Executive. |

Ihave the honor to be, with the highest respect, your obedient
servant,

H. 8. SANFORD,
For the claimants.
The PRESIDENT.

%

Mr. Sanford to Mr. Marcy.

Brevoort Housz, New Yor«,
; ; December 16, 1856.

Siz: On the 14th instant I addressed a letter to the President,
according to the’act of 18th of August last, respecting discoveries of
guano deposits, making application under said act in behalf of Philo
8. Shelton and his associates, as discoverers of Shelton’s Isle, for the
benefit of said act, provided it nowise compromits their claim against
Venezuela, now being prosecuted by the department.

It has been suggested to me that it is possible the reported claim of
the Dutch government made to Venezuela for that island, may create
an impediment to such application. Whether the ancient title of the »
Dutch government was well founded or not, they were not in posses-
sion of the island at the time of our discovery and occupation, and it
was in fact derelict and abandoned. It is not seen, therefore, how
their mere pretense of claim can be interposed to prevent our being
entitled to the benefit of the law. You will notice that act expressly
apples to discoveries made before the passage, as well as those made
subsequent ; the phraseology of the bill was so shaped at my express
instance to include this very case, and, in truth, the provisions of the
bill variant from that originally proposed, were suggested by myself,
and were adopted with a view to this case. The debates in the Senate
will show the express objects of the bill as I have stated them. The
whole matter is, however, in the discretion of the President, to whom,
under the law, I have, therefore, directly submitted it.

158 AVES ISLAND.

It is certainly no defense for the spoliation of our personal property
by Venezuela that the island belonged to the Dutch, or Danes, or any
other nation. It is no defense for the tortious eviction. It would not
be in the case of an individual trespass, either by the common law or
civil law, to say the property taken from us belonged to a third party.
It could not be given in evidence even to decrease damages against a
tort feasor that the property despoiled from an actual possession be-
longed to a third person—a stranger—who had not given authority
to wrest it from the possessors.

In the action of ejectment—a legal fiction—the existence of a legal
outstanding title in a third person may be set up as a defense, but
this only is a part of the formula of the action, part of the fiction cre-
ated for convenience, and is not founded on any principle of law
between nations; the admission of the doctrine that any one could
become an Anacharsis Cloutz, would lead to infinite disputes and
error.

T have the honor to be, very respectfully, your obedient servant,

H. 8. SANFORD.

Hon. Wiiiiam L. Marcy,

Secretary of State, &c.

x

Mr. Marcy to Mr. Sanford. + .

DEPARTMENT OF STATE,
Washington, December 23, 1856.

Str: On the 28th April last this department, at your solicitation,
addressed an intimation to Mr. Hames at Caraccas, requesting him to
obtain, if practicable, copies of certain official papers which, it was
believed, would be useful in the further prosecution of the Aves Island
claim against Venezuela. Herewith you will find a copy of Mr.
Kames’s dispatch of the 9th October (received on the 28th November)
in relation to that subject, and also a translation of the Wallace con-
tract, accompanying that dispatch.

At the date of his last communication to ois department, (1st No-
vember,) which has been received, Mr. Hames makes no acknowledg-
ment of a dispatch which was addressed to him on the 14th August,
in which he was instructed to ‘‘express the earnest wish of the gov-
ernment of the United States that the claim may be promptly adjusted,”’
and with which were transmitted copies of your communications of
the 9th and 10th May, 15th and 21st July, and of their respective ac-
companiments.

How far those accompaniments will supply the want which Mr.
Hames feels ‘‘of more proof of the value of the guano deposit from
which the claimants were ousted’’ it is for them rather than for this
department to determine. Captain Wheeler’s deposition, transmitted .
with your letter of the 9th May, estimates the quantity of first class
guano on the island when it was taken possession of in 1854 at more
than 100,000 tons. Mr. Hames, on the other hand, states that it is

AVES ISLAND. 159

believed in Venezuela ‘‘ that the guano taken from the Aves since the
Venezuelan occupation amounts to not more than from 800 to 1,200
tons, not all of this quantity being very saleable.’? And he further
states that it is confidently asserted that the Aves have been for some
time abandoned as valueless. This could hardly be the case if Captain
Wheeler’s estimate were an approximation to the truth. If, as the
attorney of the claimants, you are not satisfied that the issue should
rest upon Captain Wheeler’s deposition as to the quantity of first rate
guano, it would be advisable to present such further testimony upon
this point as may be accessible to you.

Is is to be regretted that this department is ignorant of the position
which the Venezuelan government assumed after Mr. Eames had re-
ceived my communication of the 14th August, already adverted to,
and had presented to that government the views therein expressed.
So long ago as the 15th March last our minister in Venezuela ex-
pressed the hope of soon being able to submit to this department a
proposition for the adjustment of the claim. No such proposition,
however, has yet been received from him. It is possible that the ac-
companiments to my dispatch of the 14th August may have facilitated
the adoption of some basis of settlement.

Wishing, as well for the sake of the claimants as for other obvious
reasons, to promote the early adjustment of this question, the depart-
ment would prefer to pursue such a course as would commend itself to
the cordial satisfaction of the parties interested. If they are content
to await the possible results of the last instructions to Mr. Hames upon
the subject, no further measures will be immediately undertaken. If,
however, they doubt the sufficiency of the proceedings instituted by
the department, and think that their interests would be promoted by
the presence at Caraccas of an agent of their own selection, it is not
doubted that such a representative might, concurrently with the min-
ister of the United States, do much to effect a more speedy adjustment
of their claim.

If this view of the case should be acceptable to them, the department
will extend the same facilities to such an agent as were afforded to the
private agent of the Philadelphia Guano Company, whose visit to
Caraccas under an introduction and with dispatches from this depart-
ment were not unproductive of its advantages to the party represented
by him.

Lam, &e.;
W. L. MARCY.

Henry 8. Sanrorp, Esq.,

Attorney of Piulo S. Shelton, Brevoort House, N. Y.

Mr. Sanford to Mr. Marcy.
Brevoort Housz, New York,

December 27, 1856.
. Sir: [ have received but this morning, on my return here from

Connecticut, your letter of the 23d instant, with its inclosures, to wit:

160 AVES ISLAND.

a dispatch from Mr. Eames, dated October 9, and a translation of
the Wallace contract.

Tt seems to me strange that neither in that dispatch nor in his last,
dated November 1, nor since, has he acknowledged the receipt of the
depositions of John McCabe, Richard Thornell, and James Wheeler,
nor of the report of Commander de Horsey, transmitted to him by the
department some months prior to October, and has made no acknowl-
edgment of the dispatch addressed to him on the 14th August, ex-
pressing the earnest wish of the government of the United States that
the claim of Mr. Shelton might be promptly adjusted. I trust a satis-
factory reason for this can be given.

On the 11th July last, I addressed a letter to the department in
relation to those proofs, in answer to a communication from the depart-
ment of the 8th of that month, saying ‘‘it is deemed inexpedient to
cumulate further testimony until it is known upon what points the
government of Venezuela fail to acknowledge the sufficiency of the
evidence already presented;”’ and the department also, in reply, on.
the 21st of July, to my letters of the 15th and 11th of the same month,
correcting a misapprehension by me of the citation above quoted, says,
“¢3¢ was thought that no practical good could be accomplished by pro-
viding additional evidence, until it was seen upon what points it was
necessary.’’ In consequence thereof no additional proof has been taken,
and we have been anxiously awaiting the expected dispatch from Mr,
Hames ‘‘containing the exposition of the views of Venezuela,’’ which,
I am informed, has not yet been received by the department. I
confess I am at a loss what course to pursue. I am not advised ~
authentically, or in any manner, upon what ground Venezuela just-
ifies or excuses her outrage upon and spoilation of our property.
IT am not told upon what ground she now claims title to the island, or
whether shé still insists the Dias expulsion of Mr. Shelton’s agent and
workmen was a lawful act or not. [am not advised of the ground she
assumes in relation to the paper called the Dias capitulation ; whether
she persists in giving it force, or abandons it, nor if any additional
proof is required of its being void on account of coercion, fraud, &c.,
and absence of authority to make it. On all this I am in the dark.
Our witnesses are seamen, masters and crews of different vessels, and,
. it may be presumed, scattered.

All we learn up to the 9th October is, that he is without proof, ex-
cept Captain Gibbs’s deposition, of the value of the guano. If it is
possible that the other proofs above mentioned were not received by
him from the department, I trust the department will ascertain the
fact and remedy the accident.

Reflection upon the whole subject, and especially as the department
declines giving any opinion upon the efficiency of the proof as to any
point in the case, has satisfied me that the proper course for the claim-
ant will be to procure such additional proofs, if the witnesses can be
obtained, and even testimony to rebut the reports and rumors Mr.
Hames says are current at Caraccas, and which hesays he was not war-
ranted by any facts in his possession from disputing, and the difficulty
in regard to which he felt so ‘‘seriously.”’ Jam more satisfied of the
correctness of this course, when I notice that the suggestions of the

AVES ISLAND. 16]

department to the claimant, made on the 25th April, 1856, in relation
to the proofs are approved of by Mr. Hames as ‘‘alike judicious and
important.’’

In the meantime, however, I trust that the department will, by such
dispatch as it may deem proper, stimulate Mr. Hames to some exertion
to procure some answer from Venezuela upon some points, and, by
distinct instructions, direct him to present all the proofs in his posses-
sion provided by us, and we will not put him to the trouble of argu-
ment or comment upon them. All that we wish from him is, to lay
before the Venezuelan government the documents sent by the depart-
ment, and we do not desire his doing any more than this, and insisting
upon an answer from the Venezuelan government with reasonable dil-
igence, with such reiterated presentation of our claim, and demand for
justice, and protest against any extension of the delay of two years
that has already ensued.

With reference to this dispatch, I purpose hereafter to transmit to
the department some observations that I think it calls for, for I assure
you it has given me pain and mortification. I consider the documents
that he has not procured, and upon which he comments at large to
show their immateriality instead of getting them, as of importance,
and I hope they will be procured. I allude to the British protest, and
to the resolutions of Venezuela of May 21, 1855, and July 22, 1855.
The Dias report is obviously of the highest consequence, and if a formal
‘demand of justice’? was made under the third section of the thirty-
fourth article of our treaty with Venezuela of 1836, (p. 432, 8 vol.
Stat. at Large,) being the ‘‘statement of the injuries and damages (we
sustained) verified by competent proofs,’’ it would place the affair in a
tangible shape, and Venezuela would then have to refuse or act justly.
She has already ‘‘unreasonably delayed,’’ and, I trust, in such demand
this unreasonable delay will be adverted to in unequivocal terms.

In regard to your suggestion in respect to the appointment of an
agent by Mr. Shelton, I would respectfully enquire whether it is prac-
ticable to dispatch such agent in a public vessel to Laguayra, to await
some ten days his return, and the character of the instructions he would
bear with him; because if not in their nature decisive, it is not antici-
pated that the expense and trouble incurred would be worth the result
effected.

We do not wish that any action by the department should be delayed
or pretermitted in anticipation of the appointment of such agent, for,
before decision can be made on that point, the claimants have to be
consulted with, after hearing from the department in answer to the
above inquiry.

I have received nothing in reference to the letter, of which I advised
the department on the 8th instant, I had addressed to the President.

I have the honor to be, with great respect, your most obedient
servant,

H. 8. SANFORD.

Hon. Wiiuram L. Marcy.

Ex. Doc. 10——1i11

162 AVES ISLAND.

Mr. Eames to Mr. Marcy.

No. 30.] Legation oF THE UNITED STATES,
Caraccas, January 7, 1857.

Sir: With reference to my No. 22 to the department under date of
9th October last, and to your Nos. 22, 27, and 30, which are the last
dispatches received by me from the department, relative to the ‘‘Aves’’
claim, I have the honor to transmit, inclosed, a note addressed by me,
under date of 20th ultimo, to the Minister of Foreign Relations of this
government, In which I have continued to urge strongly upon his.
attention the importance of a prompt and satisfactory adjustment of
that claim.

There are expressions in some of the papers presenting the case to
the department which would seem to indicate that the claimants, or
some of them, have not been entirely free from doubt as to the extent
in which that part of their claim which demands indemnification for’
the loss of their profits from the guano remaining on the ‘‘ Aves’’ at
the time of their eviction, could, as an estimate of future and contin-
gent profits, be properly sustained. But in view of all your instruc-
tions, and especially of your Nos. 22 and 27, I have felt myself fully
authorized to insist strongly upon this branch of the claim without
discussing the question whether it stands in its nature precisely upon
the same footing, in all respects, with the demand for indemnification
of the immediate and positive losses and expenses brought upon the
claimants by their summary expulsion and the sudden breaking up of —
their business. I have pressed this demand of indemnification for
the loss of probable profits with the more confidence and vigor, because,
as stated in my No. 10, under date of 25th April, 1855, I have from
the first maintained before this government, that the pretense of title
in Venezuela to the ‘‘Aves,’’ prior to her occupation of it, has not
sufficient foundation to justify discussion; and because, moreover, by a
whole series of consistent administrative acts, commencing at the time
of the Venezuelan occupation of the ‘‘Aves,’’ and continued by its
qualified insertion in the Pickerell contract, in the face of the denial
by the United States of her pretended prior title, and in the face of
the express exception and reservation of the ‘‘Aves,’’ and all the
rights and claims of the present claimants pertaining thereto, and of
the further announcement that all those rights and claims could be
fully sustained by the United States, Venezuela, on her own sole
responsibility, and in full view of it, has persisted in her settled
policy of holding the island by force and administering it for her own
advantage. The cogency of this view and of the facts of record which
sustain it, as heretofore presented by me, and now urged in the inclosed
note to Mr. Gutierrez, I do not perceive how this government can
confute or escape.

What is now greatly needed by this legation in the prosecution of
this claim for indemnification against Venezuela, is, as intimated in
my No. 22, exact specification and detail duly vouched and attested—
first, of all the actual and immediate losses and damages inflicted
upon the claimants by their sudden and forcible eviction from the

AVES ISLAND, - 163

‘‘ Aves;’’ and secondly, a statement duly vouched and as exact as pos-
sible, of the quantity of guanc (with its market value) taken from the
Aves since its occupation by Venezuela.

Without positive information on the subject, I presume that the
bulk of the guano so taken from the ‘‘ Aves,’’ and also from the other
guano islands under the Pickerell contract, has been carried to the
ports and entered or manifested at the custom-houses of the United
States. In that event the claimants may probably find greater facility
in making up the necessary statement of it than they would have been
able to command if Venezuela, instead of inserting the ‘‘ Aves’’ in
that contract, had seen fit to keep it open to all nations in pursuance
of her administrative resolution of the 28th July, 1855.

It is proper to add that since the receipt of your No. 27, inclosing
to me information as to the amount of the claim’ as estimated, I have
been constantly awaiting further details of statement and proof upon
that point. In my judgment, it is not safe nor expedient for the
claimants to rest their case in this respect upon the printed deposition
of Captain N. P. Gibbs, transmitted in your No. 30, though that
document will of course be useful in the negotiation.

With the highest respect, I have the honor to be, your obedient
servant,

CHARLES EAMES.
Hon. W. L. Marcy,
Secretary of State.

Nore.—In looking over my dispatches I perceive that in my No. 12,
transmitting the resolution of the 28th July, 1855, I give it as dated
of ‘‘26th July,’’ and the same error occurs again in my No. 22. The
true date of the resolution is 28th July, 1855, and I request that the
ao may be made.

LEGATION OF THE UNITED StaTEs,
Caraccas, December 20, 1856,

Sir: Referring to the notes addressed by this legation to the honor-
able Minister of Foreign Relations of Venezuela, under dates respect-
ively of September 24, 1855, and March 8, 1856, relative to the claim
of the American citizens who were expelled from the ‘‘ guano island of
Aves’”’ by the Venezuelan naval forces in December, 1854, and refer-
ring also to the several oral discussions of that subject which have
taken place since the case was first brought to the notice of the Vene-
zuelan government in April, 1855, the undersigned, minister resi-
dent of the United States, has now the honor to urge strongly upon

the attention of the honorable Minister of Foreign Relations, the im-

portance of a prompt and satisfactory adjustment of that claim.

The main facts of the case as first presented by the undersigned to
the government of Venezuela, and afterwards summed up in his two
notes above referred to, do not appear to be disputed.

164° AVES ISLAND.

Nor, in the judgment of the undersigned, is it probable that the
_ Venezuelan government will at this time see fit to insist upon any

title in Venezuela to the island in question prior to the occupation of
it by her naval forces in December, 1854; and if this be so, it is mani-
fest that, whatever possessory rights in the island Venezuela may have
since alleged or exercised, as resulting from her occupation of it, those
alleged rights must always be regarded, even by Venezuela herself,
and much more by the government of the United States, as arising
and existing, if at all, then only as subject to the paramount and pre-
vious right of the anterior American occupants of the island, to full
reparation and indemnification of all the loss, damage, and injury
brought upon them by the government of Venezuela in ejecting them
from that occupation, and taking possession herself of the island and —
proceeding to hold ‘and administer it for her own advantage and
profit. }

In this attitude stood the question of this claim when first presented,
and though its reception then by the government of Venezuela was, ©
in judgment of the undersigned, as he then stated, by no means in
conformity with the rights of the claimants, and the just expectations
of the government of the United States in their behalf, still the case
might probably, at that time, have presented no insuperable obstacles
to a prompt adjustment but for the appearance among the documents
pertaining to it and in the possession of the Venezuelan government of |
@ paper purporting to be the original of an ‘“‘agreement’’ entered into
and signed at the ‘‘Aves’’ Island on the 13th December, 1854, by
Commander Dias, of the Venezuelan navy, of the first part, and the
agents of the American occupants of the island of the second part,
by which the possession of the island would seem to be ceded to the
Venezuelan authorities by those agents upon certain terms and con-
siderations therein set forth. This paper the undersigned, whegprop-
erly assured of its authenticity, deemed fit, as new matter in the case,
to be referred to his government in order that explanations of it by the
claimants might be received and considered. Those explanations,
showing that the alleged ‘‘agreement’’ was entered into and signed
by the agents of the claimants under duress and upon compulsion,
were considered by the government of the United States as sufficient
wholly to invalidate and void the instrument.

The urgent aspect of the claim resulting from these facts was at
once presented to the honorable Minister of Foreign Relations by the
undersigned, in personal interviews, and was also shortly after pressed
upon his immediate consideration in the note of the 8th of March last
already referred to. ee

The papers which accompany this note, prove also the additional
fact that the alleged ‘‘ agreement’? with Commander Dias, being
written in a language not understood by the agents of the claimants,
and so requiring interpretation, was signed by them under an entire
misapprehension of its contents. ;

The case being thus cleared of the embarrassment occasioned by this
alleged ‘‘agreement,’’ and the forcible expulsion of the claimants
from the island by Venezuelan forces, and its subsequent occupation
by Venezuela not being disputed, the undersigned is unable to perceive

AVES ISLAND. Sein. Saare

any ground upon which the right of these claimants to indemnification
can be denied or questioned. Any such denial would, in the judg-
ment of the undersigned, impose inevitably upon Venezuela the ne-
cessity of maintaining the monstrous proposition that these claimants,
having first discovered guano upon that derelict, uninhabited, and un-
inhabitable island, which had never been embraced within the jurisdic-
tion nor reduced to the possession of any power, had, in that state of
the island, no right to land upon it and work upon it; that in fact,
from the day when they went there, in June, 1854, up to the day when
they were driven away, in December of the same year, they were from
the first and all the time, law-breakers and trespassers, engaged in
active, open, and persistent violation of the territorial sovereignty of
Venezuela. To suppose that the intelligent government of Venezuela
could ever undertake to maintain such a proposition, would not, in the
judgment of the undersigned, be respectful. But if this proposition
be not maintained in its full extent, how can this claim for indemnifi-
cation be resisted? If the claimants were, as against Venezuela, law-
fully in possession of the island when Venezuela found them, then
surely they may rightfully claim full reparation for being driven away
by her public force.

It would seem, therefore, that in this case little remains to be done
but to fix, justly, the amount of indemnification to which the claim-
ants are entitled. This amount should embrace, in the judgment of
the undersigned, first, a fair and just remuneration for all the actual
and immediate injury inflicted upon the claimants in the form of prop-
erty of various kinds, seized or sacrificed, or expenses or liabilities
under contracts, or damages under charter-parties, necessarily result-
ing from the sudden breaking up of their business, and their precipi-
tate and compulsory departure from the island. These items of the
claim are in tlieir nature positive and susceptible of exact statement
and proof, and their adjustment will probably not be difficult. Secondly,
these claimants allege that they are also entitled to a fair and reasonable
indemnification for the loss of the profits which would have accrued to
them from the prosecution of their business in the guano on the island of
‘‘Aves’’ if they had not been wrongfully disturbed and expelled by the
Venezuelan forces. The claimants estimate this item of their claim at a
large amount, and they have laid before their government testimony
upon which they appear to rely as confirming, not only the fairness, but
the moderation of their estimate. Without discussing, at this time, the
question whether this second branch of the claim which seeks indem-
nification for the loss of estimated profits should be adjudged to stand
in its nature and in its whole extent precisely upon the same footing
in all respects with the first branch of the claim already referred to,
the undersigned is yet clearly of opinion that the facts of the case
as they appear, unquestioned and of record, strongly and urgently
command this branch of the ciaim to the justice of the Venezuelan
- government, and require for it a favorable consideration and a fair
adjustment.

At the very moment, in December, 1854, when Venezuela was moving
forwards to the expulsion of these claimants from the ‘‘ Aves’’ island,
she was engaged in selling the guano thereon for the benefit of her

166 AVES ISLAND.

treasury, and that sale was consummated on the 21st of that month in
the contract concluded with Mr. Wallace under that date. All this
was done without any knowledge of it, either by the undersigned, then
in the United States, or by his government. Subsequently, in May,
1855, the government of Venezuela, upon reasons deemed satisfactory
to itself, by executive resolution, declared the contract of Mr. Wallace
null and void, but still the armed Venezuelan occupation of the ‘‘Aves’’
continued, in full view of the presentation by the undersigned, in April
preceding, of the present claim, with notice that the title of Venezuela
to that island at the time of her occupation of it was in no way recog-
nized or admitted by the government of the United States. Soon
after. while the case was in this state, and while active negoti-
ations on the subject by the undersigned were suspended solely
by the reference of the Dias ‘‘agreement’’ to the government
of the United States, the government of Venezuela, on the 28th
of July, 1855, by executive resolution reciting the annulment of

the Wallace contract, and specifically mentioning the ‘‘Aves,”’ —
declared its purpose to open that island, and all the other guano
islands belonging to the republic, to the access, working, and trade
of the citizens and subjects of all nations indiscriminately, upon
such equal terms and conditions as should be promptly thereafter pre-
scribed by the executive power. This resolution was accompanied by
another of nearly even date, July 23,.1855, in which the Venezuelan
government declared its purpose to prevent by force the working of any
of the above named guano islands by any persons without its permis-
sion, and to execute the rigor of its laws upon any trespassers who
might be found so offending. About one month afterwards, at the
beginning of September, while the Dias ‘‘agreement’’ was yet under
consideration at Washington, commenced the effort of the assignees of
the Wallace contract, through their agent Mr. Pickrell, to save their
rights vested under that instrument; and that effort, with express
exception and reservation of the ‘‘ Aves,’’ and all the claims and rights
of the present claimants therein, it became the duty of the undersigned
to aid, and such aid was given, subject always to that express exception
and reservation, in their full extent, repeatedly and emphatically
insisted on from the first, and placed on record before the Venezuelan
government, both during the pendency of the Pickrell negotiations and
afterwards. At the close of that negotiation, it notwithstanding ap-
peared that Venezuela, persisting in her settled policy of asserting and
maintaining jurisdiction over the ‘‘Aves,’’ had determined, in full
view of all her responsibility in the premises, to specify that island in
the contract of the 29th of September with Mr. Pickrell. This policy
in regard to the ‘‘ Aves,’’ first adopted by Venezuela in her negotia-
tion with Mr. Wallace while that island was still in the possession of
the present claimants, carried into effect by their forcible expulsion,
and subsequently, in the face of their rights and claims, and the inter-
position of the government of the United States in their behalf, fully
adhered to in the continuance of her armed occupation, and solemnly
reaffirmed in her administrative resolutions of 23d and 28th July
before referred to, appears, in the insertion of the ‘‘ Aves’’ in the con-
tract with Mr. Pickrell, to have been only so far modified in view of
the decided position adverse to that insertion taken by the undersigned

AVES ISLAND. 167

in the name of the government of the United States in maintenance of
all the rights and claims of the present claimants, as to withdraw the
“¢ Aves’’ from the primary and principal place which it held in the
Wallace contract, and to give to its specification in the Pickrell con-
tract an incidental and qualified form, exempting the Venezuelan
government from liability to Mr. Pickrell and those whom he repre-
sented, in case of the failure of the Venezuelan possession and alleged
title. But this modification could, of course, in no way diminish the
profits resulting to Venezuela by the working of the island under her
authority.

It thus appears, that in defeat of the claims of the claimants, and in
disregard of the prompt and continued interposition of the government
of the United States in their behalf, Venezuela, by a whole series of
acts, commencing in December, 1854, and constituting since a system-
atic policy, has forcibly occupied, and in various ways administered,
according to her own judgment, upon her own sole responsibility and for
her own advantage, the guano island of ‘‘ Aves;’’ and the inference, in
the judgment of the undersigned, is obvious, that unless it be shown
affirmatively and clearly that Venezuela had a title to this guano when
she took it into her own hands, in December, 1854, better than the
title of these claimants, who had discovered it, taken formal possession
of it, and were lawfully and peaceably putting it to use when she found
them and expelled them, then, under the law of nations and upon
principles of justice, Venezuela is responsible to them, and to their gov-
ernment in their behalf, in a fair and reasonable indemnification for
the loss of their profits from the guano, the rightful possession of
which she thus wrested from them. The equitable estimate and com-
putation of those probable profits will properly form the subject of
future consideration.

Deeply impressed with the importance of a satisfactory adjustment
of this claim with the least possible delay, and earnestly urging this
view of it upon the government of Venezuela through the honorable
Minister of Foreign Relations, the undersigned is desirous to proceed
at once in the negotiation, and as a basis of such arrangement he will
undertake to entertain and transmit to his government for its con-
sideration a proposition by which the government of Venzuela shall
agree:

First. Promptly to indemnify these claimants for all the actual
positive losses resulting to them from their expulsion from the Aves
in December, 1854, and forming the first branch of their claim as
already alluded to.

Secondly. To indemnity these claimants in a reasonable amount as
compensation for their loss of probable profits in the guano which may
have been taken from the Aves under Venezuelan authority from the
day of its occupation by her forces up to the day when the adjustment
of this claim may be concluded between the two governments.

Thirdly. To adjust the question of the rightful interest of these
claimants in the guano remaining upon the island at the time of such
settlement of their claim, either by the relinquishment of such guano
to them, or in other manner satisfactory to the two governments.

me

168 AVES ISLAND.

The undersigned avails himself of this opportunity to renew to the
Hon. Sefior Gutierrez the assurance of his very distinguished con-
sideration.

CHARLES EAMES.

Hon. Jacinto GUTIERREZ,

Minister of Foreign Relations.

List of papers accompanying this note.

Destin of Captain J oshua T. Safford as to Dias’s seb
&c., marked A.

Deposition of Captain P. Wheeler, marked B.

Second deposition by the same, marked C.

Deposition of George McGeorge, marked D.

Deposition of Charles H. Lang, marked EH.

Certificate of William P. Gibbs, marked F.

Protest of George W. Nichels, master, and Henry C. Dearborn and
Patrick Scallam, of ship James N. Cooper, marked G.

Mr. Marcy to Mr. Sanford.

DEPARTMENT OF STATE,
Washington, January 9, 1857.
Sir: I transmit-a packet addressed to Mr. Eames, the United States.
minister at Caraccas. It contains an instruction to him upon the
subject of the claim of Mr. Philo 8. Shelton against the government
of Venezuela, in behalf of which you have addressed this department
as agent. As it is understood that you prefer to carry the packet to
Caraccas rather than it should be sent by mail, a courier’s passport for
that city is also herewith inclosed. This department is informed by
the Secretary of the Navy that the sloop-of-war Saratoga will probably
be at St. Thomas about the first of next month.
iamsrcir. drcie
W. Lh. MAG
Henry 8. Sanrorp, Esq., New, York.

Mr. Sanford to Mr. Marcy.

Brevoort House,
New York, January 10, 1857.
. Sm: I had the honor this morning to receive per mail the followin
papers :
1. A sealed eee to Mr. Eames, United States minister at
Caraccas.

AVES ISLAND. 169

2. A letter of introduction of myself to Mr. Hames, (marked ‘‘pri-
vate,’’) dated January 6.

3. A courier’s passport for myself.

4, A letter from the department to myself inclosing said papers,
dated January 9. .

5. A letter to me from the honorable the Secretary of the Navy,
dated the 9th, advising me simply that Commander Tilton had in-
formed the department that the Saratoga would be at St. Thomas
about the Ist of February.

I regret that the last vessel for Laguayra left here on the 8th instant,
and none is expected to sail for several days. J have ascertained that
sailing from here to Havana or St. Thomas would not expedite me to
Laguayra for some days, as the packet from St. Thomas to Laguayra
is monthly and leaves St. Thomas on the arrival of the steamer, which
leaves Havana on the 9th of every month.

IT am not advised by any of said letters when the Saratoga will be
in Havana, nor if she will take me from that port, nor if I was at St.
Thomas on the 1st of February if she would carry me to Laguayra
from that port. Under these circumstances, for the sake of dispatch,
and presuming that Mr. Hames would receive the sealed letter addressed
to himself at an earlier period if dispatched, by the department than if
carried by me, I herewith reénclose it, and beg of the department to
send it by the earliest opportunity. I presume the Saratoga may
afford such means, as the Secretary of the Navy assured me she would
touch at Laguayra.

In the meantime, and before I sail, I purpose visiting Washington
again in respect to this claim; when, if deemed proper, I may request
a duplicate of such dispatch to be sent by me with some additional
papers which I may then furnish the: department for transmission to
Mr. Hames to enable me to aid the department and Mr. Hames effect-
ually in the prosecution of this just claim.

I have the honor to be, with great respect, your obedient servant,

H. 8S. SANFORD.

2

Hon. Wriittam L. Marcy,
Secretary of State.

P.S. I notice in the papers a call by the Hon. Mr. Bell, in the
Senate, for the correspondence relating to Aves Island. Lest I might
be misunderstood, I desire to state that I have had no participation in
this any more than the other call, of which I was ignorant till I saw it
in the papers.

H. 8. 8.

Mr. Sanford to Mr. Marcy.

Wasurneton, January 22, 1857.

Sie: I have the honor to inclose herewith a translation of a report
of the Secretary of Finance of Venezuela to the Congress of that State,

170 ‘ AVES ISLAND.

dated Caraccas, January 20, 1856, which I desire to have filed with
the papers relating to the Shelton’s Isle case, to which J invite your
particular attention, as containing an authentic account of the codpe-
ration of the minister of the United States at Caraccas in obtaining
the contract to the Philadelphia Guano Company, by which Shelton’s
Isle was ceded to it.

I have the honor to be, with great respect, your obedient servant,

H. S. SANFORD.
Hon. Witit1am L. Marcy,
Secretary of State.

Extract, translated from the report of the Secretary of Finances to the
Congress of Venezuela, Caraccas, January 20, 1856.

The bills of exchange, in favor of the general treasury, drawn on
John Tucker by Mr. J. D. Wallace, the grantee of a privilege to take
guano, fora period of fifteen years, from Aves Island, of the wind-
ward, and other islands ,of the republic, containing guano, having
been protested for non-acceptance, the executive power, in furtherance
of the opinion of the council, on the 22d of May ultimo, declared the
annulment of the contract of December 21, 1854, which, at the pre-
ceding sessions, had been transmitted, in its original form, to the
honorable the chamber of representatives. Having it in contempla-* ~
tion to bring the management of that article, with a view to the
greatest advantage, under the control and the agency of fit officers,
until the legislature should decide in the matter, the executive power,
among other measures, adopted that of instituting an inquiry abroad,
through the diplomatic agents of the nation, and others, specially
authorized to that effect, to secure the information necessary to en-
lighten him fully in the premises, such as the price of our guano and
of that of Peru and of Mexico in the United States; the kind most in
demand in their markets; the chemical action likely to produce the
article; the means to be used to obtain, through a simple scientific
process, a knowledge of the best quality of that produce, in conse-
quence of the greater or less quantity of certain substances, resulting
from chemical decomposition. The executive power also adopted a
measure having, for its object, the keeping up of a naval station of
two war steamers cruising about the islands to prevent the fraudulent
exportation of the article, in quest of which various vessels swarmed |
in our seas; the sending of a few cargoes of the article in order to
introduce it into the principal markets of Europe and America; the
station on Aves and Monges Islands of officers to watch over the guano
and see to its exportation, to which end minute instructions were issued
to them; the denouncing of seizure and other legal penalties for all
vessels apprehended for fraudulent taking of the guano, or which may
be at the islands taking such article without the due authority ; the
ascertainment in which of said islands the guano is found, and what
the quantity and quality are. In consequence of the last requirement.

AVES ISLAND. wre

enano was discovered in Monges Island, on the islet of Pié, belonging
to the cluster of Los Hermanos. Some specimens received from the
localities have been submitted to analysis in this capital. It is also
known that there are deposits of the substance in the north and lee-
ward islands of Aves, in Orchila, in the Tortugas, and the Frailes.
This knowledge is derived from the statements made by the various
agents of the national navy commissioned minutely to explore the
archipelago, and to return surveys with all necessary details relative
to all that may have come directly under their personal observation,
or which may have been obtained through information supplied by the
navigators who visit the archipelago. As to the character of the
article, the comments of the press in different portions of the United
States, as our consular agents inform us, and the various tests to
which it has been subjected by chemists, show that the Venezuelan
guano is of variant qualities, though the superior kind is found in a
favorable classification.

A circumstance, however, which need not excite surprise, inter-
vened to counteract the intentions of the government, even to the
extent of making them illusory, just at the time when the data which
the former administration could not have had on hand were duly
coming in, and when there was an expectation that the information
would be supplied in so full a measure as to justify a complete organ-
ization and development of the undertaking. So far, indeed, had the
matter proceeded, that wonder was expressed that the contractor him-
self should have afforded the republic the opportunity for a reversion
to it of the free and immediate management of that product, and for a
supply, at the same time, for the somewhat reduced condition of the
treasury.

The agent of an association entitled ‘‘ The Philadelphia Guano
Company,’’ which had assumed the rights acquired by Wallace in
virtue of the contract made with the preceding administration, reached
Caraccas, and, maintaining the existence of the contract on the ground
that the present administration had not the authority to issue the dec-
laration of the 22d of May, filed in the department under my charge
a protest for damages, which were set at $500,000, besides the further
sum of $50,000, which were claimed for expenses already incurred by
the company. The position in which this claim placed the govern-
ment was, beyond doubt, painful and embarrassing, for at the very
time that it was preferred, two mercantile firms of this city were
urgently pressing their claim for $200,000, with 15 per cent., for cost
of protests and damages on the bills drawn by Wallace, the contractor,
on the 21st of December, 1854, which they had taken from the gov-
ernment for value received, but which were dishonored for want of
payment. It is proper here to remark, that in view of such a contin-
gency, and for securing the amount outlaid by them, the purchasers,
among other privileges, had the right of being absolutely substituted

‘for Wallace, in the execution of the contract, by articles drawn up by
them and the preceding administration, on the 17th of January of
last year. |

Still, however complicated the guano question and its concomitants
turned out to be; however trying it might have been for the govern-

172 AVES ISLAND.

ment, in view of the straitened condition of its treasury, immediately
to devise the means, in money, to honor its indorsement on the pro-
tested bills, and even, should it so be urged, to indemnify Wallace’s
successors ; nothing of this could have ultimately induced the govern-
ment, after nearly a whole month expended in daily conferences, to
relax from its firm purpose of maintaining the rescision of the contract,
had it not been for the ardent and hourly official advocacy of the United
States minister resident in Caraccas. By him the attorney in fact of
the company was presented to the government, and with him he was
present at the daily conferences; and as the result of those confer-
ences, after so long and uninterrupted a discussion, was adverse to
him, he asked and obtained at the hands of the head of the nation a

special audience in reference to the matter, a record of which is now

to be found on the files of the department of foreign affairs.
The question then assumed a broad and serious aspect, through
which was descried a disagreeable contest, as well as a painful issue,

between the government of Venezuela and that of the United States,

where public opinion and the daily press, by their energetic demon-
strations, gave additional impulse to the claim, as we learned from
the official information, from time to time, received from the diplo-
matic agent of Venezuela near the government of Washington.
Under such circumstances, aware that the object which the company
had in view, was the recovery of the rights which it had acquired
under the contract, the nullity of which had been declared by the ex-
ecutive power—that power appreciating the importance pressing on
Venezuela, not to disturb her relations with a friendly nation, and
looking to the difficulties of every kind to make available the guano
industry, by a system of administration carried on over so many and
isolated localities, almost all of them deserted and unsupplied with
potable water ; many of them wanting even a landing place, and for-
bidding, unless at‘great risk, the residence of the officers ashore, which
circumstance necessitated the employment of a fleet to watch the
coasts, at the time when there was not even one vessel for that service
about Aves Island, and in consequence of which fact, authority had to
be obtained for the purchase of such vessel; viewing‘ all these things,
said executive power authorized the secretaries of the departments of
finance, of the interior, of justice, and of foreign relations {to agree
upon a previous recognition of the declaration of the 22d of May, with
the representative of said company, which, on the preceding 30th of
April, had obtained an act of incorporation from the legislature of
Pennsylvania, in conformity with the law of that State, to grant the

_ privilege of said island for a period of fifteen years; and it was ac-

cordingly granted by contract, signed on the 29th of September ulti-
mo, for the excavation, sale, and exportation of guano, on condition
of payment into the treasury of five dollars (single) for each and every
ton, instead of four dollars, the consideration under the former con-
tract ; all expense incident thereto to be at the cost and on account of
the contractors. It was also conditioned that they should sell the
guano on the islands at an uniform and like price, to all individuals
or nations whatsoever ; that said islands should be guarded by officers
of the republic, and by such naval or land force as it may deem expe-

——— eee

a

AVES ISLAND. 173

dient to provide; that said agents or officers should see to the due
compliance with our civil and political laws ; that they should inter-
vene in the excavation and the importation, the latter to be verified
and vouched for by the bills of lading; that the contractors should
pay a fine of ten dollars for each ton taken out without due formality,
without prejudice to the compliance with the laws, and with govern-
mental regulations, enacted in relation to abuses against the national
property and revenues; that all doubts and differences as to the con-
struction of the contract should be decided by the supreme court of
justice of Venezuela ; and lastly, that the government should work out
and explore, on account of the nation, a quantity of guano sufficient
to load a certain number of vessels, which was subsequently, by agree-
ment, fixed at twelve in the month of October last.

Such are the stipulations of the agreement of the 29th of September
last, and though the executive power is conscious that they are much
more advantageous than were those previously contracted for, still I
cannot refrain from submitting to Congress that, had it not been for
the mass of reasons and special circumstances which operated in favor
of the agent of the company, even the recourse of diplomatic means
in his purpose of asserting the validity of the agreement which had
been rescinded, or failing in this, of claiming enormous indemnities,
his excellency the President of the republic would have dwelt longer
on the consideration and settlement of the question.

Mr. Sanford to Mr. Marcy.

Brevoort House, New York,
January 26, 1857.

Siz: The vessel in which [ sail for St. Thomas has been delayed by
the ice, and will not leave till to-morrow. Reflection upon the posi-
tion of Mr. Shelton’s case, as it is disclosed to me by the official corre-
spondence published by the Senate and by the other information I
received whilst at Washington last week, has induced me to prepare
and submit an additional statement or memorandum of the damages
claimed by Messrs. Shelton and Sampson & Tappan, and which is now
inclosed to be filed in the department. You will notice, first, that
the damages now claimed are augmented since the statement filed
January 29, 1855; and second, that we have now presented a state-
ment of what we claim based upon the contingency that Venezuela
may offer to restore the isle, and that the United States may possibly
deem it advisable to accept such restoration.

I deem it proper that an explanation should be made in this com-
munication on both these points: first, as to the augmentation of the
claim ; and secondly, as to the claim now made, if the isle be restored.

1. In reference to the additional quantity of 12,500 tons of guano
at $12 50 per ton, now claimed, we have to say that when we made our
former statement we anticipated the speedy settlement of our just claim
by Venezuela, and were not disposed to be exacting or exorbitant. We

174 AVES ISLAND.

supposed that the conduct of Dias might possibly have been through
his error or mistake. We then supposed that the guano, then charged,
was not more than one fourth of what was on that part of the isle
staked out between Captain Gibbs and Wheeler in July, 1854, to our
party on the isle, and less than half of the first class guano on that
part, not including the ‘‘ good merchantable guano’’ and that of intfe-
rior quality, but which would bear freight to the United States. The
fact of the guano, on our part, exceeding 100,000 tons is proved by
five witnesses and by Commander De Horsey, R. N., in his report to
his government. sa

We made it as we did because, although we believed our right to
the whole was just and valid, we were desirous to avoid all appearance
of being hard or unreasonable, and to prevent any imputation being
made of exaggeration. We had not been at the isle ourselves, and.
did not know what we could certainly prove on that point by reputable
witnesses,

We deemed it advisable also, in order to procure speedy payment of ©
any indemnity from Venezuela, believing that satisfaction might be
obtained more readily for such part of our rightful dues than for the
whole; and besides, it was of pressing importance then to have the
matter settled forthwith to avert other embarrassments and injuries,
the results of said outrage, which, if the claims had been settled in
the winter of 1854-55, or spring of 1855, we should not have been
compelled to suffer. We claimed then, and claim now, only in refe-"
rence to the moiety of the isle our Captain Gibbs took exclusive occu-
pation of, on his division with Captain Wheeler, in July, 1854. We |
forbore to claim for the other part, because it was claimed by Lang &
Delano under that division, and although we did not, and do not now,
admit their claim is well founded, as against us, our position in Jan-
uary, 1855, induced us to forego at that time opposition to it, though,
at the proper time, we purpose to have our respective rights as to said
isle and guano decided upon by a competent tribunal. We do not
imagine that there will be any question about our rights to add to our
claim in respect of this additional charge for guano. Our former
statement is no legal ‘‘estoppel.”’ Its not being made in January,
1855, may be regarded as evidence against the propriety of such addi-
tional claim. Beitso. In the face of the incontestable proof of the
justice of the addition, and that it is still less than one half of the
guano we might charge for, sach argument may pass for what it is
worth in such regard. Besides, the terms of our past statement show
that we then supposed the quantity of guano on our part of the isle
was 50,000, worth $12 50 per ton, and in presenting our charge for
25,000 only, we stated it as the ‘‘minimum”’ quantity; which word
you will find in the statement.

In reference to our former statement of January 29, 1855, you will
find, upon recurring to the deposition of Captain Gibbs, that he first
arrived in the United States, after the eviction, at Holmes’ Hole on
that very day.

We saw him a few moments only, and made and forwarded that
hasty and loose general estimate on the spur of the occasion. We
repeat that we were then willing to take the amount there stated, if

AVES ISLAND. 175

the ease had been settled promptly. But we submit, that in a court
of strict law even, a party would not be limited to a general hasty
estimate (the brief statements of which show it was made without
specific data) thus prepared, and which is clearly shown by incontest-
able proof subsequently obtained, was below what it ought to have

' been. It would be amended by leave of a court, if it had been filed

as a bill of particulars, upon suggestion of the facts, on the ground
of mistake and error, and the having subsequently obtained correct
information, especially if the party was in a position (as Mr. Shelton
was in this case) in which he might be supposed to be ignorant of the
facts at the time. As to this additional charge, it is shown by the
testimony, that added to the 25,000 tons before charged, and both
together make out little more than one half only of the quantity then
actually on that part of the isle we occupied of ‘‘first class’? guano;
(worth more than our claim per ton;) and such addition of this addi-
tional charge claimed by us, making the 37,500 tons in all, gives but
a little more than a third of all the guano on such part. When Veue-
zuela offers to pay the first charge of $312,500, she may properly
discuss the additional charge now made.

And so as to the ‘‘false freights and damages, &c.,’’ which we now
charge at $36,320, instead of $20,000 formerly charged. We stated
the charge generally in the statement of January 29, 1855; we had
not sufficient data to do otherwise. Any one having any knowledge
of such business can see our statement was mere guess-work. Now, we
give the items. They are proved to be correct and just. The law does
not require impossibilities of a party. In January, 1855, we did not
give specifications; in fact, some of these damages had not then fully
eventuated, though they did occur, and as the result of the expulsion.
The items show this. Our first estimate we are willing, under these
circumstances, should pass for what it is worth in weakening our claim
to the said damages now set forth and proved. We are content on
such score. When the $20,000 first stated is paid, it will be time
enough to object to the overplus. That sum would have been wortk
more to us in January, 1855, than the $36,320 can be. If the $20,000
had then been paid (and the other accompanying charges equally as
just) it would have released us from embarrassment, saved the necessity
of grievous sacrifices, and protected the commercial credit and pre-
vented the insolvency and pecuniary ruin of Mr. Shelton.

And as to the augmentation of the charge of $8,500 to $14,600, or
what is the same thing, the additional charge of $6,100 for losses on
wharves, houses, &c., it is clearly sustained by proof of items, by
bills, accounts, &c., verified by witnesses, in addition to the indis-
putable testimony in the depositions filed. If this was a case between
individuals, every honest man, after he had examined the papers,
would be ashamed to dispute it. The particulars need not have been
adduced. Proof of what such wharves, &¢., would cost there, how

‘much it would cost to keep thirty-five or forty men there seven months,

and how much the implements ought to have cost, ought to be all-suffi-
cient. Ina court of lawit would be. We have furnished such proof
in the depositions, and then in addition, and to corroborate them, we
furnish proof of items of actual expenditure. They amount to $6,100

176 AVES ISLAND.

more than we charged in January, 1855. If Venezuela insists that we
are estopped by our first statement, she is at full liberty to do.so; and if
it should ever be decided that under all the circumstances we have
adverted to we are precluded from claiming this $6,100, we shall ac-
quiesce; but still we desire the present statement presented with the
proof of its justice, as in such case we presume Venezuela would not
demur to paying the $8,500 and interest immediately.

All the other damages charged in the inclosed statement it will be
seen upon examinatian of them are direct effects and consequences of
the trespass by Venezuela, and of her most unreasonable and unjust
delay in respect to the fair and moderate claim preferred in January,
1855, amounting to a little more than half of what we now prove we
could properly have claimed, and therefore now demand. If she had
settled this case within a reasonable time after it was first presented to ,
her, nearly two years since, or even given any answer that would have
afforded us some reasonable prospect or hope of its early adjustment,
none of the items composing the $97,490 now charged would probably -
have been preferred, and most of them would then not have had founda-
tion. That they have arisen since January, 1855, justifies their being
added to the former statement.

We do not suppose that you will have any objection to this memo-
randum or statement being presented, especially under the circum-
stances mentioned, and to its being transmitted to Mr. Eames, to be
submitted to the Venezuelan government as our present claim. If
you have any doubt as to the propriety of the augmentation of the
amount formerly stated, or if you should deem it inexpedient to for-
ward the inclosed to Mr. Eames as the basis of his action, we presume
all difficulty on your mind will be removed by the unequivocal declara-
tion we now make, and give full authority for him to repeat, in the
most binding form, that if Venezuela will yet forthwith adjust and
give reasonable assurances of payment in the aggregate of the claim
jirst presented, $341,000, with her own legal rate of interest thereon,
we will still give her a full discharge for it, and we will personally
abandon all claim to the isle; but this statement of our just dues ought
to be presented to preclude the most hypercritical from objecting to the
other. The present statement is founded on the proofs adduced, and
if it serves no other purpose it will show that Venezuela should not
whisper a word in derogation of the first.

2. As to the restoration of the isle to us. We make the separate
and distinct statement of our claim in such case, because we notice in
your dispatches, published in Sen. Doc. No. 25, 3d Sess. 34th Cong.,
(present session,) you refer to such atonement; and also that Mr.
Hames in his dispatch No. 22, of October 10, 1856, (not published,)
but of which you furnished me a copy, alludes to the reported ‘‘ aban-
donment’’ of the isle by ‘‘ the Philadelphia Guano Company’’ as
‘‘valueless,’? &c. We cannot believe that you will agree that such
restoration, in part satisfaction to us, is at the option of Venezuela.
We were willing to take it back in January, 1855, in part satistac-
tion, and even for some months afterwards, before our property there
had been eloigned, wasted, delapidated, and become worthless, and
before any guano had been abstracted therefrom, and especially before

J
i

AVES ISLAND. 177

Aves Island guano had, by the bad management and ill judgment of
Venezuela and her transferrees, depreciated in reputation, demand,
and price, and the market ruined by them, and which has rendered
the isle now of comparatively little value to them or to others. We
hold that we have the option or choice to accept a restoration of the
isle or not, in part satisfaction. At any rate, our government has

such option. Between individuals it would be preposterous that a.
trespasser when arraigned for his tortious acts, after he had kept the
property two years, and used it, taken away part of its only valuable
product, and rendered it well nigh worthless, (and even if it had be-
come valueless, without his expressly causing it,) should be allowed
to say ‘‘hereit is, take it back and be satisfied.”’ We are not now in
the guano trade, and are not disposed to go in it again. Besides,
what are we to do with the Philadelphia company? ‘Two years since
we asked to be restored ; eighteen months—nay, a year ago we were
willing to take back the isle in part satisfaction. In May and June,
1855, we begged of the government to send a naval force to give us
possession, or to allow us to do the business ourselves. We could
have used it then profitably. Now to ask us to take it back as part .
satisfaction to any considerable amount, would be a bitter mockery.
And, besides, the President hath not granted our application under
the act of last session, respecting the isle, and though our claim for
damages against Venezula may be good, we may have trouble hereaf-
ter, which we should not have had in 1854 as to the isle. I trust that
you will suggest to Mr. Hames that the restoration of the isle in part
satisfaction of our damages, on terms essentially different from what
we now state, will not be just, and that the Venezuelan government be
so informed.

May I ask that the inclosed be filed, and a copy I have made and
sent in another envelope, (with also a copy of this,) be sent to Mr.
Eames, and a second copy certified to be a true copy, and sent to me.
T would ask that the latter be sent to the Brevoort House, New York,
addressed to me, where I have left instructions how to forward it by
the first conveyance some five or six days hence to Laguayra. Any
other communication to me respecting this case can be addressed in
the same way during my absence.

I have the honor to be, sir, yours, very respectfully,

H.'S. SANFORD,
Attorney for claimants.
Hon. Wm. L. Marey,
Secretary of State.

P. S.—Mr. Philo 8. Shelton expects in a few days to sail for the
West Indies ; he will address the department before he sails, and after
his departure Edward N. Shelton, Esq., will communicate to the
department in answer to any letters to me addressed as above.

Ex. Doc. 10——12

178 - AVES ISLAND. .

Memorandum of claim vs. Venezuela, tf isle is retained.—Philo S. Shel-

ton, and Sampson & Tappan

GUANO.

claimants.

f. One half of 50,000 tons—say 25,000 tons, $12 50 per
ton only was charged as per statement January
2B) WSIS scsascnsseos sonandoosna obo dossnscbastcous eseeeeeeeee

It appears the quantity was estimated too low, and
we charge, therefore, for 12,500 tons additional
ait, SBWAD TORIGES Soooeass seg saonscosacs soa08NO5990s JenDseaEsdDD

II. We charged per statement of January 29, 1855, for
falseifreight, damages, &C..........csesessccrsconcsss on
We have since ascertained the following false freights,
damages, losses, &c. :
1. Brig John R. Dow, false freight, &c .........20..00000
. Loss on sale and sacrifice of said brig since said
SUI TSSTYS Ml toa Seg ec pA HRBERRD ucctiocoed 50660 250399900 2090084
Ship Junius, false freight...........-..0+-s--0-sssseenseaes-
. Ship James N. Cooper, false freight...........0ssec00e-
Bark Carlo Mauran, false freight.........cssesseceeseees
Bark Amazon, false treioht -peees-.0-s0+--seremeresceeshee
Brie Viator, false rerahitavercscssscsscessss sss sareeereerses
pebric) Mary, Pearce, ralSeimelohtace.c.ccescececcsecte aces
. Bark Mary Smith, false freight-...........cscseeseeeeeees
. Lining and fitting for guano trade, &c., Junius,
J. IN. Cooper, Carlo Mauran, and Amazon, at
WOH QICACH Ase eteesicessatsoeseecd oes qstsececsdeicbcscaeoseess
11. Additional loss of profit of $2 per ton on freight,
at $7 per ton, the same being worth $9 per ton
in winter and spring Of 1854-5 ........secceseseeeceeeee
12. Losses on engagements, &., for other vessels be-
sides the above, (bark Brilliant and others,) es-

wo

FO DI ge G9

—

mated at Go,000 eee a... ..--00sesenronenmesacse-mekanse ane

13. Expenses of discovery of isle in J. R. Dow, in
Be aaa secon tase Mtadteies aa'ee op acdaeecy Mussanbues a eonegdetee
14. Loss on abandonment of Arenas.........cscecedecseseees
ATOM eae oe ee cee cddesttias tates cele yea

The actual losses are therefore $16,320 more than
stated January 29, 1855, for false freights, dam-
ages, and losses, &c., and since ascertained as
the result of the) exp UlsiON ..0.2-...0--ccscnueseccsunenee

III. Loss on wharves, houses, sheds, and property at the
isle, as per statement January 29, 1855..............

It is ascertained that the cost at the isle of the wharves,
houses, sheds, and property, putting them up,
and of implements, tools, &c., and of provisions,
water, &c., sent to isle up to December 26, 1854,
and freight thereon, &c., was at least.-......s.e000

Deduct value of provisions consumed up to said day,
and value of the provisions and property allowed
to be brought away .....csscesereseceeees 500008 coc SEEORe

Value taken by Venezuelans ......... soncecsbsAadeen

The same amounting to $6,100 more than the amount
($8,500) charged January 29, 1855, is accord-

eeecorcersceces

42,500
3,000

850
5,950

2,500
2,210
1, 450
1,820

500

1,000
3,040
5,008

3,000
3,500

36,320

ingly charged as now ascertained .......sscccseseseeee panddobacnsadas 6,100
1V. We claim additional cumulated and augmented
losses, partly from the delay of reparation for two years,
viz:
1. Injury and damage to credit and business from
embarrassments consequent on losses from evic-
GD soo nosmencqpqsognoaae gonbo apo osoodaodnanseampAAOAoada9009- Miessips sarees ROU MCRGm

AVES ISLAND. ' TF9

STATEMENT—Continued.

2. Attorney’s expenses, &c., on visit to Caraccas.....| $5,000
3. Agents, clerk hire, printing, witnesses, official
fees, and Other CXPENSES.......-.ssececevvescscerencecrese 5,700

4, Commission for collection, (a portion,) say 10 per
cent. commission charged to Venezuela, which,

Gif) Se Male NLS ---< scoce Ugo sadonbeeproce sconcacgenereerooubh 30,690
———.—| 41,390
5. Interest on $341,000 only, from December 26,
1854, to February 26, 1857, two years and two
months, at 6 per cent. (But one half legal in-
HELE ty OL WEME AME] irctecekeaclssccenc/siaedasi/actesinestccesselncmessiaaacscaes 44,330
[If further accumulation of interest the same to be
charged. ]
Amount of augmented damages since January 29, —————EE
1S 5 Bh:cocnenboandssbagddene once le Eade ousdatEREdooreH docoosdundceal|cboosuceouaochs 314,390 | $341,000
314,390
Ageresate now claimed if isle be not restored. .......s..Jecsecscescecacsleoccesrsecansees 655,390

Tf isle is offered to be restored, and if accepted by claimants, we should
be paid as follows:

* I. 1. For all the guano taken from the isle since Decem-
ber 26, 1854, at $12 50 per ton, correct quantity
HOMER PLOPEHly ASCeNAIMEM. cls essansecececeemaderctes|acrecsecuseben|seceatcnccsnce= $
2. For depreciation in value and price of the residue
of said 25,000 tons and said 12,500 tons, in all
37,500 tons, at $7 50 per ton, since December
26, 1854, at $5 per ton, being the present maxi-
mum value owing to mismanagement of it since
DEI « c cconeoceqnoncecounscogqnosaococtanc ee catncasonoUbcondeccn | beonobeepuDaBad bobcbadcadssbec
If. 1. All the foregoing items from No. 1 to 14 (II)
SHOWA He MVAIONAN: saecccosccocanecoseesestaccesectoscceenes $36, 320
Il. 1. We should be paid the above item of $14,600, less
10 per cent. on cost, being present estimated
value of what of it, itis presumed, is yet there
if restored—say deduct $1,460 ...........sseccceeeeers 13,140
. Damages to credit and business as above............. 50,000
. Attorney’s expenses to Caraccas, &c., as above. ;

{V.

SPS eMi Se CIEL S ) GC:, $55,100) ss. 0dc0te<tdendseseesee cons
Been Fecene A 110,160

ebeelsccccsoae ees csslececcccesencges

Ou Woe

. Commissioners, at 10 per cent. on amount paid
. Interest on amount paid as above

BP ee oesevooesccesererss seseseseceseses|sosseseseesoces

Amount,

Coe seen ase secor assesses sens ses esos essere EESHSTFED SETS OO SESED OOOH EDO TED SED OeSEER

H.S. SANDFORD,

Attorney for Claimants.
New York, January 26, 1857.

180 AVES ISLAND.

Mr, Shelton to Mr. Marcy.

Boston, January 31, 1857.

Sir: I am informed that by a vessel which arrived at New York the
day after Mr. H. S. Sanford sailed for St. Thomas, (the 28th,) that an
agent (a Mr. Leon de la Cova) of the Philadelphia Guano Company
arrived from Caraccas via Porto Cabello, with a new contract made
about the 15th of December last, between the present Venezuelan gov-
ernment and that company, for all the guano islands in the Caribbean
sea, the company agreeing to yield six dollars per ton ‘‘royalty’’
hereafter for all the guano gathered, and to pay all the damages and
protest fees on its dishonored bills of exchange under the old contracts,
and being thereupon released from all lability on account of said bills.

I am informed also that the contract in the possession of said agent,
and shown by him, was duly authenticated and certified by the United
States minister at Caraccas, under his official seal, and presume there- ~
fore that he has transmitted a copy or fully advised the department
thereof.

With reference to the fact of the increase of the royalty, the contract
may be an important piece of evidence for us, as showing what the
parties value the average of Venezuelan guano at, at the islands where
they are at no expenses for lading it, and also in other respects ; and
this whether or not (in express and specific terms) it includes Aves or,
Shelton’s Isle. As I cannot divine any good reason why it would be
improper for us to be supplied with it, if it is in the department, I
beg to ask you that I may be furnished such copy if it is received, or
if received hereafter, so soon as it is received, and if it is not trans-
mitted, that I may be furnished with any information respecting it
the department may have.

I should not trouble the department if I was not satisfied that my
information was correct.

I would also respectfully solicit to be advised if anything has been
received from Mr. Eames since the dispatch of the 10th of October, a
copy of which was furnished to Mr. Sanford; and if so, please address
me, directed to H. 8. Sanford, Brevoort House, New York, with which
direction I shall soonest see it, and it be sooner sent to Mr. Sanford.
I can send it to him from thence in a few days.

Iam, very respectfully, your obedient servant,

PHILO 8. SHELTON,
For self and others.
Hon. Wm. L. Marcy,
Seeretary of State.

Mr. Marcy to Mr. Sanford.

DEPARTMENT OF STATE,
Washington, February 3, 1857.
Srr: I have to acknowledge the receipt on the 31st ultimo of your
communication dated the 22d ultimo, with its accompanying memo-
randum, both of which papers are in triplicate.

AVES ISLAND. 181

One of these has been placed on file, another authenticated under
the seal of the department is herewith returned to you, and the third
copy similarly attested, has been transmitted to Mr.*Hames with a
corresponding instruction. ;

Lam, &c., |
W. L. MARCY.
Henry 8. Sanrorp, Hsq.,

Mr. Marcy to Mr. Shelton.

DEPARTMENT OF STATE,
Washington, February 3, 18517.

Sir: In reply to your letter of the 31st ultimo, I have to acquaint
you that Mr. Eames has not communicated to this department a copy
of the contract which you have been informed was executed in Decem-
ber last, between the Philadelphia Guano Company and the govern-
ment of Venezuela, and duly authenticated under the seal of the lega-

tion, nor has Mr. Hames mentioned the existence of any such contract.
' Our dates from Caraccas, however, only reach the 6th of December.
Should the department receive any such document as that referred to,
and there should appear to be no reason for withholding it, a copy
will be forwarded to you as you request.
Tan, sir, &e.,
W. L. MARCY.
Puito 8. Suerton, Esq., Boston.

No. 46.] Mr. Marcy to Mr. Hames.

DEPARTMENT OF STATE,
Washington, February 3, 1857.

Sr: Mr. Henry S$. Sanford, the attorney of Shelton and other claim-
ants, against Venezuela, who is now on his way to Caraccas with im-
portant dispatches to you in relation to the Aves Island question, has
addressed to this department a memorial respecting the claim which
he represents, accompanied by a new and corrected memorandum of
the items forming that claim. A certified copy of these papers is, at
Mr. Sanford’s request, herewith forwarded to you.

Without entering upon a detailed examination of the items compo-
sing the claim as now presented, it may be remarked, that the grounds
upon which it is offered are sufficient to warrant the department in
. transmitting it to you as the basis of your demand upon the govern-
ment of Venezuela. The claimants, by their attorney, allege that
their former statement of losses, &c., was hastily made up from crude
and unreliable data, and that the substituted amounts are susceptible
of proof from authentic sources.

182 AVES ISLAND.

Mr. Sanford has also made up a statement of the claim, based upon
the supposed proffer by Venezuela to restore the Aves Isle in question,
as either a partial or complete atonement to the claimants for their
lossess. ‘The remarks which, in bis memorial, he makes upon such a
contingency, are approved by the department, and it is not deemed
necessary to do more than commend that part of his argument to your
particular attention.

I am, sir, your obedient servant,

W. L. MARCY.
_CHartes Eames, Esq.

To the Department of State of the United States:

‘Detailed statement of the injuries and damages sustained by Philo
S. Shelton and George R. Sampson and Lewis M. Tappan, in con-

sequence of their being tortiously evicted, in violation of the law of .

nations, and of justice and right, by the naval and military forces of
the Republic of Venezuela, acting under authority of the government
thereof, in the month of December, 1854, of the isle in the Caribbean
sea, situate about north latitude 15° 40’, and west longitude from
Greenwich about 63° 38’, formerly called ‘‘ Aves’’ or ‘‘ Bird Island,’’

and now called ‘‘Shelton’s Isle;’’ and by reason of their being dis- °

possessed in like manner, by said forces, of the guano on said isle,
and of the houses, sheds, wharves or piers, timber, planks, and other
fixtures and utensils, boats or launches, barrows, implements, tools of
various kinds, buckets, tubs and baskets, water-casks, water and pro-
visions, and other articles, their property, then being on said isle,
taken by said forces; and likewise of their injuries and damages other-
wise sustained by reason of their expulsion as aforesaid, and the
expulsion of their said agents and workmen, and of their vessels
therefrom; and the prohibition and exclusion by said government
from visiting said island and taking the guano therefrom, and by the
breaking up of their employment and business in the guano trade at
the said island; and by keeping the said isle and guano and their said
other property from them, ‘The said outrage having been perpetrated
without any application, or notice thereof, to the government of the
United States.

I. These claimants claim for 37,500 tons of guano on that part of
said isle occupied by them December 26, 1854, of the value of $12 50
“EP SOLU Oye aN EAM Nay ME ReN clas and! ea EE 5 $468,750

(See memorandum of claim transmitted to department
January 27, 1857, and letter from H. 8. Sanford, Esq., to
department, of same date, inclosing the same for explana-
nation of the above charge.)

Proofs as to quantity, quality, and value of guano on
the isle at the time of the eviction, December 26, 1854:

_ 1. These claimants, May 9, 1856, filed in the department
a copy of a letter from the. Hon. E. Hammond (‘‘in the
absence of the Harl of Clarendon’’) of the British ‘‘ Foreign
Office,’ dated April 11, 1856, to. George M. Dallas, the
minister plenipotentiary and envoy extraordinary of the

Se a a ee

AVES ISLAND.

United States of America at London, in answer to a request
by Mr. Dallas at their instance, inclosing an extract from
an official letter or report of Commander DeHorsey, of’ the
British navy, who visited said isle in July, 1854, which
report is dated August 1, 1854, and wherein Commander
DeHorsey, after stating his visit and information given to
him as to the price of the guano in the United States, being
$35 per ton, says: ‘‘At a rough estimate I should say there
were about 200,000 tons of guano on the island, which, at
£7 per ton, would make the island worth one and a half
million sterling.’’ In corroboration of this estimate, claim-
ants state that they have been informed that a larger one
was published, soon after they occupied the island, in the

summer of 1854, in a French West India paper, called.

“‘T, Outre Mer,’’ which stated the quantity at 250,000
tons. ‘They annex a copy of a notice of said publication
in an American newspaper, given to them by Mr. F. Colby;
and also an extract from a publication in the New York
Tribune, written by Mr. Colby in July, 1855, noticing
Commander DeHorsey’s report; and also a notice in the

‘American Agriculturist,’’ of November 8, 1854, of said

report, which are part of the publications referred to in
Captain Gibbs’ deposition.

2. The printed deposition of Captain Nathan P. Gibbs,
dated April 12, 1855, transmitted by claimants to the Uni-
ted States State Department, April 14, 1856. (See Ex.
Doc. No. 25, 3 Sess. 34th Cong., pp. 61 to 75.)

He states, in answer to eighth interrogatory, (p. 67,) that
from his first examination of the isle and guano, when he
landed on it in April, 1854, his estimate of the guano was
“over 150,000 tons,’’ of which 75,000 tons was ‘‘first
rate,’’ and the rest ‘‘good merchantable guano ;’’ and that
this estimate of 150,000 tons did not include a large quan-
tity of inferior guano that would, however, then (in 1854)
‘“bear freight to the United States.’’ In same answer he
states that from the knowledge he subsequently acquired,
by being nearly six months on the island getting guano,
he does not regard’ Commander DeHorsey’s estimate as
‘‘extravagant’’ or “‘erroneous.’’ In his answer to the
eleventh interrogatory, he quotes the item stated for the
guano, in the claim filed in January, 1855, ‘‘minimum
25,000 tons, probably 50,000 tons,’’ at $12 50 per ton,
$312,500, and says it ‘‘is much below the amount’ these
claimants ‘‘might justly claim.’’ He states the aggregate
quantity shipped from the isle, whilst occupied by claim-
ants, was, by claimants, about 7,200 tons, and by Lang &
~ Delano, 2,000 tons: in all 9,200 tons, and that it was not
the best on the isle. (See answer to sixth int. p. 65, and
to eighth, p. 68.)

3. Mr. John McCabe, in his printed deposition, made
June 28, 1856, sent by claimants to the State Department

=

183

184 AVES ISLAND, :

June 30, 1856, (see Hx. Doc. above cited, p. 81,) says:
‘‘That he went to the isle with Captain Gibbs in the John
R. Dow, and arrived there in July, 1854, the same day that
Captain Wheeler did in the brigantine M. H. Comery, and
that they both landed next day, (sea time;) that he staid
there till Christmas, 1854, when the Venezuelans took pos-
session by military force; that he thinks there were 200,000
tons of guano on the island, and that was the general esti-
mate, and one half was first class, if carefully procured;
that he won’t pretend to give a positive valuation, but he
thinks that there were at least 75,000 tons on Captain
Gibbs’ part of the island worth $13 or $14 a ton, consider-
ing that he had all the means of gathering it and loading
it, prepared for his use, and hands there also; that he means
the value of the isle to the owners, they having there means,
wharves, houses, boats, and the lke, and he thinks the
freight ought not to be.more than $8 per ton to the United
States in the winter time, and if any one bought it at the
island for the price he states, at the generally going prices
in the United States, they would make good freights, and,
covering all expenses, he supposes would make heavy profits,
provided they know how to get it up for market, and how
to sell it. The chief part we sent off was the most inferior
sort on the island, which Captain Gibbs got out first to
reach the best.”’

4. Captain James Wheeler, in his written deposition,
made May 7,°1856, transmitted to the U. 8. State Depart-
ment, May 9, 1856, (see Ex. Doc., above cited p. 90,)
Says:

‘T think there was 50,000 tons and more of first class
guano on Gibbs’s part of the island, staked off by me, and
as much also on my part, and this was not half on either
lot, but I estimate that the rest was not all good merchant-
able guano; say 50,000 tons and moreoneach. I consider
the 50,000 tons which I call first class guano, on each
of the two lots, as worth at the isle, with the privilege of
preparations for getting it and loading it there, use of
wharves, &c., there, fully $15 per ton, and much more,
there, and the residue was not worth so much, but it would
bear good freight. There is great skill and experience in
gathering and shipping guano, and sending it to market.
The practical experience I refer to is, in my opinion, worth
a great deal more than the quackery of men who call them-
selves chemists about this article. I have always, since
June, 1854, regarded the island and guano as worth about
two millions of dollars, if properly managed.”’

And again, (p. 91, ibid.,) ‘“‘I am informed that little or
no profit was made on the guano brought from the island
whilst we had it, because we gathered mostly the outside
and indifferent guano nearest the wharves, before we could
get at the best, and because also the difficulties caused by

a i i a a rl i

AVES ISLAND.

the eviction, forced them to sacrifice it. Ihave heard, how-
ever, it brought between $23 and $30, (the account of sales
will show,) but the expenses were great, as we were just
starting the establishment, and the profits afterwards would
if we had been allowed to go on, have been pretty much
clear gain.”’

5. Mr. Richard Thornell, in his written deposition,
made May 1, 1856, (Ex. Doc., above cited, p. 78,) trans-
‘mitted to the U.S. State Department May 10, 1856, con-
curs fully in respect to the quantity, quality, and value of
the guano on the isle, with the other above-named witnesses,
showing that claimants’ charge is much less than what they
might rightfully have charged.

6. Mr. Joseph Herbert, who was also several months at
the isle, in his deposition made in August, 1856, trans-
mitted to the United States State Department by claimants,
in August, 1856, corroborates the statements of the other
witnesses, proving that claimants’ charge for the guano is
just and reasonable and below the true quantity and fair
value at the isle.

Every one of these witnesses was on the isle several
months and engaged in gathering guano. None of them
are interested in the claims of Mr. Shelton and Sampson
& Tappan. No proofs have been adduced, so far as we
have been informed, to impeach their testimony, or in con-
tradiction of the verity of their statements or correctness of
their estimates. Evidence is on file in the State Depart-
ment of their respectability and credibility, and also on the
files of the United States Senate. (See Ex. Doc. above
cited, pp. 76-78 for some of said evidence. }

7. The printed pamphlet, published in 1856 by the Phila-
delphia Guano Company, whose agents occupied the isle
under authority of Venezuela after our eviction. The
names of the directors of the company are appended to it,
‘one of whom is Don José J. Keefe, the consul of Venezu-
ela, at Philadelphia. For value and quality of guano at
the isle, see page 9, (an extract from page 95 of Agricultu-
ral Report of United States Patent Office of 1854, and other
publications there quoted and adopted ;) and see also page
15, where the wholesale price of this guano in the United
States, is stated to be from $25 to $40 per ton. See also
ibid. ut passim for the quantity and value, generally, of the
guano on the isles in the Caribbean Sea. The Venezuelan
government cannot gainsay these statements of their sub-
stitute, without self-stultification or self-crimination. Seve-
ral copies of this pamphlet were sent to the United States
State Department in the spring of 1856, to be used as
evidence in this case.

8. An official letter of Don José J. Keefe, consul of the
Republic of Venezuela, addressed to Moses Taylor, Esq., of
New York, dated January 12, 1856, in which he states

185

186 fi AVES ISLAND.

that the Philadelphia Guano Company were at that time
‘‘engaged in shipping guano from said island, and had a
large number of laborers on it ;’’ and likewise the ‘‘ Notices’’
referred to therein, and the letter of Mr. Taylor to him.

9. Accounts of certain sales of guano imported by claim-
ants in the winter of 1854-55, and spring of 1855, showing
its value at that time in the United States.

10. The ‘‘ Wallace contract,’’ dated December 21, 1854,
by which Venezuela exacted from Wallace, for all the
guano he or his assigns might gather in fifteen years, from
all the isles claimed by Venezuela in the Caribbean sea,
(and expressly designating, first, this isle,) $5 per ton; and
the contractors to bear all expenses, and pay in advance
$200,000 by ninety day bills on Philadelphia; and to exhibit
manifests of all shipments to the officers of the Venezuelan
government, who were authorized to supervise them; and
besides, Wallace was, without remuneration, to keep up
three armed vessels of the larger size, at his own expense,
for said government, which, in case of revolution, should
reinforce the Venezuelan navy, and be under the command
of its officers whilst the revolution lasted; and the guano
vessels to be liable to harbor dues, except in case of stress
of weather or actual injuries; and Venezuela not to be
liable for indemnity or damages if dispossessed of the isle.
These conditions were equal to at least $12 50 per ton, and
Venezuela cannot gainsay her own valuation of the average
of all the Caribbean guano (good, indifferent, and bad)
thus made; though, if less than real value, we are not
bound by it.

11. The ‘‘Pickerell contracts,’ dated September 29,
1855, (see Ex. Doc. above, pp. 22 to 26,) granting a monop-
oly of the guano to the Philadelphia Guano Company, as
successors of Wallace, for the same price of $5 per ton, the
same term of fifteen years, and similar conditions, except
with regard to the armed vessels.

12. Claimants have been informed that a contract has
been entered into, within a few weeks past, between said
company and Venezuela, renewing the Pickerell contract,
but exacting $6 per ton for such guano, besides sundry
damages; which, if made when obtained by claimants, will
be offered as evidence of the like effect as the other contract
above cited.

13. Official statistical accounts of the imports of guano
into the United States from July 1, 1854, to January 1,
1857, showing that the average valuation of Caribbean
guano exceeds that made by claimants of .$12 50 per ton;
and also of the exports from United States same time to
like effect. ‘

Tt will be seen that claimants ask, above, compensation
for less than one fourth of the guano on the island. They
have not estimated for the ‘“‘good merchantable guano,’’

AVES ISLAND.

and the ‘‘inferior guano,’’ not certainly worth the $12 50
charged, but shown to be on the isle in addition to that
charge, and to be of value. The lowest estimate, by any
of the witnesses, of the ‘‘first class guano,’’ exceeds the
quantity claimed more than thirty per cent., and some of
them exceed it sixty per cent. and even more.

II. The brig John R. Dow was owned by Philo 8S. Shel-
ton, and was registered as of the burden of 197 85-95 tons;
but she could carry from said isle to the United States at

least 280 tons of guano. She was on a return voyage from
Shelton’s Isle to Boston, with a cargo of guano, at the time
of this eviction. Her cargo was landed, and preparations
made for sending her back for another cargo, and to send
provisions, stores, water, and other articles, by her to the
isle for our use there, when, January 15, 1855, being then
first advised of any difficulty at the isle, she was detained
for the receipt of more definite information; and on the
receipt, January 29, 1855, of the tidings of the eviction,
her outward voyage was consequently necessarily aban-
doned. The expenses and losses encountered, being reason-
able demurrage or hire for her for the time she was so
detained, and the outlay for the voyage sacrificed by such
abandonment; the losses on the purchases for shipment by
her on her outward voyage, and the valuelessness of many
of them, and the uselessness of equipments for said vessel
in said trade, and the frustration of the arrangements in
regard to the employment of said vessel, caused by being
forced to abandon said voyage and business, and the loss
resulting from her remaining idle and out of employment
at Boston till sold in the latter part of February, 1855, are
Bante, torbe motiless thats. (0)...

(See depositions before referred to, and other proofs, with
our attorney in Venezuela. See Captain Gibbs, ans. to int.
six, p. 66, and eleven, p. 74.)

III. In addition to the foregoing charge respecting the
brig John R. Dow, the claimants state, by reason of the
embarrassments caused by the breaking up of their said
business, and commercial disappointments and difficulties,
the direct consequences thereof, said P. 8. Shelton was con-
strained to sell said vessel at a sacrifice, being unable at
that season to obtain for her, at Boston, but $3,800, when
he had been offered in June previously, and had refused,
$7,000 for her; the loss on said sale of said brig being,
estimating the ordinary wear and tear and increase of age,
at least $3,000, and which amount it is considered is justly
chargeable as damage resulting from said eviction...........

(See depositions before referred to, and other proofs, with
our attorney in Venezuela. See Captain Gibbs, ans. to int.
ten; p. 72; eleven, p. 73; and twelve, p. 74.)

IV. The ship Junius, registered at 561 71-95 tons, but
she could.and did carry from the isle to the United States

187

$2500

3,000

188 AVES ISLAND.

850 tons of guano. She was on her return voyage from
the isle to the United States when the eviction took place,
and arrived with a cargo of 850 tons in New York, Decem-
ber, 1854; value stated, in manifest, at $15 per ton; for
which freight was paid $5,100. She was chartered at $6
per ton for guano, delivered in New York, which was a very
advantageous charter for these claimants, but the charter
was abandoned in consequence of the difficulties at the isle.
On account of this vessel, it is conceived they are entitled
to reasonable damages for being compelled to abandon the
charter, each trip not less than $1 per ton, and at least one
PMG [OP ee er visa einige bel taottslons a ¢ Gola d'9 4 STATE eG RR dah s 6's) Aaa oer
_ (See depositions before referred to, and other proofs, with
our attorney in Venezuela.)

V. The ship James N. Cooper, was, at the time of the
eviction, on her way from New York to the isle. She sailed
from New York, January 15, 1855, before advices could be
sent to Boston for her detention. Her registered tonnage
was 549 30-95 tons, but she could carry from the isle to the
United States 850 tons of guano. On her arrival, about
the 2d of February, 1855, at the isle, she found it in pos-
session of the military forces of Venezuela, which prohib-
ited the vessel from taking guano or any thing else from
there, and peremptorily ordered her off, and she came home
in ballast. She could and would, if she had not been pre-
vented by the Venezuelan forces, have laden and brought
to the United States at least 850 tons of guano, which, at
$7 per ton freight, would have amounted to $5,950, and
therefore these claimants regard the said sum’ as justly
chargeable by them as ‘‘false freight’’ to the government
of Venezuela, and it should be paid by said government...

(See depositions before referred to, and other proofs, with
our attorney in Venezuela.)

VI. The bark Carlo Mauran was at the isle at the time
of the eviction. Her registered tonnage was about 566
tons, but she could carry from the isle to the United States
900 tons of guano. She was chartered at $1,100 per
month for the vessel, the claimants to pay the wages of the
officers and crew, and the expenses of victualling, fitting
out, &c., each trip, (not including lining and port charges ;)

the whole amount being about $2,250 per month. She was .

ordered away from the isle on the 25th day of December,
1854, and brought but 800 tons to the United States. The
false freights on the deficiency in her cargo, say 100 tons,
at $7 per ton, amount to $700. In consequence of the
breaking up of the business at the isle, we were compelled
to relinquish her charter, which was an advantageous one,
and also lost the expenses of fitting her out, (not including
lining,) and of sundty provisions, &c. We estimate the
whole at $2,500, and consider it chargeable to the Repub-
lic-of Venezmelaws tagid: bd sash ie Siemes. abet eee fetid G2 Bee

$850

5,950

AVES ISLAND.

(See depositions before referred to, and other proofs, with
our attorney in Venezuela.)

VII. The bark Amazon was at the isle when the evic-
tion was made, and was but partly laden when she was
ordered off. Her registered tonnage was 385 tons, but she
could carry from the isle to the United States 600 tons of
guano. On her return to the United States, she brought
but 490 tons. Wecharge for false freight, in the deficiency
of her cargo, 110 tons, at $fper ton, making $770. We
paid for the passages of part of our employés at the island
to Boston, in her, and for the provisions used by them on
the passage. She arrived at Holmes’ Hole about January
29, 1855, and in Boston a few days later, up to which time
the wages of said employés were paid. The passages,
_ expenses, and the wages of said employés, and provisions,
amounted to at least $1,440, which, added to said $770,
false freights, makes $2,210, that we consider justly charge-
able to the said Republic of Venezuela......................0008

(See depositions before referred to, and other proofs, with
our attorney in Venezuela.)

VIII. The brig Viator arrived at the isle whilst the Vene-
zuelans were there, before the final eviction, and had laden
but about 80 tons aboard, when it was made. Her regis-
tered tonnage was about 208 tons, but she could carry 280
tons of guano from the isle to the United States. After
being driven away from Shelton’s Isle, she went to St.
Thomas to procure a freight, and prevent loss, but failed.
We were enabled to compromise for the false freights of
this vessel by paying $1,005 92, but we conceive we have
a just right to charge for all that she would have brought
to the United States, and was prevented from bringing,
viz: 280 tons, (deducting the 80 tons she did bring,) being
at least 200 tons at $7 per ton, being $1,400, and also her
expenses and port charges going to St. Thomas for freight
remem OSS MIRON L203 ANSE AU

(See depositions before referred to, and other proofs, with
our attorney in Venezuela.)

IX. The brig Mary Pearce, was at the isle when the evic-
tion took place, and was ordered off without being allowed
to take any cargo. She returned to the United States in
ballast. Her registered tonnage was 192 tons, but she could
have carried from the isle to the United States 260 tons of
guano. We were enabled to compound and compromise for
her false freights for about $1,470, but we conceive that we
have a just right to charge for all that she could and would
have brought to the United States for us, if she had not been
prevented from so doing by the military force of Venezuela.
nS ath PeEton is... 0) OFLU AUD vole)

(See depositions before referred to, and other proofs, with
our attorney in Venezuela.)

X. The bark Mary Smith was in Boston at the time of

189

$9,210

1,450

1,820

190 AVES ISLAND.

the eviction. Her registered tonnage was about 333 tons,
but she had landed in Boston, from the isle, 440 tons, and
could have brought 500 tons. In consequence of the in-
formation of the eviction, these claimants were constrained
to effect a cancelation of her charter, which, if they had not
been expelled from the isle, was highly advantageous to
them. The loss thereby was at least $500............c..ceeees

(See deposition before referred to, and other proofs, with
our attorney in Venezuela.)

XI. In reference to the ship Junius, the ship James N.
Cooper, the bark Carlo Mauran, and the bark Amazon,
these claimants expended considerable sums on each, in
lining their holds throughout, and otherwise rendering
them suitable to carry guano, as is necessary with respect
to large vessels in this trade, to prevent injury to the ship
from the cargo; and the expenses thereof, for each vessel,
averaged more than $250, or, in all, the sum of one $1000,
all of which expenses were lost to claimants as the result of
said eviction, and of their being compelled to abandon the
employment of said vessels in said trade, and relinquish
paeir charters,-isay $l 000s alaks.. doe doceecgee eee ae

(See depositions before referred to, and other proofs, with
our attorney in Venezuela.)

XII. And these claimants state, in reference to the pre-
ceding charges for false freights, that whilst it is true that
they were evicted at a season of the year, (December, 1854,)
when freights are generally lower from the northern Atlantic
ports of the United States to the Caribbean sea than at other
seasons, and when, also, labor for that southern climate can
be more readily procured, yet such facts afford no ground
for Venezuela being exonerated from the payment of fair
and usual freights, though beyond the amount claimants
actually paid for such false freights. If claimants were
fortunate in obtaining freights or charters for themselves
Venezuela has not acquired, by her wrongful and tortious
act, any just claim to them. Besides, whilst freights are
low, the markets of the United States for guano, both as to
demand and prices, are always better in the late winter and
in the spring months than in the summer and fall; and, as
in this case, the cargoes belonged to claimants, the less the
freights they had to pay the greater their profits on the
cargoes; and their charters, in nearly every instance, ex-
tended, at same prices, into the season when freights be-
eame higher. Some of them were for $6 per ton only;
others by the month or by the trip. All conversant with
such affairs know that there are numerous charges outside
the mere freight or charter of various kinds—vort charges,
custom-house dues, quarantine fees, pilotage, advertising,
brokerage, small casualties, and the like—and that there is
no little labor and trouble necessarily encountered by those
who employ vessels, and which swell to a considerable
amount in short voyages. These claimants have charged

$500

1,000

AVES ISLAND.

at the rate only of $7 per ton for false freights, for some
1,520 tons, amounting to about $10,640, without including
the charges for the brig John R. Dow, the ship Junius,
and the bark Mary Smith, for damages, &c., at the same
rate of $7 per ton. They however insist that the facts above
stated should not only be considered in deciding as to this
charge, but they further insist that, insomuch as such price
is actually from $1 to $2 lower than the usual freights for
articles carried less than is paid for guano, with a prospect
of cargo, in and out, between the West India Islands con-
tiguous to Shelton’s Isle, and either Boston or New York,
as there was no outward freight to Shelton’s Isle, except
their own shipments of supplies, &c., they may, under
the circumstances of this case, justly increase their charge
to $9 per ton for all said false freights, and which amounts
to $13,680, being a difference of $2 per ton, or $3,040......

(See depositions before referred to, and other proofs, with
our attorney in Venezuela.)

XIII. These claimants had, in 1854, and in January, |

1855, before they heard of the eviction, made arrange-
ments for the employment of sundry other vessels besides
those above named, for continued employment in said trade

to said isle, on favorable terms, and incurred considerable :

trouble and expense in making such arrangements, and
they were compelled by said eviction to abandon and re-
nounce all said arrangements, and to give up the said ves-
sels, insomuch as, by reason thereof, their business at said
isle was destroyed, and said vessels rendered utterly useless
tothem. The damages resulting from being so obliged to
adopt such course must necessarily be a matter of general
estimate. The claimants allege that they sustained thereby
at least $5,000 damage, without reference to the effect other-
wise on their other business. This was not specifically set
forth in their statement of January 29, 1855, for reasons
given, and likewise, in part, because claimants had then but
imperfect means of estimating them, and were not certain
that the same might not be avoided in some way, and per-
haps by the continuance of their guano trade, if not to said
isle to some other place, making the additional amount of

(See depositions before referred to, and other proofs,
with our attorney in Venezuela. See Captain Gibbs’s Ans.
to int. 6, p. 66, as to bark Brilliant and others.)

In addition to the foregoing, the claimants insist that
they are justly entitled to the following charges, as actual
losses and ‘‘damages’’ connected with the establishment
at Shelton’s Isle, and of which they were prevented, by
- said eviction, from obtaining the reimbursement, the same
not being specifically stated in said estimate of January 29,
1855, viz:

XIV. These claimants conceive they have a just claim to
reimbursement of the expenses of the cruise of discovery,
in which said isle and guano were discovered, as a derelict

19]

5,000

192 AVES ISLAND.

and desert isle, in April, 1854, by the agent of said Philo
S. Shelton, in the brig John R. Dow, owned by him, bur-
den 1978 tons, being the value of the hire of said brig
and the wages of an extra crew, consisting of eleven or
twelve men, and provisioning said crew and insurance of
said brig so employed, say nearly three months...............

(See depositions before referred to, and other proofs, with
our attorney in Venezuela. See Captain Gibbs’s Ans. to
int. 3, p. 62, and to 10, p. 73, as to expenses, and Cap-
tain Wheeler’s affidavit, p. 90.)

XV. These claimants conceive also they have a just
claim to reimbursement of the expenses, losses, and dam-
ages occasioned by the relinquishment, by Philo S. Shel-
ton, of his guano trade at Arenas, in the Gulf of Mexico,
and the abandonment of his wharf and houses there, and
by the sacrifices and losses by reason of his being obliged
to transport his workmen thence to New Orleans, and to
sell his implements at New Orleans at a sacrifice, and the
expenses of said transportation, in order to take possession
of said isle; all of which are properly chargeable to the
expenses of making the settlement and establishment in
said isle, and which were lost to claimants by said evic-
tion, and which amounted to upwards ‘of ................eeeee0

(See depositions before referred to, and other proofs, with
our attorney in Venezuela. See same as referred in XIV.)

XVI. These claimants also claim for the value at said
isle of the timber, lumber, planks, iron bolts, rods, bars,
joists, pine boards, nails for houses, canvas, ropes, tackles
and pulleys, and other like materials for coverings and
awnings; table, stools, benches, chairs, posts, poles, ma-
terials for bunks, used for the comfort of the workmen at
night, or when prevented from work in the day, and for
conveniences for sleeping, water-casks, water, provisions
and stores of various kinds, and spirituous lquors, and
oil and lamps, pots, kettles, pans, knives and forks, cups,
plates, and other dishes and utensils for cooking and for
the table, and medical and surgical instruments, etc. ; also,
two six-pounders. and two dozen muskets and twenty-five
large pistols, and ten Colt’s revolvers and twenty-five cut-
lasses, and twenty-five boarding-pikes, and a magazine of
fixed ammunition, and powder and ball for cannon and
small arms, and an extra flag and flag-staff, a liberty pole,

&c.; in fact, everything that was appropriate and neces-

sary for a company of forty men employed at a place where
nothing could be obtained except from such supplies.
Wheelbarrows, wheeling-plank, buckets, tubs, baskets,
shovels, spades, picks, hoes, rakes, drags, extra anchors
and cables wherewith to moor vessels at the isle when they
could not lie at the wharves or piers, and extra boats and
launches to load the guano on board such vessels, and some
of the other articles and property were also purchased and

$3,000

3,500

et tia i ts

AVES ISLAND.

shipped to the island for use thereat in said business; and

likewise for the freight and other expenses incident to their

transportation to said isle of said articles, and the time,

labor and trouble and expense of landing and taking care of

said articles at said isle; and for the time employed and

labor and trouble and expense of getting rock at said

isle, and for the time, labor, trouble, and expense of con-

structing said wharves and pier, houses, sheds, &c., at said

isle, and the wages of the guano laborers during the time

they were delayed from work till said wharves and houses

were constructed, (demurrage of vessels not included

E110 RSRB ae oad 2 chcedoc oF ae eee ae esRRE +» $21,500
From this amount their may be made the fol-

lowing deduction, viz: estimated value of the sup-

plies, provision, &c., at the isle, consumed by the

persons in our employment in the guano business

at said isle from the day of the embarkation in

June, 1854, of the first company of laborers, and

from other different dayssubsequently, when others

were sent out to the isle, up to the day of the

return of the last company to the United States,

January 29, 1855; and to other days previously

when others came back, including some supphes

furnished to our vessels and those supplied to the

other party on the isle; and also those given, from

motives of humanity, to the starving and dis-

‘tressed Venezuelans, before the eviction, (which

claimants scorn to charge for, even after the

wrong they have sutiered,) and those dispensed in

hospitality to visitors to the isle in vessels that

touched there, (none being sold,) estimated at an

average of thirty-five men for the term of seven

months, and at $20 per month each, $4,900, and

also the value and avails of that portion of said

property and supplies of every kind that claimants’

agent had any opportunity or was allowed to bring

away when expelled, and received and disposed of

in the United States, and the value of that undis-

posed of, mostly useless and unsaleable, estimated

ap the outside at $2, 0000in alls... sc... celiac deecee 6,900

Amount due claimants as above......:....... 14,600
Said sum of $14,600, these claimants insist should be
allowed to them as the value of the property of which they
were despoiled by the Venezuelans at the isle, and that of
which they were not allowed opportunity or time to bring
away, and which the Venezuelans used, and their losses on
the residue as above stated.
(See depositions before referred to, and other proofs, with
our attorney in Venezuela.) ‘

Ex. Doc. 10

13

193

$14,600

194 AVES ISLAND.

These claimants, in addition to all said above-stated items
of losses and damages, claim the following as further accu-
mulated or augmented damages, which have occurred since
their statement of January 29, 1855:

XVII. By reason of said disturbance by Venezuela of
their possession of said isle and guano, and their expulsion
therefrom, and the spoliation of their said property by Vene-
zuela, and the breaking up their business at said isle, and the
great injuries, losses, and damages they sustained thereby,
as aforesaid, their other affairs and business as merchants
engaged in general commerce and navigation became and
were embarrassed, and suffered great prejudice and detri-
ment; and although said Sampson & Tappan have not been
so deeply injured by such effects, and have sustained all
said losses without suspension of payment, yet the said
Philo 8. Shelton, by reason of his more restricted means,
has, in consequence of the embarrassments caused thereby,
been obliged to suspend his said business as a merchant,
stop payment, and wind up his affairs, and yield up all his
property in liquidation to his creditors, and was greatly in-
jured as to his commercial credit and means; all of which
injuries, damages, and losses of the claimants were the
direct consequences and effects of said wrongful acts of Vene-
zuela, and which it is estimated may be reasonably set down
at $50,000, and which claimants therefore charge; and they
insist that the same ought to be allowed and paid to them
by Venezuela in addition to said other charges................

(See depositions before referred to, and other proofs, with
our attorney in Venezuela.)

XVIII. By reason of the wrongful refusal of Venezuela
to adjust and settle the just demands of the claimants pre-
sented to the United States State Department January 29,
1855, and reclamation for which was forthwith made by the
United States from the government of Venezuela, which
opposed and resisted said claim, and by said act made it
necessary that the claimants should procure full proofs of
the justice of the same; and by reason, also, of the un-
reasonably protracted delay that has taken place by the
conduct of said government in the settlement of said just
demands, these claimants have been constrained to employ,
at heavy expense, legal counsel and attorneys, agents and
clerks, to give necessary aid in the prosecution thereof by
the procurement and collection of the testimony and proofs
therein. And that said expenses, to wit: in the ascertain-
ment of witnesses and their residences, and when and where
their depositions could be obtained, writing depositions and
copies, searches for procuring documentary proofs and copies,
official fees for depositions and attestations and official copies,
conduct cf correspondence and copies, legal opinions and
arguments In support of claim and in refutation of the ob-
jections made by Venezuela, printing depositions, argu-

$50,000

AVES ISLAND.

ments, and other papers; necessary journeys of P. §. Shel-
ton from Boston, and of hisattorney from Derby, Connecticut,
and from New York to Washington, to attend to such claim;
and other actual expenses in the prosecution thereof, amount
up to this date to upwards of $5,700; and they have also
been obliged to employ their said attorney to go on a voyage
from New York to Caraccas, to attend to said case, the ex-
pense whereof, and his compensation therefor—if he should
not be detained there but a few days—is estimated at $5,000
a A sO ae coe acled eat date dace nocmoaceciseseie se
(See depositions before referred to, and other proofs, with
our attorney in Venezuela.) ,
XIX. Moreover, these claimants will necessarily have to
pay commissions upon the collection of said claim when
realized; what that percentage may be is not very material,
except to the parties interested. They conceive that Vene-
zuela should. pay to them a reasonable portion of those
commissions, and ten per centum on the amount Venezuela
may admit to be due and ultimately pay as such reasonable
portion, beyond which these claimants forbear to charge.
.. Said portion of said commissions on the amount of $341,000
only, at ten per cent., is $34,100, which, deducted from
said amount, leaves $306,900. ‘Ten per cent. thereon is...
(See depositions before referred to, and other proofs,
with our attorney in Venezuela.)
XX. And these claimants further insist that, in conse-
' quence of the unreasonable and inexcusable delay of Vetie-
zuela to adjust and pay the said claim, they ought to be
allowed and paid, by Venezuela, interest on the amount
due to them, and from the 26th day of December, 1854,
when the wrong was committed, until the same be fully
paid. They learn the legal rate of interest in Venezuela
is twelve per cent. per annum. They conceive they are
entitled to claim it if such be the fact. But at present
they charge but six per cent. per annum, the legal rate in
the United States, and in the State of their residence,
Massachusetts. And they deem it entirely proper to de-
clare that it is their purpose, under favor of Divine Provi-
dence, and with the aid of the federal government of the
United States, to persist in the prosecution of their just
claim for the atonement, reparation, and indemnification
by Venezuela, for her grievous outrage upon and wrong of
them, and to exhaust all the legal and honest means and
remedies to which resort can be had, till the same is fully
satisfied and paid; and that, although further procrastina-
tion may be used, and still further delay may be had, for
_all such procrastination and delay they shall insist that
additional interest and augmented damages must be yielded
to them. At six per cent., on $341,000, said interest
amounts, if calculated from December 26, 1854, up to
26th of February, 1857, (before which time it is supposed

195

$10,700

30,690

196 AVES ISLAND.

our attorney may not reach Caraccas and procure the set-

tlement of said claim, being two years and two months, to

re sum Of 0002 0 aNeee el COUR 02s ee eer $44,330
(See depositions before referred to, and other proofs, with

our attorney in Venezuela.)

Total claim of P. 8. Shelton and Sampson & Tappan, now
OI eISCeRO N20 1 y8) Ha IR eR 5 Ht ERS G83 655,390

Mr. Eames to Mr. Marcy.

OA 30).)| Legation oF THE UNITED STATES,
Caraccas, February 28, 1857.

Str: I have the honor to acknowledge the receipt of your dispatch
No. 42, under date of 3d ultimo, which was put into my hands by Mr.
Sanford on the 21st instant, ‘and which then gave me the first informa-
tion I have ever had of the existence of your dispatch No. 37, of 14th
of August last, relative to the ‘‘Aves’’ claim, which, with important
accompanying papers, now appears to have been prepaid and forwarded
from the department at the very time when I, having nothing from
you respecting that claim later than your No. 30, of 25th April last, was

in great need and in confident expectation of a further communication |

from the department on that subject. I waited impatiently till the
9th of October last, and then I wrote and sent my No. 22, stating my
need and my expectation of further papers from the department relating
_to the ‘‘ Aves”’ claim and the grounds of that expectation.

Meantime, the department doubtless has already received my No.
26, of 5th December last, acknowledging your Nos. 39 and 40, and
stating that ‘‘your Nos. 37 and 38 are wanting, No. 36, under
date of 9th August last, being the last dispatch previously received by
me.’? This No. 36 is the dispatch in which you inform me that the
general treaty negotiated by me last spring and summer, and trans-
mitted to the department in July last, has been sent in to the Senate
for ratification. Before this date, also, the department will doubtless
have received my No. 30, of 7th January last, inclosing copy of my
note of 20th of December last to Mr. Gutierrez, continuing to urge
strongly the ‘‘Aves’’ claim, and indicating a basis of settlement. By
my No. 30, the department will see that I wrote that note to Mr.
Gutierrez solely on the basis of Nos. 22, 27, and 30 from the depart-
ment, and in some perplexity at not receiving from you any thing later
on the subject. I hope confidently that the department will consider,
as I do, that in my note to Mr. Gutierrez of 20th December last, while
one under the disadvantage of failing to receive your important

No. 37, of 14th August last, with its inclosures, I have yet, to a con-
siderable extent, if “not entirely, anticipated the views of the depart-
ment as therein set forth. If so, it is fortunate; for Mr. Sanford has
brought with him and shown to me the proof sheets of the Senate doc-
ument, containing both your missing dispatch No. 37, of 14th August

—— ee

AVES ISLAND. 197

last, and also your No. 42, of 3d January last, as communicated to the
Senate and printed, and I cannot doubt that the whole document, as
soon as published, will be forwarded at once to this government by
some ofits agents. Seeing your No. 37 in this form for the first time,
I shall regard it of course as authentic, though, in view of my previous
advices, I have no doubt that a duplicate has already been sent to me.
I trust so, because as printed, it gives no list of its accompanying
papers, and for these, so far as they may be contained in the printed
document, I am obliged to rely wholly on Mr. Sanford’s recollection.
He tells me that he feels quite sure that Wheeler’s second long depo-
sition and McCabe’s deposition were accompaniments of your No. 37,
though they appear to have been printed as accompaniments of his
printed memorial. Be this as it may be, I shall regard and use them
as fairly in the case.

During the past week, since the arrival of your No. 42, I have been
pressing the business with all possible activity in the sense of your
instruction No. 42, and expect to receive, without delay, the reply of
this government to my note of 20th December last, which I hope
reached Washington with my No. 30 to you of 7th January last, in
time to go into the Senate with the other papers, if the department
shall have deemed that course expedient.

I write this dispatch in great haste to go forward by a vessel which
sails to-day, and shall have the honor to write you further upon the
subject by the first opportunity, which will, I anticipate, occur in a few
days.

With the highest respect, 1 have the honor to be, your obedient
servant,

CHARLES EAMES.

Hon. W. L. Marcy, Secretary of Siate.

[Extract.]

Mr. Cass to Mr. Hames.

No. 49.] DEPARTMENT OF STATE,
Washington, April 1, 1857.
Srp: * * * x x x *
Your dispatches to No. 35, inclusive, have been received. The last,
announcing Mr. Sanford’s arrival with instruction numbered 42,
reached this department on the 20th ultimo. The loss of Mr. Marcy’s
No. 37 to you accounts for the delay which has been experienced in the
prosecution of the Shelton claim. It is hoped, however, that the du-
plicates which were at once forwarded to you, (February 3,) together
with the very minute statement of the items making up that claim,
transmitted with another dispatch (No. 46) to you of the same date,
will have enabled you before this to make a final and satisfactory adjust-
meut of this claim.
T am, sir, your obedient servant, LEWIS CASS.

CuHarues Hames, Esq., &c.

198 AVES ISLAND.

Mr. Hames to Mr. Cass. ote

No. 36. ] Lucation oF THE UNITED STATES,
Caraccas, April 1, 1857.

Sir: In my No. 35 I had the honor to inform the department of the
receipt, on the 21st of February last, of its No. 42 in relation to the
Aves claim, giving me, then, my first information of the existence of
its No. 37 of the 14th August last, which, however, was next day shown
to me by Mr. Sanford in the proof sheets of the Senate document in
relation to the Aves, which he had brought with him. In my No. 22
of 9th October last, which, I perceive, was not sent to the Senate, the
department was informed of receipt by me of its dispatches ‘‘to No. 36
inclusive,’ and my No. 26, of 5th December last, acknowledging Nos.
39 and 40 from the department, stated ‘‘that Nos. 37 and 38 are
wanting.”

I have now the honor to acknowledge the receipt on the 17th ultimo

from the department of No. 43, of 6th January, and Nos. 47 and 48,
both of 24th February. But none of these three numbers relate to the
Aves question, and the three intermediate Nos. 44, 45, and 46, have
not been received, and are probably lost, because since the receipt of
Nos. 43, 47, and 48, other vessels have arrived here, both from Phila-
delphia and New York, bringing me other correspondence, but nothing
from the department. I presume that these lost Nos. 44, 45, and 46,

contain important matter relating to the Aves claim, as | am advised -

by Mr. Sanford that he has reason to believe that such papers have
been forwarded to me from the department since the date of its No. 42,
which is the latest I have on the subject.

The department will thus perceive that of its twelve dispatches for-
warded to me since the 9th of August last, the date of its No. 36, I
have failed to receive five, namely: Nos. 37, 38, 44, 45, and 46; all of
which are still wanting, and of which others, as well as No. 37, doubt-
less relate to the Aves. Considering the urgent attitude of this
question, and that the published correspondence in regard to it may
have already reached this government, the department will, I am sure,
fully appreciate the extraordinary and, perhaps, unprecedented diffi-
culty and embarrassment to which this series of unfortunate casualties
has subjected this legation in that business.

I deem it proper to add that I am entirely confident that these lost
dispatches never reached Laguayra, because by reference to the ‘‘mem-
orandum’’ accompanying my contingent account, and transmitted
with my No. 25, the department will perceive the effectual precautions
which, in order to avoid the risk and delay of the mail service here, I

took more than two years ago, and have ever since maintained, to have
all my dispatches, with a list of them, transmitted to me immediately
upon their arrival at Laguayra through our consulate there, and by a
special messenger. This duty has been performed by our consul with
exact attention. As the dispatches for this legation have ever since
its establishment been transmited through the commercial house of
Messrs. Dallett Brothers, of Philadelphia, and as its records show that
no dispatch has been lost prior to No. 37 to me from the department,

a

ee

AVES ISLAND. 199

my conjecture is that by some untoward accident these lost dispatches
have failed to reach the counting-house of those gentlemen. I mention
these details in view of the probability that the department may deem
it desirable to make investigation as to the cause of the loss of nearly
half its dispatches forwarded to this legation in a somewhat critical
period of its business, during the last eight months, no such loss in
any case here having occurred before.

With these preliminary observations, deemed proper under the
circumstances, and referring to my No. 30 under date of 7th January
last, which transmitted to the department my note of 20th December
last to the Minister of Foreign Relations of this Government, continuing
to urge the Aves claim, and indicating a basis of settlement, I have
the honor now to transmit, in copy and translation, (1 and 2,) his reply,
dated 28th February and received on the 3d of March, to my note of
20th December. I transmit, also, my answer to that reply, (8,) under,
date of 31st ultimo, which in view of the instruction, (No. 42,) from
the department, I have prepared and intended as closing on the part
of the government of the United States the discussion of the general
question of the obligatien of the government of Venezuela to make due
reparation to those claimants.

By reference to the note of Mr. Gutierrez the department will per-
ceive that, as anticipated in my note of 20th December, this government
does not undertake to dispute the main facts of the case; but that it
adheres substantially to the positions announced in my dispatch (No.
10) to the department under date of 26th April, 1855, as constituting
the reply of this government to the reclamation as first presented by
me in execution of the instruction (No. 12) from the department, then
recently received.

The first of these, as stated in the note of Mr. Gutierrez, is that the
right of Venezuela to the Aves was recognized and admitted by the
agents of the claimants in their so-called ‘‘agreement’’ with Dias, of
the 13th of December, 1854, which was referred by me to the depart-
ment, ‘“‘as new matter in the case,’’ in my No. 10 of 26th April, 1855.
In that, (No. 10,) I stated to the department that, in my judgment,
that paper was regarded by this government as its main defense in the
case. The observations on that subject in my answer to Mr, Gutierrez,
I regard, however, as disposing effectually of that defense.

‘The extraordinary and inadmissible pretension indicated, though
not fully alleged by this government in the note of Mr. Gutierrez of a
tight to molest citizens of the United States in actual occupancy in
their private capacity of a derelict island, has been repelled by me in
my reply in terms intended to be decorous, but, I trust, sufficiently
decided to meet the approval of the department.

The allegation of Mr. Gutierrez in bar of this claim of the negotia-
tion to protect the rights of the assignees of the Wallace contract in
the other guano islands, except the Aves, accompanied as that allega-
- tion necessarily was by a total suppression of the fact of the complete
and effectual official reservation and exception by me in that negotia-
tion of the Aves, including all the rights and claims of the present
claimants therein, has received in my note refutation and exposure,

200 AVES ISLAND.

which, I hope, the department will consider both conclusive and
exemplary.

The department will perceive that Mr. Gutierrez in his note has
ventured to allege title to the Aves prior to 1854, in Venezuela, as the
successor of Spain. The pretension is utterly futile; and, as I have
from the first expressed myself emphatically in that sense, both to the
department and to this government, I have deemed it proper in my
reply to go thoroughly into that question, and put it at once beyond
the necessity of any further discussion. The department will perceive
that the maps and geographical work of Codazzi, the Venezuelan
commissioner, as presented by me, are wholly conclusive against this
government on the point; and it is in this view that I have demon-
strated so much in detail their entirely official and authoritative
character. I shall, if possible by the next opportunity, send to the
department a copy of these maps, with the explanatory volume, espe-
cially as they are nearly out of print and hereafter may not be easily |
procured.

With the highest respect and consideration, I have the honor to be
your obedient servant,

CHARLES EAMUS.

Hon. Lewis Cass,

Secretary of State.

REPUBLIC OF VENEZUELA,
Caraccas, February 27, 1857.

The undersigned, Secretary of State in the Department of Foreign
Relations, has had the honor to submit to the executive power the note
directed to him by the honorable minister resident of the United States, .
under date of 20th December last, and in conformity with the orders
of his excellency the President, he proceeds to express the opinion
which the government has formed on the subject of that dispatch, in
which three forms of indemnification are demanded in favor of the
Americans who are said to have-occupied the guano Island of Aves,
and to have been expelled from it by the Venezuelan forces.

On the occasions in which Mr. Eames has conferred upon this sub-
ject with the predecessor of the undersigned, and with himself, they
have both expressed to him the views of the government in regard to
that reclamation, to which no answer has been given before now in
writing, both because up to the present time it has only been presented,
and because when reference to it has been made by the legation in its
dispatches, it has been only in an incidental manner in connection with
the petition of Mr. Pickrill and the question of Venezuela with Hol-
land. Mr. Hames repeats in his note aforesaid, in which he for the
first time formalizes the demand that he deemed it necessary to consult
his government as to the convention entered into with Commander
Dias, the force of which induced him to delay the presentment of the
subject.

Mr. Eames supposes that the question becomes free of this difficulty
by reason of the explanations given by the claimants as to the validity

AVES ISLAND. 201

of that document; but the government cannot share in an opinion
founded simply on the assertion of persons interested in causing their
assertion to be believed. Neither by the elements in their power, nor
by their number compared with that of the Venezuelans, nor by the
acts performed after their departure, nor by any of the other circum-
stances of the occurrence can any one assert that the Americans were
compelled to sign a document which they did not understand. Had
they opposed any resistance, had they protested on the spot or after-
wards against the violence which they allege was done them, or made
reclamation immediately against its effects, then their assertion would
deserve some credit ; but it seems extraordinary and not justified by
any precedent that an attempt should be made to invalidate an act by
the very party that granted it, upon his mere allegation that it was
the result of violence and not voluntary. If such pretension were ad-
“missible, it would authorize every one who should repent of a solemn
‘engagement contracted to free himself from it without other difficulty
than by simply affirming that he acted under duress and not of free
will. That the legation is certainly aware that the laws of every
country consider valid a contract which, on its face, appears to have
been concluded voluntarily, and the very grave proofs required to an-
nul it for want of consent, both in respect to the facts of violence and
the sort of fear that they may impress upon the mind. Nevertheless
the tardy depositions which the legation has transmitted to this depart-
ment, in mere copies, are all the proof with which it seeks to destroy
the validity of a document which must be presumed legitimate and
obligatory, as long as violence is not proved in the most incontroverti-
ble manner. The circumstance is remarkable that, of the two persons
who are said to have signed it, and to whom the other witnesses attri-
bute ignorance of the Spanish language, one has not deposed, and the
other who has deposed does not allege that objection, nor does he allege
that the convention contained nothing in which the title of Venezuela
is recognized ; neither does he assert that he was impelled to act by
any other cause than the desire of avoiding outrage. ‘The government
submits to the consideration of Mr. Eames the appreciation of this
fact, which presents the doer of an act less informed of its motives
than others who took no part in it.

_ But supposing that the Americans had been compelled to acknowl-
edge the right of Venezuela, which is persistently denied, still they
could never complain of their expulsion except after demonstrating
that it was lawful for them to land upon the island and take away
therefrom the guano it contained: The island belonged before 1854
to the republic, as the successor of Spain, its discoverer, and to whom
various authorities attribute it, the circumstance of its not having been
inhabited being of no consequence, since Mr. Eames himself asserts
that it cannot be so; and moreover, nearly all the other islands per-
taining to the republic are in the same state. The Americans went to
the Aves, as they had gone to the Monks and other national islands,
from which they have clandestinely shipped cargoes of guano, for the
value of which the government of the United States ought to indem-
nify Venezuela, without being authorized by the Cabinet of Washing-
ton to proceed in that manner, and without taking care to investigate

202 AVES ISLAND.

in the Department of State, as has been done in other similar cases,
whether they had a right to the usufruct of those places.

The Island of Aves is not derelict, nor is it conceived how Mr.
Eames can assert it to be so, when he lays it down in the same para-
graph that it has never been reduced to possession nor has been under
the jurisdiction of any power. If no one has ever occupied it at any
time, who abandoned it, leaving it voluntarily as lost? But how can
a thing be reputed as abandoned, concerning which two nations have
been for a long time in controversy? The assertion that characterizes
the citizens of the United States as discoverers of the Aves is entirely
unfounded ; and the guano thereon being the accession of the soil, it
pertains to the owner of the land, not to those that discovered that
substance. The United States did not commission the Americans in
question to occupy the Island of Aves, and to take possession of it in
their name. Thence it is clear that they could not hoist thereupon the

flag of their country, nor assume the authority to say that they acted |

in its name, as Wheeler asserts that he informed the captain of the
English ship Devastation. Reduced, therefore, to the class of mere
private persons, they did not possess the faculty of acquiring as inhe-
rent in nations ; they did not possess the right to compete with any
nation, nor consider as occupied an island, the posseession of which
they would in vain struggle to maintain by defending it against the
States that would desire to appropriate it.
If the island of Aves was a thing common to all, of which, there-

fore, all could avail themselves, it is not to be inferred from this fact —

that any obstacle can be alleged to its occupation by Venezuela or any
other nation; and this act once executed, it would from that time have
entered into the special dominion of the occupant, ceasing thereby to
be common property. Every one would then be compelled to respect
a right that each one might have appropriated, and of which no one
before sought to avail himself exclusively. Will the United States
maintain that an object so capable of an appropriation as an island,
could ever be reduced to private dominion on the ground that private
individuals of different nations had enjoyed the use of it from time to
time? Undoubtedly not. Then they have no doubt in regard to the
eminent domain of Venezuela in the Aves, as Mr. Eames has often
said to the undersigned, and they only dispute the private property of
the guano found on that spot. So certain is this, that the federal
government being perhaps ignorant in December, 1854, as probably
might have been the case with Mr. Eames, even if he had been at that
time in Caraccas, that there existed any guano at all on the Aves, and
still more that countrymen of his were in the enjoyment of it, not only
did not dispute the validity of the Wallace contract, but even made
efforts to renew it when annulled by the executive power, and has
since protected with great zeal the contractors of guano existing on the
Aves and other islands pertaining to Venezuela. To suppose that
Venezuela had the domain and the dominion over the Aves, necessary
to enable it to dispose freely and for‘its own benefit, as Mr. Hames
says, of the only substance that makes the island valuable, and to
assert at the same time that the Americans preserve their right to that
substance, implies a contradiction difficult to understand. If they are

—

AVES ISLAND. " 208

still the proprietors of the guano already taken away and of the that
remaining on the island; if they are to be indemnified for the loss,
caused by their expulsion, of the profits which they would have gained
from the guano business since December, 1854, up to the settlement of
their reclamation; if they have a right to demand that the remainder
of that substance be delivered to them, or that they be satisfactorily
compensated for their right to it, the result then evidently would be,
that Venezuela had no authority to maintain the assignees of the Wal-
lace contract in the enjoyment of the rights that it conferred upon
them, nor to conclude a new one with them, nor to administer the
island, nor to sell its products, since all these acts are the legitimate
and exclusive effects of dominion which Venezuela could have refused,
ag was recognized in the act of soliciting her to perform them. After
having thus clearly agreed on the point of the sovereignty of Venez-
uela over the Aves, the United States demand, without right, that she
should disavow the legality of her proceedings, and that she should
destroy her own title! Upon such a supposition, what would the
republic have gained? To make herself the officious and gratuitous
protector of the Americans; to defend the place for them from the pre-
tensions of other nations; to keep for them, and, at great expense, their
property; to employ in their behalf the citizens, arms, and national
ships ; to save them from the contingencies and risks of their posses-
sion, and ultimately to return it to them, or what is just the same, to
pay them the reclamations made through their legation under three
heads, in order that they should. have all the advantages resulting
from the dominion of the island, while all the charges of the same
devolving upon the republic. These are consequences which ought to
have great weight with the justice of the Cabinet of Washington, and
make it abstain from protecting the cause which lead to them, espe-
cially in view of the consideration that the profits of the labor of the
guano business on the Aves have already been obtained by other Ame-
ricans whom their government so earnestly protected in obtaining for
them the continuance of that same contract to which, as is now indi-
cated, it would have been opposed either by that government or its
legation, if it had been known when granted, and which could not
have appeared to them so objectionable. To what is then reduced the
indisputable title of Venezuela on an uninhabited and barren place,
without property, in fact without any other value except that derived
from the guano, if this substance belongs to those who now claim it?
Thus the consequence of its occupation would not have been limited to
the portion of that product which they really took off and shipped,
being all to which, in the most favorable case, they could pretend ;
. but it would extend to all which they had no capacity to occupy or
defend, notwithstanding their having ceased to take care of and pre-
serve it, without which acts property in things cannot be maintained.

But, moreover, the United States maintain that the island was
common, so that the use made of it by some parties did not exclude the
right of others, and this is proved by the fact of the existence among
the documents of a declaration relative not to those entitled the first
occupants of the island, but to others who, at the end of January,
1855, sailed from New York, bound to that island in quest of guano,

SN

204 AVES ISLAND.

and did not obtain it by reason of its not having been consented to by
the Venezuelan forces there, in consequence of which they protested
on their return to that port. Then, if such are the views of that gov-
ernment, how does it pretend that not the private citizens of Venez-
uela, but the State itself, had no right to compete with its citizens for
a share of what was common to all, or that it had no right to take
possession of it for its own private benefit, when it was not subject to
the incapacity of those few private persons whose occupancy was not

accompanied by all the circumstances necessary to constitute a source:

of property?

The government confidently hopes that the preceding observations
may be considered as justifying its grave objections to the admission
of a reclamation, the formal discussion of which commences now when
the legation has received the documents and other proofs that it ex-
pected, in order to present it, and cannot, therefore, have acquired
such a degree of urgency as a subject would have when examined in
all lights in which no difficulties and no necessity of considering them
had been presented, and in which, from the first, all identity of opinion
in both the parties to it had not failed to appear. ;

The undersigned renews to the Hon. Mr. Hames the assurance of his
high consideration.

JACINTO GUTIERREZ.

Hon. Caaries HAmss,

Minister Resident of the United States.

LEGATION OF- THE Unitep STATES,
Caraccas, March 31, 1857.

Sm: The undersigned minister resident of the United States has the
honor to acknowledge the note of the honorable Minister of Foreign
Relations of Venezuela, under date of 27th ultimo, in reply to that of
the 20th December last, in which the undersigned continued to press
upon the attention of the government of Venezuela the urgent im-
portance of an immediate adjustment of the very grave question which
has been pending between the two governments for nearly two years
in relation to the expulsion of certain citizens of the United States
from the guano island of Aves, in December, 1854, by the armed
public force of the Venezuelan government.

The government of the United States has from the first presented

this question through the undersigned to the government of Vene- —

zaela in the form of a demand for full indemnification to these its
citizens for all the loss, damage, and injury resulting to them from the
grave and wholly unjustifiable outrage which it considers to have been

perpetrated upon them in the act of their expulsion, in the spoliation:

of their property which then took place, and in, their. continued ex-
clusion, to their great loss and injury, by Venezuela from the peace-
able possession and usufruct of the guano on that island; and it was
the principal object of the undersigned, in his note of the 20th of
December last, having in view the maintenance of friendly relations

SS

AVES ISLAND. 205

between the two governments, first, to impress upon the government
of Venezuela his clear conviction that little then remained to be done
in the case but to fix justly the terms of that indemnification, and,
secondly, to indicate and explain a basis of arrangement upon which,
in his judgment, the satisfaction so imperatively demanded by all the
character and circumstances of the case, and by the attitude of the two
governments in respect to it, might be properly and promptly made.

Mature consideration of the note of the honorable Minister of Foreign
Relations, with careful reference both to what it alleges and to what
it omits to allege, has fully confirmed the undersigned in the views
which he then had the honor to urge, and he does not doubt that such
will also be its effect upon his government. From the whole tenor of
that note it sufficiently appears that the government of Venezuela does
not dispute that these claimants, by their agents, were the first dis-
coverers of the guano on the Island of Aves, nor that, at large ex-
pense, they soon after, in the summer of 1854, took and maintained
for several months peaceable and undisturbed possession of such
guano; nor that they fully intended and were fully prepared to retain
such peaceable possession till the whole valuable supply of that article
there should be by them exhausted; nor that they were forcibly ex-
pelled and ousted from such possession in December of that year by
the Venezuelan government, acting through its public armed force;
nor that Venezuela has since continued to occupy and hoid the island
and the guano on it for its own profit, against these claimants, by
such armed force; nor that great losses and damages, both immediate
and consequential, have resulted to them from that expulsion and
adverse possession. Of all these facts (and they are the main facts
upon which the government of the United States has heretofore de-
manded and now demands full indemnification to these claimants) the
very elaborate note of the Hon. Mr. Gutierrez, as it alleges no denial,
must evidently be taken as confession.

It is, moreover, observable that the Hon. Mr. Gutierrez nowhere in
his note alleges, in clear and express terms, that the expulsion of these
claimants, as it took place, was a lawful and justifiable act, nor does
he anywhere expressly and absolutely deny the obligation of the
Venezuelan government to make reparation to them for that act.

The undersigned, in his note of 20th of December, distinctly
alleged that ‘‘if these claimants were, as against Venezuela, lawfully
in possession of the island where Venezuela found them, then surely
they may rightfully claim full reparation for being driven away by her
puplic force. frag

This proposition, unless it be confuted, carries along with it, inev-
itably and manifestly, the justice and validity of this claim for indemni-
fication; yet the Hon. Mr. Gutierrez has nowhere expressly denied
either the fact or the inference which it contains. He has nowhere
asserted that these claimants were in fact, as against Venezuela,
unlawfully upon the island when Venezuela found them. He has
neither cited nor alluded to any law, ordinance, decree, or regulation
of the Venezuelan government, which they infringed by going there
and working there and remaining in possession there. He has wholly

SS ee a ee et a tee ree -

—— ee —_—_—_—_—-

206 AVES ISLAND.

failed even to aver distinctly that they committed by those proceedings
any violation of the established territorial sovereignty of Venezuela.

The absence of these averments, in a note purporting to reply to the
precise and stringent proposition of the undersigned above cited, is of
course confession. It is confession that these claimants, from June to
December, were not as against Venezuela law-breakers nor trespassers,
but were lawfully engaged in lawful occupation. Indeed, such con-
fession by the government of Venezuela could with no show of reason
have been withheld, because the fact is of universal notoriety that these
claimants in landing upon the ‘‘ Aves’’ in June, 1854, and proceeding
to make the best use they could of that desert island, did no more than
all men had been free to do and had done, whenever they saw fit, from
a period long antecedent to the existence of the republic of Venezuela,
and through the whole period of that existence, without any sort of
hinderance, molestation, prohibition, or remonstrance by any govern-
ment, and least of all, by the government of Venezuela.

But the Hon. Mr. Gutierrez, apparently convinced of the impossi- -
bility of denying the lability of his government to make full reparation
to these claimants upon the assumption that they were lawfully upon
the ‘‘ Aves,’’ when Venezuela found them and expelled them, proceeds
in this connection to state that these claimants ‘‘can never complain
of their expulsion unless they demonstrate that it was lawful for them
to land upon the island and take away the guano found onit.’’ This
observation of the Hon. Mr. Gutierrez has been read by the under-
signed, and will be read by his government with regret and astonish-
ment. In the prosecution, as they consider, and as their government ~
maintains, of a legitimate commercial industry these claimants took
peaceable possession of an article of value which they had first discoy-
ered on a desert and derelict island, near, indeed, to the possessions of
several great powers, but understood to be not then claimed by any of
them, and separated by several hundred miles of open sea from the
uttermost known limits of Venezuelan jurisdiction, as then existing or
pretended in that direction, and upon which, up to that time, no citi-
zen of Venezuela in any capacity, public or private, is proved or even
asserted to have ever set his foot.

Remaining in this peaceable occupation for several months, these
claimants were visited by ships-of-war of at least four of the great
powers having possessions in the immediate vicinity, no one of which
manifested the least right or disposition to disturb them, and some of
which expressly confirmed their right to remain undisturbed. In this
state of facts the government of Venezuela, without any previous public
allegation of title to this island, without the slighest complaint or
remonstrance against its occupation by these claimants, and without
any notice to them or to their government of its hostile purpose, organ-
ized and sent forth an armed expedition to pass far beyond the uttermost
limits of Venezuelan jurisdiction, to traverse four degrees of latitude
on the open sea, to seek and find them at’their peaceful work, to men-
ance them, and finally to eject them from the island at the point of the
bayonet; and then, with depredation upon their property, to drive
away there ships from before the mouths of her cannon. All this was
perpetrated; and now, when the government of the United States

AVES ISLAND. 207

demands from the government of Venezuela full indemnification to
their claimants for her act in thus treating them as law-breakers, tres-
passers, and criminals, the unexampled and inexplicable answer of the
honorable Minister of Foreign Relations, as understood by the under-
signed, appears in substance to be: ‘‘Let them first prove that they
are not law-breakers, trespassers, and criminals; till they do this, they
have no right even to complain for being treated as such.’’ Solicitous
to receive with all proper consideration every observation offered by the
honorable Minister of Foreign Relations in behalf of his government,
and therefore avoiding upon this point all unfit warmth of expression,
the undersigned contents himself with declaring that such answer to
this reclamation is, in his judgment, totally inadmissible; and that he
is by no means prepared to assure the government of Venezuela that
the government of the United States, in justice to itself and to its citi-
zens, must not regard such answer, if insisted on, as constituting
aggravation of the original injury.

By every principle of justice, and by the law of every civilized nation,
the burden of proof and justification is upon the aggressor, and not
upon the victim of his aggression. It is for the assailant to justify his
_ assault. It is for the ejector to justify, in law, his violent act of eject-
ment. Not by the undersigned, not even by his government alone,
but by the voice of the venerable code of public law, by the collective
conscience of civilization as embodied in legal institutions everywhere,
is it proclaimed to Venezuela that, by reason of the perpetration of this
deed of violence by her public force upon peaceable and law-abiding
men, she must stand in the attitude of a wrong-doer until she either
makes due atonement for the act or presents and proves for it affirma-
tively a clear and complete justification.

But, if all this were otherwise, and if the burden of proof were in
this case not upon the aggressor, but upon the sufferers of the aggres-

sion, still it is wholly manifest that Venezuela, by her own act, has .

precluded herself from alleging that these claimants were, as against
her, unlawfully upon the island. Venezuela has produced, and the
Hon. Mr. Gutierrez in his note seems to rely upon the so-called ‘‘agree-
ment’’ between Commander Dias and these men, as her justification for
driving them away. That “‘agreement,’’ in the judgment of the United
States, is wholly invalid and void, if not for other reasons, then, at
least, for duly proved force and fraud. Venezuela denies that the force
and fraud are duly proved, insists upon its validity, and terms it a
“‘convention.’’ But, if these claimants were not, as against Venezuela,
lawfully at work on the island, then they were trespassers and law-
breakers, engaged in depredation upon Venezuelan property, and in
criminal violation of Venezuelan law and territorial sovereignty. Now,
assuredly the enlightened government of Venezuela will never acknowl-
edge that, acting through high official functionaries in command of
her public force, she makes ‘‘conventions’’ with characters of this
. description found by her in flagrante delicto. Yet this is just what she
must not only acknowledge, but maintain, unless she now admits that
these men, when she found and ejected them, were not, as against her,
law-breakers, trespassers, and depredators, but were, on the contrary,
lawfully engaged in lawful occupation.

208 AVES ISLAND.

Proceeding, then, upon the conclusion that Venezuela in presenting
the alleged ‘‘agreement’’ or ‘‘convention,’’ as entered into by her
with these claimants and attempting to sustain its validity, has pre-
cluded herself from maintaining that they were, as against her, law-
breakers, whom she might lawfully expel by force. The undersigned
will now, in reply to the observations of the Hon. Mr. Gutierrez on this
point, establish beyond all doubt the total invalidity of that alleged
‘‘agreement’’ as against these claimants. That the positive and direct
proof of force and fraud in extorting the signatures to that paper,
deemed upon very mature and careful consideration by the government
of the United States fully sufficient to invalidate and avoid it, should,
when presented to the government of Venezuela, be pronounced insuffi-
cient is matter of regret and surprise.

The purpose of the honorable minister’s observation, that the depo-
sitions duly specified and transmitted by the undersigned in his note
of the 20th of December last were ‘‘mere copies,’’ is not distinctly
perceived. It is impossible for the undersigned to doubt that copies of ©
depositions transmitted in due course of business from the Department
of State at Washington to this legation, and then by this legation duly
transmitted in copy to the government of Venezuela, will have with |
that government precisely the force, neither more nor less, of the
originals, of which they purport to be copies. The phrase “‘mere
copies,’’ applied to such papers, is inappropriate. They are more than
‘‘mere copies,’’ they are authenticated copies.

The Hon. Mr. Gutierrez alleges that the deponents are interested in
this claim, and intimates that they are therefore incompetent witnesses.
This is not an exact statement nor a correct inference. The deponents
are the salaried agents of these claimants, having no proved interest
whatever in the claim, and as such they form a class of witnesses recog-
nized as fully competent by the tribunals of all countries.

The Hon. Mr. Gutierrez observes that if the agents of these claim-
ants had resisted or protested at the time or made immediate reclama-
tion of their property, then their assertion that they signed the alleged
‘‘agreement’’ upon compulsion would be credible. They did all this;
they did reluct and resist, and signed at last not only under a mistake,
but avowedly and only to avoid violence and bloodshed at the hands of
the public force of a government. They complained at the moment of
the whole proceeding, including the seizure and sacrifice of their prop-
erty, and made reclamation for full reparation without delay before
their government, and that reclamation was at once presented clearly
and strongly by the undersigned, in pursuance of his instructions, to
the government of Venezuela. So prompt, indeed, was all this action
of reclamation, that it outran all knowledge by the undersigned and
by his government of the alleged ‘‘agreement,’’ and caused that paper,
when authentically made known by the Venezuelan government, to
appear then before the undersigned as new matter in the case, and as
such, and only as such, fit, on its face, to be referred to his govern-
ment for explanation and consideration.

But on this point of force and fraud in that alleged ‘‘agreement’’
the Hon. Mr. Gutierrez principally complains of the absence of the
testimony of one of its signers. ‘This cause of complaint the under-

AVES ISLAND. 209

signed is now fortunately enabled in the most effectual manner to
remove. He presents with this note a long extract from the deposi-
tion of Captain N. P. Gibbs, one of the signers of the alleged ‘“‘agree-
ment,’’ and invokes to it the especial attention of the government of
Venezuela. Its minuteness of detail, its frank admissions, and its
temperate yet firm tone, all stamp it as a trustworthy paper, while its
clearness of statement shows it plainly to be the testimony of an in-
telligent witness. The Hon. Mr. Gutierrez will observe that the
witness swears distinctly that the so-called ‘‘agreement’’ was fraudu-
lently interpreted to him; that he would not have signed ‘‘anything’’
except to avoid violence and bloodshed; that he yielded only to the
command and force of a government recognized by his own; and that
had the contents of the paper been truly interpreted to him he would
have refused his signature to at it all hazards.

Now, the Hon. Mr. Gutierrez will also observe that in the testimony
of these witnesses there is no possible chance of mistake. Two of them,
chief actors in the transaction, swear positively to their own motives
in signing the paper; the others swear to what they personally knew
of those motives as eye and ear witnesses of the transaction, and as
participants in it by consultation. There being no possibility of mis-
take on their part, the government of Venezuela must either receive
their testimony on this point as true, or it must take the position that
they all willfully commit wholesale perjury. This last position the
government of Venezuela assuredly will never assume; for the pro-
fessed purpose of the Venezuelan expedition was to occupy the island
and eject these men from its possession. ‘That possession they had law-
fully, in their judgment, and in the judgment of their government, estab>
lished at great expense and were sedulously and profitably maintaining.
It is against all reason—it is against every principle of human nature,
to suppose that they could possibly be so ejected from such a possession
without the employment of force or fraud, or both. The Venezuelan
expedition was provided with guns and bayonets, and powder and ball,
and does not appear to have been provided with any other arguments
to accomplish its purpose. Here were the means of force. The com-
mander of the expedition understood the Spanish language, which one
of the two chief agents did not understand at all, and the other, if at
all, very imperfectly. Here was aready method of fraud. The paper
was drawn and signed only in Spanish, and not, as would have been
natural, both in English and Spanish. Here was a badge of fraud.
The paper now urged by Venezuela as an ‘‘agreement”’ or ‘‘conven-
tion’’ was presented to these agents as a ‘‘permit.’’ Here was an
overt act of fraud. The purpose of the expedition plainly requiring
for its accomplishment the use of the means of force or fraud, which
were at hand, was accomplished. These witnesses swear that force
and fraud were used for its accomplishment. Their collective solemn
oaths, therefore, only confirm and establish the strongest possible ante-
‘cedent probability. Such testimony to such fact must command irre-
sistible credence.

It is obvious to say that these facts were not known when this paper
was first presented to the undersigned; that if they had been known.

Ex. Doc. 10——14 f

210 AVES ISLAND.

it would never have been even referred by him to his government, and
that if, in that case it had been so referred, the rejection of it as wholly
void against these claimants must have been alike summary and con-
clusive.

As against these claimants, therefore, this alleged ‘‘agreement’’ is
null and of no effect; but the force and fraud which as against them.

invalidate and avoid it were not theirs, and therefore they and their
government have a right to claim that the ‘‘agreement’’ being now
insisted on by Venezuela shall as against the Venezuelan government
remain in the case to establish— .

First. That through its authorities that government even,in the act
of expelling them from the island acknowledged them to be not law-
breakers, but, on the contrary, of a character and in a position fit to
be negotiated with; and, secondly, to establish as against these author-
ities that in the negotiation forming a part of the res gesta of their
expulsion, not force only, but fraud also was employed against them,
and to their injury.

Another consideration in this connection claims from the government
of Venezuela thoughtful attention. The signature of this paper by
the agents of these claimants, thus extorted, alone appears to have
prevented conflict, bloodshed, and, in the heated passion and stern retri-
bution of the hour, but too probable slaughter. That a paper prevent-
ing such dire and bloody work and its ulterior consequences, and sworn
to have been signed by these men only in that purpose, should be in-
sisted on in bar of this claim for just indemnification is, in the judg-
ment of the undersigned, most extraordinary and unjustifiable.

The Hon. Mr. Gutierrez, making a distinction between things ‘‘com-
mon’’ and things ‘‘derelict,’’ observes that ‘‘the Island of Aves is
not a derelict thing, nor can it be conceived how Mr. Hames asserts it
to be so, when, in the same paragraph, he states that it has never been
reduced to possession, nor under the jurisdiction of any power.’’ The
undersigned would regret that the government of Venezuela should
continue under the totally erroneous impression that the government
of the United States has presented or urged this claim in any other
than precise and appropriate terms. The Hon. Mr. Gutierrez is, there-
fore, in reply informed that, in the judgment of the United States,
this Island of Aves having long been known but not reduced to pos-
session nor embraced within any jurisdiction, was in the strict legal
and lexicographical sense of that term derelict in the month of June,
1854, when the guano upon it was lawfully taken into actual posses-
sion by these claimants who had discovered it, and whose right to
retain such possession undisturbed was good against the whole world,
when they were, to their great injury, wrongfully and unlawfully
driven away by Venezuela.

But in this connéction the note of the Hon. Mr. Gutierrez presents
other observations of far more extended reach, and which require direct
response. It alleges that as the government of the United States gave
no commission to these claimants to occupy the island ‘‘in its name, ’’
they, as ‘‘ mere private persons,’’ ‘‘had not the capacity of acquisition
which nations have, and could not compete with any nation, nor con-
sider as occupied an island whose possession they had not force to main-

ct REE OPE Aiea ns,

AVES ISLAND. 211

tain by defending it against the government which might desire to
appropriate it to themselves.’’ This observation and some of those
apparently in a somewhat similar sense which follow it, in the note of
the Hon. Mr. Gutierrez, seem to be rather vaguely expressed, and the
undersigned is not sure that they are exactly understood. But in his
opinion they may be considered as implying, or at least intimating,
though they do not in terms assert, the doctrine that, when citizens of

the United States, in their personal capacity, as first discoverers of the

guano thereon, are in the actual occupancy and use of an island pre-
viously known to exist, but at the time of its occupation by such citi-
zens derelict and not embraced within the sovereignty or jurisdiction
of Venezuela, then the government of Venezuela has the right, and
may, in its discretion, lawfully and justifiably exercise the right to
overpower and expel such occupants by its public force, and appropriate
to itself the island and the guano existing thereon. Such a doctrine,
opposed alike to private right and public law, and carrying on its face
its own condemnation, cannot be made by the undersigned in this case
a subject of discussion. Should such doctrine be formally advanced
by the government of Venezuela in bar of this claim, the duty of the
undersigned will be limited to the announcement of that fact to his
government. In view of the settled policy of the government of the
United States as established in ancient usage, recognized by other
powers, and reaffirmed by recent legislation, the maintenance of such
doctrine by any power, and its persistent application against citizens
of the United States, are not perceived to be compatible with the pres-
ervation of peaceful relations. The undersigned trusts, therefore, that
the observations referred to have not, in fact, the full scope and ‘inten-
tion which some of the terms in which they are expressed may be con-
sidered to contemplate. Yet if these observations do not imply and
embrace substantially the doctrine referred to, then their bearing
against this claim is not to be perceived because they certainly proceed
upon the assumption that this island was not Venezuelan at the time
when Venezuela by force expelled these claimants from it and reduced
it to her own armed occupation.

The Hon. Mr. Gutierrez observes that: ‘‘They (the United States,)
have no doubt as to the eminent dominion of Venezuela in the ‘ Aves,’
as Mr. Kames has repeatedly stated to the undersigned, and only dis-
pute the private property in the guano found thereon.’’ This state-
ment, in order to be exact, requires material modification. If it be
intended to assert that the undersigned has repeatedly stated that
Venezuela, since her unlawful expulsion of these claimants, has main-
tained an armed occupation of the Aves adverse to the rights, and so
excluded them from the use of their right of property in the guano
thereon, then the statement is accurate ; and the fact stated constitutes
an important element in this their claim for redress. But if it be in-
tended to assert that either the government of the United States or the
_ undersigned has ever admitted that Venezuela has now, or ever did
have, the rightful eminent domain of the Aves, then the statement is
wholly inaccurate. No such admission has ever been made, and there
is, in the judgment of the undersigned, no probability that it ever wil
be made. It may be that the forcible expulsion of these claimants,

2h2 AVES ISLAND,

and the subsequent armed occupation of the island are regarded by

the Venezuelan government as constituting in Venezuela, during the -

continuance of such occupation, an eminent domain there de facto.
Such an assumption on her part would appear to be indicated by her
course in administering the island on her own responsibility, and for
her own advantage. But respecting the correctness of this assump-
tion, neither the undersigned nor his government has seen occasion to
express to Venezuela any opinion, for the plain reason that such emi-
nent domain de facto, if it exist at all, can obviously exist only as
subject to all the responsibilities attaching to the mode of its acquisi-
tion and maintenance, and as subject especially to the previous and
paramount right of these claimants to full indemnification for the out-
rage perpetrated on them in their expulsion and exclusion. This con-
sideration effectually disposes of the several observations in which the
honorable minister of foreign relations has set forth the inconvenience
which must result to Venezuela, upon the supposition that those claim-
ants are entitled to the full indemnification now demanded. Incon-
veniences, more or less grave, always flow from the perpetration of
wrongful acts. The expulsion of these claimants and their subsequent
exclusion by Venezuela from the enjoyment of their rights on the
Aves were, in the judgment of the United States, unquestionably
wrongful acts. It would be a strange doctrine indeed which would
withhold from peaceable and law-abiding men, thus gravely inferred,
a just indemnification on the ground of inconveniences thereby result-
ing to the perpetrator of the injury.

The Hon. Mr. Gutierrez has in his note referred to the contract

concluded in December, 1854, by the Venezuelan government with
Mr. Wallace, to the alleged course of the government of the United
States in sustaining the validity of that contract, and to the negotia-
tion which, after the annulment of that contract by Venezuela, took
place with the aid of the undersigned under his instructions, in order
to protect the rights and interests vested by that contract in the sey-
eral guano islands regarded as rightfully belonging to Venezuela, and
of course other than the Aves which was not so regarded. In this
series of occurrences, as referred to in his note, the honorable minister
of foreign relations appears to allege or intimate the existence of an
obstacle to the admission of this claim for indemnification. But in
order to prevent any such obstacle, the honorable minister of foreign
relations has manifestly felt himself inevitably compelled to omit. or
suppress in his note all mention of the most capital and conspicuous
facts of record in those occurrences.

Neither the government of the United States nor the undersigned, at
that time in the United States, knew anything of the Wallace con-
tract, nor of any purpose in any quarter to conclude any such contract
until months after its conclusion.

This fact is wholly omitted in the note of the Hon. Mr. Gutierrez.

Both the government of the United States and the undersigned dis-
tinctly and affirmatively refused all manner of sanction to that con-
tract, in so far as it related to the island of Aves in question, and this
refusal of all such sanction was officially made known to the govern-

ment of Venezuela by the undersigned in his immediate notification to —

Do

AVES ISLAND. 213

the government of Venezuela in the month of March, 1855, of the
claim of these claimants for full indemnification for their unlawful
expulsion, in consequence of that contract, from the island of Aves.

All mention of this fact is omitted in the note of the Hon. Mr.
Gutierrez.

In the negotiation which took place in September, 1855, to protect
the just rights of the assignees of the Wallace contract after its annul-
ment by Venezuela, not only was all manner of sanction or counte-
nance of that contract, in so far as it related to the Aves, withheld
and refused by the government of the United States and by the under-
signed, but, on the contrary, the undersigned, under express instruc-
tions then referred to, made known officially and in the most formal
and effectual manner to the government of Venezuela, that the Aves,
and all the rights and claims of the present claimants therein, were,
in their whole extent, reserved and saved from being in any manner
or in the slightest degree affected or impaired by that negotiation or
by any aid which the undersigned might render it.

This most conclusive fact, announced by the undersigned to the
government of Venezuela at the commencement of that negotiation,
insisted on during its continuance, and five days before it closed,
placed on record officially before the government of Venezuela, and
afterwards, in subsequent record, insisted on, is, in the note of the
Hon. Mr. Gutierrez, in the face of all that record, totally and incom-

prehensibly suppressed.
It is thus made the duty of the undersigned now to reproduce that

record.

The negotiation in question closed in a contract concluded and
signed between the government of Venezuela and.the agent of the
assignees of the Wallace contract on the 29th of September, 1855. On
the 24th of that month, the undersigned delivered to the government
of Venezuela an official note of that date, being a memorandum of an
audience granted to the undersigned three days before by his excellency
the President of the republic, in the presence of his excellency’s min-
ister, the Hon. Mr. Aranda (then minister of foreign relations) and
the Hon. Mr. Gutierrez, (then minister of finance.)

From that note of the undersigned of the 24th of September, 1855,
the following are extracts defining the position then taken upon this
subject by the undersigned, in pursuance of express orders from his
government: _

‘‘ After this preliminary reference, and having previously presented
to his excellency the agent of the company, the undersigned proceeded
officially to make known to his excellency what he had previously
declared to the ministers of his excellency’s government, that in ren-
dering his good offices in aid of the purposes of the agent of the com-
pany to save their rights as the assignees of the Wallace contract, the
undersigned was emphatically instructed to forbear from saying or
doing anything which could in the slightest degree affect or impair
the claim against the Venezuelan government for full reparation on
the part of those American citizens whom Venezuela had found in
possession of the Aves Island in December last. The undersigned
explained, therefore, fully and clearly to his excellency, that all which

914 AVES ISLAND.

he might say or do in aid of the agent of the company, must be under-
stood with this express reservation, that the Aves claim was a wholly
separate matter, in no way to be compromised or affected by any
arrangement which might be made in respect to the rights under the
Wallace contract, or by any aid which the undersigned might render
in bringing about such an arrangement.”’ '

Certainly this language of reservation and exception of the present .

claim in its full extent from being in any way affected, or impaired,
or compromised by that negotiation, or by any action of the under-
signed in relation thereto is, and was intended to be, just as clear,
explicit, and comprehensive as languagecan be. But the undersigned,
as appears by the same record, did not stop with this. The same note
proceeds to state that: .

‘In reply to a remark from his excellency expressing his prefer-
ence that the claim in-regard to the previous occupation of the Aves
Island, should, if possible, be disposed of in any arrangement which
might be made with the agent of the company, the undersigned
answered to his excellency as he had previously answered to his excel-
lency’s ministers upon the same point, that any such disposition of the
Aves claim was wholly impossible, not only by reason of the entirely
distinct character of the two subjects and of the duty of the under-
signed to treat them separately, but also by reason of the fact that the
undersigned was not yet fully in possession of all the information
requisite for the due adjustment of the Aves claim. He felt himself

authorized, however, in view of recent instructions, to repeat the ex-

pression of his confident conviction that the government of the United
States would deem it its duty to maintain the right of those claimants
to full indemnification.”’

Surely this was a language which did not admit and could not admit
any possible misapprehension ; but out of abundant caution, and to
define repeatedly, and, if possible, with still more exactness, the posi-
tion of the government of the United States and its legation upon this
point, the undersigned again referred to the topic, and representing
to his excellency the very grave and serious aspect presented by this
- Aves claim, even when viewed exclusively upon its own character and
circumstances, and urging his excellency to consider the great addi-
tional complication and aggravation which must be brought upon it
by the Venezuelan government if it should persist in a course of pol-
icy inflicting serious loss and injury upon other citizens of the United
States having other rights and interests vested under the Wallace
contract in the several guano islands considered to belong to the repub-
lic, the undersigned proceeded to state that the effect of concluding a
satisfactory arrangement with the agent of the company would only
be to leave this Aves claim to be afterwards adjusted upon due con-
sideration of its own rights and merits, without such additional and
extrinsic embarrassment and aggravation. °

The undersigned will quote again from the same note of the 24th of
September, 1855, his exact language on this point, which is as follows:

‘‘The undersigned then, proceeding more immediately to the objects

and purposes of Mr. Pickrell, the agent of the company ihterested in’ |

the Wallace contract, desired his excellency to consider the extremely

AVES ISLAND, yatta:

unfortunate aspect in which this whole guano question, between Vene-
zuela and the citizens of the United States interested in it, now pre-
sented itself to the government of the United States. A whole series:
of events of a grave and highly unsatisfactory character, each of them
a separate occurrence, but all having a common reference to the rights
of American citizens in the guano islands, had followed each other in
rapid succession. The forcible dispossessidn of the American citizens
on the Aves, the contemporaneous conclusion of the Wallace contract,
its annulment by Venezuela in defeat of the rightful expectations and
to the great damage of those interested in it, were facts each of which
tended to aggravate the other, and to complicate the negotiation look-
ing to a satisfactory adjustment of any or all of them. The under-
signed earnestly desired his excellency to consider the grave additional
complication and difficulty which must ensue if the agent of the com-
pany now present, through the refusal of Venezuela, should find him-
self unable, after all his efforts, even when aided by the good offices of
the legation of the United States, to make any satisfactory arrange-
ment to protect the rights and interests which he represented. It was
the duty of the undersigned most respectfully to urge upon his excel-
lency’s consideration that in the judgment of the government of the
United States this guano question was a matter of great and public
concernment, that it involved not only important rights and large in-
terests, but also a grave question of good faith, the determination of
which, under the circumstances in which it had arisen, could not but
have its effect upon the relations of the two countries; and that the
undersigned, while carefully avoiding an expression which could be
possibly construed in any unfriendly or minatory sense, or in any
sense not perfectly compatible with the most perfect consideration for
the dignity of the Venezuelan government, yet felt bound in frankness
to make known to his excellency that both the people and the govern-
ment of the United States felt a deep interest in this subject, and
would see with extreme regret and sensibility any course now taken
by Venezuela which should result in a loss and injury to those of our
citizens interested in the contract above referred to. On the other
hand, the undersigned did not hesitate to say that, in his judgment,
an opposite policy on the part of Venezuela, recognizing and restoring,
‘in a satisfactory manner, the rights of those citizens, would produce
an excellent effect upon the relations of the two governments, not only
as in itself an act of good faith, but also as leaving the very serious
question which had previously arisen between the two governments in
regard to the forcible occupation of the Aves Island by Venezuela to
be considered and adjusted upon its own character and circumstances,
without the additional aggravation which must be brought upon it by
the persistence of Venezuela in a course of policy productive of great
loss and injury to other citizens of the United States interested in the
Wallace contract.’’
~ Thus formally and fully was the government of Venezuela, from the
very commencement ot this negotiation, officially assured that the
claim of these claimants could in no manner nor in the slightest degree
be affected by it; that the Aves Island and all their rights and claims
therein were fully reserved and saved; that those rights and claims

216 AVES ISLAND,

were a wholly separate matter, and would as such be effectually and
fully sustained by the United States, and, finally, that the conclusion
of a satisfactory arrangement with the agent of the assignees of the
Wallace contract would, by freeing these anterior claims from formid-
able additional aggravation and difficulty, leave them, as a very
grave and serious question, to be afterwards adjusted upon due con-
sideration of their own separate character and merits.

And, after full consideration of the whole matter, the government of
Venezuela, with this recorded position of the government of the United
States upon that subject in its hands, did, in full view of this record,
five days afterwards, conclude the arrangement with the agent of the
assignees of the Wallace contract. That the government of Vene-
zuela should take notice of this record in framing that arrangement
was a matter of course, and that such notice was taken may be in-
ferred from the fact that the new arrangement, departing from the
form of the Wallace contract, omitted all mention of the Aves in the
article granting the usufruct of the guano islands of the republic to
the assignees of that contract, and “afterwards, in another article,
specified the Aves with the apparent object of relieving Venezuela
from liability to those assignees in the event that her possession and
use of it for her own profit should, in view of this claim or from any
other reason, terminate. Such was the view taken by the undersigned
when, in reference to the subject of the cession to the government of
Holland of the then armed possession of the Aves by Venezuela, he,
in his note of the 8th of March, 1856, after formally and urgently
protesting against such cession upon the main and principal ground of
the rights and claims of these claimants to that island, and of the in-
ternational reclamation by the government of the United States in
their behalf then pending in its full extent, considered it proper also
to address the government of Venezuela, in that note, the following
additional language, fully recognizing and restating the recorded
position taken by him in regard to the Aves in the whole course of the
negotiation in question:

‘‘The undersigned in this connection deems it his duty further to
state that he has in his possession a copy of a contract entered into on
the 29th of September last between the government of Venezuela and
John F. Pickrell, a citizen of the United “States, conveying to the said -
contractor and his associates certain exclusive privileges j in the guano
islands of Venezuela, in which contract the undersigned perceives that
the island of Aves in question is specified under certain conditions and
stipulations therein set forth. Though it is undoubtedly true that the
inclusion of that island in the said contract, in any form and to any
extent, took place without any manner of countenance or sanction on
the part of the government of the United States or of the undersigned,
by whom, on the contrary, all the rights and claims of its prior Amer-
ican occupants were fully and expressly reserved from being in any
way affected or impaired by that negotiation ; and though the under-
signed, in view of that reservation, now abstains from giving any
manner of sanction to the insertion of the Aves Island in that contract
to operate thereby any defeat of those reserved rights and claims in
their full extent, yet he deems it his duty to state in reference to the

AVES ISLAND. 217

cession of the island now under consideration, that it appears to him
that Venezuela, on her own sole responsibility, did by that contract
voluntarily transfer, for good consideration, to a citizen of the United
States, in their full usufruct, as against any foreign power whatsoever
possessory claims in that island she may have set up, be the same in
her own judgment greater or less, and that therefore upon any view
of her case, the proposed cession of the island to Holland, is objection-
able, and the undersigned again hereby makes known that such cession,
if it be made, must take place, subject to all and singular the rights
and claims in the premises of the government of the United States,
and of any and all of its citizens against whomsoever the same may
concern.”’
_. These two notes of the 24th of September, 1855, and of the 8th of
March, 1856, were repeatedly referred to by the undersigned in hig
note of the 20th of December last, and such having been from the first
and up to the present time the recorded and steadily-maintained posi-
tion of the undersigned and of the government of the United States as
to the rights and claims of the present claimants in their relations to
the two contracts now alleged by the Hon. Mr. Gutierrez in bar of
their claim, the undersigned is entirely unable to comprehend the
motive and policy of the honorable minister of foreign relations in
making that allegation, accompanied, as it is, by a total suppression
of this most complete and effectual reservation made by their govern-
ment and by the undersigned in their behalf. The undersigned can-
not indulge any disrespectful doubt that the Hon. Mr. Gutierrez
clearly perceived that this reservation wholly annihilates the force of
his allegation of these contracts, and utterly precludes it from having
any force against this claim. As introduced and insisted upon by the
Hon. Mr. Gutierrez, it can tend only to convince the government of
the United States even more fully and completely that Venezuela has
against this claim no valid defense. Had any such valid defense ex-
isted in the case, then surely the ability of the Hon. Mr. Gutierrez
would never have felt itself constrained to allege a defense so wholly
invalid and unfounded as this, the very presentation of which has
required the total suppression of the most important and conspicuous
fact appearing in the whole negotiation, and which suppression was
- sure to encounter at the hands of the undersigned this swift and signal
and conclusive exposure.
The Hon. Mr. Gutierrez, without one word of proof or argument
to sustain his statement, has alleged ‘‘that the island of Aves be-
longed to the republic before 1854, as the successor of Spain who dis-
covered it.’’ This allegation at this time was not expected by the
undersigned, who has from the first maintained before the government
of Venezuela that any pretension of Venezuelan title to the Aves prior
to 1854, has no sufficient foundation to justify discussion. Continued
research upon this point has fully confirmed the undersigned in this
emphatic view, and he desires that the observations now submitted by
him on the subject may be considered exclusively in that sense.
Before entering upon an examination of the proposition of Mr.
Gutierrez, above cited, it 1s proper to notice the undisputed facts

218 AVES ISLAND.

which, appearing as antecedent to any such discussion, seem to the
undersigned to preclude its necessity.

“It is not pretended that Venezuela can claim any title to the Aves
Island in question by reason of a contiguity. No single authority of
any character whatever is alleged to have ever recognized in any man-
ner that island as a Venezuelan possession prior to 1854. On the
contvary, all the geographical authorities who have described the
islands in that vicinity, and among these Balbi Alcedo and the official
Derrotero de las Antillas, in speaking of these islands, have entirely
failed to mention any such pretension of title to the Aves Island in
question. It is not asserted that in any constitution, law, ordinance,
decree, or other State paper whatsoever, emanating from the authority

either of the captain-generalship of Venezuela, the republic of Colom-

bia, or the republic of Venezuela, has this island of Aves ever been
named, prior to 1854, as a possession, or claimed possession of either of

those governments. No proofs have been offered and no assertion has ~

been made that any pretension of title in Venezuela to the Aves prior
to 1854, has been even mentioned and much less countenanced by any
writer whatever. The undersigned maintains the firm conviction,
that up to the year 1854 no printed mention of such title or pretension
of title can anywhere be found. ‘The undersigned has no reason to
believe that any unpublished document written before 1854, and. exist-
ing in the archives of any government, can be produced, in which
such Venezuelan pretension of title is even alluded to. It is not pre-
tended that Venezuela ever established any such jurisdiction upon the
Aves, or ever made any such manifestation of title there prior to 1854,
as other governments are bound to respect; and, as already stated, it
has not been proved or, to the knowledge of the undersigned, any-
where asserted that prior to 1854 any citizen of the republic of
Venezuela, in any capacity, either private or public, ever visited that
island. J |

In view of such undisputed facts existing antecedent to any dis-
cussion of the title now alleged by Venezuela prior to 1854, it would
certainly seem that no discussion on that point is now necessary.

But: there is another line of facts which have not, so far as the
undersigned is informed, been heretofore alluded to in this connection,
though undoubtedly of the most conclusive character. 'To these facts
the undersigned has now the honor to invoke especial attention of the
honorable Minister of Foreign Relations.

The undersigned confidently alleges that the government of Vene-
zuela itself, acting through its duly authorized commissioners, has at
a yet recent date announced to the world its official repudiation of all
title or pretension of title to the Island of Aves in question; and that
in June, 1854, when these claimants took possession of that island,
that official repudiation of all Venezuelan title or claim to it stood un-
modified and in full force.

As the exact demonstration of this proposition, while exploding all*
pretension of title in Venezuela to the Aves, must present, in the
strongest light, the extraordinary character of the outrage complained
of by these claimants, and the consequent signal obligation of Vene-

AVES ISLAND. 219

zuela to make to them full reparation, the undersigned deems it proper
to present that demonstration with exactness of detail.

Soon after the .establishment of the republic of Venezuela its con-
stituent congress, in a decree under date of 13th of October, 1830,
reciting the importance to Venezuela of a statistical delineation of the
territory of the nation, and of its limits in ‘‘all its provinces,’’ directed
“‘the executive power to authorize a skilled official functionary to ac-
complish that work.’’ Under this law Colonel Codazzi, a scientific
engineer, who had been previously extensively engaged in such service
under the authority of the republic of Colombia, was duly appointed
and commissioned to perform within the period of three years, by au-
thority of the government of Venezuela, the work proposed. By another
law of congress under date of 3d May, 1833, the prescribed period for
the work was extended, in ‘compliance with an official report of the
Department of War, two years longer. By another law of congress
of 22d April, 1835, also in pursuance of the official report of the De-
partment of War, the period was again extended to the 31st of Decem-
ber, 1837. Another law of congress of 17th of April, 1837, reciting
that ‘‘the previous extension is not long enough to enable the com-
mission te complete the delineation of the province Guayana,’’ again
extends the period to the 3lst of December, 1838, and further enacts
‘‘that the commission, as soon as it has completed the delineation of
that province, shall make the general delineation of the republic.’’
By yet another law of congress, 18th of April, 1839, it is enacted that
the commission shall continue till the 31st of December, 1839, and that
its duty shall be ‘‘to form the general delineation of the republic, to
form a descriptive chart presenting its physical aspect, and to note
and explain the leading facts in the political history of Venezuela in
their relation to its geography, and that the government shall place
at the disposition of the commission all the delineations, itineraries,
statistical information, and other documents existing in its archives,
and which may be deemed by the commission proper to be consulted in
the discharge of these its duties; that the works may be engraved and
printed by the commission for its account, but one hundred copies shall
be the property of the government for purposes of instruction and for
the public officers; that if the time given by this law for the comple-
tion of the work be not sufficient, then the executive power, by consent
of the council of government, may extend the same six months more.’’
By yet another law of congress of the 16th of March, 1840, reciting
‘that although by the law of 18th of April of the year last past per-
mission was given to that commissioner (Colonel Codazzi) to print and
engrave his said work for his own account, as a reward for his absolute
devotion to the duty with which he was charged, the economy of the
public treasury being at the same time thereby considered, it has not
on that account ceased to be a national work, the prompt completion
_of which is of the utmost importance,’’ it is enacted that ‘‘the execu-

tive power shall cause to be placed at the disposition of Colonel Agustin
Codazzi ten thousand dollars out of the public treasury, as a loan, for
the printing and engraving of the work with which he was charged
by the executive power under the law of 14th of October, 1830.”’ By
another law of congress of 23d of February, 1841, making the same

L

— ——

220 AVES ISLAND.

- recital, and again referring to the high national importance and utility

of the work and of its prompt conclusion, it is enacted that the execu-
tive power shall place five’ thousand dollars more at the disposition of
Colonel Codazzi for the same purpose. ;

On the 4th of September, 1840, M. Berthelot, general secretary of
the central committee of the Geographical Society of Paris, read to
that society in its session of that day a ‘‘report upon the geographical

- and statistical labors executed in all the extension of the territory of

Venezuela by Colonel Codazzi.’’ From this report the following re-
marks are extracted:

‘‘M. Codazzi, colonel of engineers, recently arrived in Paris, is
charged by his government to cause to be engraved in France the great
chart of the republic of Venezuela and the atlas of its provinces com-
posed of twenty sheets. A special work dedicated to public instruction
will accompany these productions, and will form two handsome volumes
embracing the whole political history of Venezuela, the description,
geography, and the statistics of that region.”’ + Sp

‘‘T shall be able to give you only a succinct idea of the work which
the congress has thus ordered to be printed under the direction of Col-
onel Codazzi, to whom has been granted the obsolute ownership of the
same as a national recompense.’’ Fi + s A *

“The great map of Venezuela, the reductions and separated portions
of which form an atlas arranged by provinces, is the result of ten years
of incessant labors. This general map or chart presented to the insti-
tute by M. Arago has attracted the fixed attention of our savants.”’

*k * * * * * * *

‘“‘It remains for me, in concluding this report, to express a desire
which you will doubtless grant, that this excellent work of Colonel
Codazzi be admitted to compete for the annual premium which you
adjudge to those voyagers who have best served the cause of science.’’

On the 15th of March, 1841, a committee of the institute of France
composed of Messrs. Arago, Savary, and Elie de Beaumont, presented,
through their reporter, Mr. Bossingault, a ‘‘report upon the geograph-
ical and statistical works executed in the republic of Venezuela in pur-
suance of the orders of its congress.’’

From this report the following extracts are cited:

‘* By a decree of the 14th of October, 1830, the congress of Venezuela
authorized the executive power to cause to be formed a general chart
of the republic, and to cause to be collected in a single work the docu-
ments relating to the history and statistics of the country.’’ * *

‘‘Colonel Codazzi was charged with the direction of this important
work by the President of the republic. Mr. Codazzi has traversed during
the period of ten years and in all directions the vast territory of Vene-
mela, * * * The government having afforded to this engineer the

' means of proceeding to Europe to publish the result of his labors, he

has selected France for that purpose, where his first step has been to
submit to the judgment of the Academy of Sciences the fruit of his long
and laborious researches.’’ a y 5S 2 + ‘i

‘The examination of your committee has, with propriety, especially
been devoted to the value of the elements employed by Mr. Codazzi in
the construction of the atlas, and to the degree of confidence which the

eee

AVES ISLAND. 221

statistical documents forming the basis its text should inspire. These
documents are numerous and authentic, and emanate directly from the
general administration, because the government in creating the topo-
graphical commission placed its archives entirely at the disposition of
the skillful officer who was at its head.’’ # ** * *

‘<The number of observations of latitudes and of chronometrical longi-
tudes made by Mr. Codazziis considerable. This indefatigable observer
has established 1,002 notable points, it being observable that among ~
these there are 58 which have sustained a comparison with the observa-
tions published by M. de Humboldt and with those unpublished of one
of your, committee.”’

«Venezuela is situated at the northern extremity of South America.
Its political limits give it a very irregular figure, the circumference of
which is 566 miriametros, comprising upon the Sea of the Antillas an
extent of coasts of 144 miriametros. The superfice of the territory is
11,094.5 square miriametros, distributed in the following manner:

peree ghitesMTOMMtATUS' ..°:. o..ncceeanersecstensccecte eters steers et: 47.2
MM tPEO MOUNTAINS... 0.000 csecesasctecaneces meplopess great MS Baa 2,756.9
aple lands........... base ccd eine t Cee mRReE Teo Clete gees aa vee em 471.9
> ALULS ne ctRbkeele COA Asan MPR e-em Mh np bE sc ain 6,795.2
DS: - GOS ea a ele Prighe sateen ateee 222.8
Ai PME AING ON US. cara vssdecageateet saeleb ede cege lostuctces fenecece es 68.2
Mmelasble tovimundations:..2eeescerdectc st ecctesok cei hccneee 716.7
_ 2 207 3. OCR CBRE SERRE BR taal obese 1dr aa ele rn OR L526F

* * * “The labors of Colonel Codazzi having required on his
part so much perseverance appear to us as a whole and in all respects
worthy of the most effectual encouragement. Your committee would
not hesitate to solicit for them the highest proof of your estimation in
causing their insertion in the memotrés of foreign savants, if such a
request could be granted in ‘the case of materials so voluminous, and
which, besides, are on the eve of publication. Solely by reason of this
impossibility your committee restrict themselves to the proposition that
you offer your thanks to Mr. Codazzi for his important communication.
They think, also, that by reason of the enlightened protection which
the government of Venezuela has always granted to the labors of this
skillful official, it would be just and useful that a copy of this report
should be transmitted to the congress of that republic through the
Minister of Foreign Affairs.’’

. The conclusions of the report were adopted.

Thus formally was the geographical and topographical delineation
_ of the republic of Venezuela in the whole extent of its jurisdiction,
both continental and insular, as existing or pretended, laid before the
world by the government of Venezuela itself.

Thus formally was it in that character received, analyzed, and re-
ported upon by the learned societies standing in direct official relation
with the government of France, and thus their reports reciting the
exact number and measurement of all the islands claimed by Venezuela
as Venezuelan, was officially transmitted to the government of Ven-

>

2? AVES ISLAND.

ezuela by the Department of Foreign Affairs of the French govern- _
ment. .

And then all this official and scientific appreciation of the work of
the Venezuelan commission was formally recognized and accepted by
the Venezuelan government, for which, in consequence of these pro-
ceedings, Colonel Codazzi received from the French government the
decoration of the legion of honor. The Venezuelan government by a
special law of Congress of 22d , 1844, enabled him to accept
that distinction, and afterwards by other law of Congress of 17th of
May, 1845, reciting ‘‘that the services of Colonel Codazzi in the for-
mation of the map of Venezuela, and in its publication with the geog-
raphy and history of the country, are of great importance,’’ it is
enacted ‘‘that in payment of $15,000 granted to him by the laws of
16th of March, 1840, and 23d of February, 1841, for the purpose of
engraving the map of the republic and printing its geography and
history, the one 1,322 existing copies of the said work shall be received.
and sold for account of the nation.”’

Such being the legislative and administrative and diplomatic history
of this official geographical delineation of the whole of Venezuela by
the Venezuelan government, it is most manifest and indisputable that
the islands claimed by this work as Venezuelan, are so claimed by
that government; and to the islands which this work does not claim
as Venezuelan, all claim is by that government repudiated, and that
repudiation is published to the world.

Seventy-one islands of all classes, the greater part of them small
and uninhabited, are so claimed as Venezuelan. They are all deline-
ated on the great chart of Venezuela. They are all—every one of
them—mentioned in the accompanying volume, numbered, named,
and distributed among those sea-board provinces of the republic to
which they are considered as respectively belonging. They all reap-
pear, each in its place, on the separate maps of these provinces which
are found in the atlas. They reappear, the whole seventy-one, in the
map which in the atlas delineates the republic of Colombia. They
reappear, every one of them, in the two maps which in the atlas
delineate the republic of Venezuela as it was in 1810, and as it was in
1840.

But neither on the great chart, nor on any one of these maps of
Colombia, of Venezuela, or its provinces, does the island of Aves in
question appear, nor is it anywhere mentioned in the geographical
volume. 'T'o perceive the whole conclusive force of this fact, it must
be borne in mind that the great chart of Venezuela covers twenty-four
square feet, bears date of Caraccas, 1840, is dedicated to the constit-
uent Congress of 1830, and contains an inscription setting forth ‘‘ the
ten years’ labor’’ dedicated to the perfecting of its ‘‘most minute de=
tails,’’ and referring to acts of the government, above cited, which
give it its undisputed official character.

But if this omission of the Aves in question on the maps of Venez-
uela and Colombia were all, there might perhaps seem to be a possi-
bility of some pretext, or shadow of pretext, for the allegation that its
omission was accidental, or the result of oversight, and so should not
be held as affirmatively excluding all pretension of title to it by the

¢

AVES ISLAND. 023

government of Venezuela. But even for such a pretext, no opportu-
nity is left. Theisland of Aves in question was not forgotten. It was
put where it belonged, in the map of another region, and far outside
of any pretended Venezuelan jurisdiction.

Besides the maps of Venezuela in its various forms, the atlas intended
for public instruction contains a map of the World, a map of North
and South America, and a map entitled ‘‘ a map of the coasts of Terra
Firma, from the Orinoco to Yucatan; of the Antilles; and of the
greater part of the Lucayan Islands, with routes of navigation and
discovery by Columbus and other navigators.’’ And upon this map,
in its proper place up among the “‘ Little Antilies,’’ known as the
“¢ Windward Islands,’’ in the immediate vicinity of Saba, Monserrat,
and Guadaloupe, and three degrees of latitude away from that portion
of the sea shaded as containing the group of Venezuelan islands, we
find the Aves in question plainly delineated and named.

Here, then, is seen the positive and purposed exclusion, by the gov-
ernment of Venezuela, of the ‘‘Aves’’ from any claim of Venezuelan
jurisdiction in its furthest reach. Turning now to the geographical
volume made up from the Venezuelan archives, we find under the
chapter of ‘‘Islands,’’ the Venezuelan government, through its com-
mission, rendéring its reasons, and very sound reasons, for this exclu-
sion, in stating that the ‘‘ northernmost ’’ of the seventy-one Venezu-
elan islands are those of the chain ‘‘extending along the coast of the
Province of Caraccas,’’ and nearly ‘‘in the same parallel of latitude
with the Dutch islands of Curagao, Bonaire, and Oruba.’’ For this
reason, doubtless, the chart of Venezuela, and all the maps of Colombia,
and of Venezuela and its provinces, while excluding the Aves in ques-
tion, are extended so as to include this northernmost chain of islands
claimed as Venezuelan.

Thus is fully demonstrated the proposition above stated, that the
government of Venezuela, as late as 1845, formally and officially repu-
diated, and announced to the world her repudiation, of all pretension
of title to this Island of Aves. There is no pretense any where that —
this repudiation was in any way revoked, or did not stand in its full
force in June, 1854.

The cogent effect of this fact in manifesting the enormity of the out-
rage perpetrated on these claimants, for which redress is demanded,
cannot escape the attention either of the United States or of Venezuela.

Resting upon these grounds, his position that the Venezuelan pre-
tension of title to the Aves in 1854 has not sufficient foundation to
require discussion, the undersigned will now, out of respect to the
Venezuelan government, proceed to examine the proposition above
cited, that ‘‘the island belonged to Venezuela prior to 1854 as the suc-
cessor of Spain, who discovered it.’’ A brief analysis will suffice to
explode this proposition and scatter it to the winds.

In the first place, it is manifest that this proposition, in order to
present any precise legal or political meaning, must be modified in its
terms. The phrase ‘‘ successor to Spain,’’ without qualifying words,
means ‘‘ general successor to Spain.’’ Venezuela is no such ‘‘ general
successor.’ Her succession is special, and limited by the important
possessions which Spain has retained ; by the possessions of other powers

224 AVES ISLAND.

on this continent and in its seas, which have succeeded to certain
former possessions of Spain; and finally, by the words of the Venezu-
elan constitution, limiting the jurisdiction of Venezuela “ the territory
denominated the captain generalship of Venezuela.’’ _

Therefore, in order to be precise and clearly intelligible in its bear-
ings on the question in hand, the proposion should read, ‘‘ the island
belonged to Venezuela prior to 1854, as the successor to that part of
of the dominion of Spain known as the captain generalship of Ven-
ezuela.’’

Not the slightest doubt or difficulty can arise from the fact which
has been stated to the undersigned, that the captain generalship of
Venezuela, being formed in 1751, was the last of the continental goy-
ernments constituted by Spain, and included that part of the continent
of South America which had not been embraced in the several conti-
nental governments previously formed; because all the territory of
these continental governments formed originally part of the jurisdiction °
of the government of Santo Domingo, and were successively excinded
out of it. But besides this vast continental territory, the govern-
ment of Santo Domingo, as appears in the ‘‘ Leyes de las Yudias,”’
published at Madrid in 1786, liber II., pit. XV., comprehended
also ‘‘all the Windward Islands,’’ among which, as we have seen,
the Aves in question is found; and this group of islands was never
taken out of that jurisdiction by Spain, or assigned to the jurisdic-
tion of any of the continental governments, and least of all to that
of Venezuela, which was at first a dependency of the vice royalty of —
New Granada, and so continued till 1751. The cedula real, or royal
ordinance establishing the captain generalship of Venezuela, does not
appear to exist in print, and has not, after diligent search, been found
in manuscript; but thisis immaterial, because the historical portion of
the work of the Venezuelan official commission, drawn from the Ven-
ezuelan archives, thus gives the limits of the captain generalship
which it established : ;

‘*Tt had for limits on the north the Atlantic ocean and the Carib-
bean sea.”’

It is of course hardly needful to say that, independently of all these
ancient Spanish territorial regulations, the United States maintain
that this Island of Aves either was never reduced to possession by
Spain, or if so reduced to possession, was soon abandoned and left
derelict.

In view of these observations, the undersigned perceives to be
involved in the proposition of Hon. Mr. Gutierrez, above cited, the
truth of the following nine subordinate propositions embraced in it:

Ist. The Aves was discovered by Spain.

2d. That by such discovery, or in other manner, Spain established
her title to the Aves.

3d, That Spain maintained such title to the Aves till the date of the
establishment of the captain generalship of Venezuela.‘

4th. That Spain then included the Aves in that captain generalship.

5th. That the Aves remained under the jurisdiction and in the pos-
‘session of that captain generalship up to the date of its independence
under the name of Venezuela.

6th. That at the establishment of the republic of Colombia, the

AVES ISLAND. 295

Aves, as a part of Venezuela, came into the possession and under the
territorial sovereignty of that republic.

7th. That the republic of Colombia maintained such title and pos-
session of the Aves until it was dissolved, in 1830.

8th. That upon the dissolution of the republic of Colombia, the
title to and possession of the Aves reverted to Venezuela.

9th. That since the date of her existence as an independent republic,
Venezuela has, previous to 1854, in no way lost or relinquished the
possession and sovereignty of the Aves, but has, up to that year, con:
stantly maintained the same by such manifestations of title and pos-
session as other governments and their citizens and subjects are bound
to respect.

Now, it is wholly manifest that the truth of every one of these nine
propositions is indispensably necessary to establish the title of Venez-
uela to the Aves, as it is alleged to have existed at the beginning of the
year 1854 in her, as the successor of Spain, and if any single one of
these nine propositions.be not true, then such alleged title of Venezu-
-ela at that date falls to the ground. In fact, every one of these nine
propositions is true in relation to Margarita, and to all the islands
belonging to Venezuela. ©

But not one of these nine propositions, with the possible exception
of the first, has been or can be proved to be true in relation to this
Island of Aves.

In the confident judgment of the undersigned, every one of these
nine propositions in relation to the Aves, except the first, is untrue ;
and the last three, being the most important, have been, as we have
seen, officially announced to be untrue by Venezuela herself.

Of such a pretension of title to an island known and used as derelict
for two hundred years; a pretension never heard of till the end of 1854;
a pretension alleged to rest only on a chain of succession of which all
the important links are wanting; a pretension, in fine, which the goy-
ernment now setting it up did formally and officially and publicly
repudiate in 1840. Of such a pretension of Venezuela to title in the
Aves prior to 1854, nothing more remains, in the judgment of the un-
dersigned, to be said, save this: that such a pretension, not having
sufficient foundation, nor color of foundation, to form a profitable sub-
ject of speculative historical disquisition, has no appropriate place in a
discussion between governments, and when alleged in justification or
excuse of a serious outrage upon citizens of the United States cannot
justly claim further consideration.

The undersigned has now disposed of all the observations in the note
of the Hon. Mr. Gutierrez which appear intended to bear in any
way against the obligation of the government of Venezuela to make
full and prompt reparation to these claimants.

If this reply of the undersigned, intended to close, on his part, the
discussion of the general question of the liability of Venezuela to make
redress in this case, shall appear to the government of Venezuela as
complete and conclusive as it is full and minute, this fact should be
attributed to the impregnable and irresistible force and justice of this

reclamation. The careful examination which the undersigned has now -

bestowed upon the subject, will, he trusts, also indicate to the honor-
Ex. Doc. 10 15

~

226 AVES ISLAND.

able Minister of Foreign Relations his desire to give just and respectful
consideration to every observation, however destitute of foundation it
may appear, which has been, in the present attitude of the case, pre-
sented in behalf of the Venezuelan government.

For now it is the duty of the undersigned to announce to the gov-
ernment of Venezuela that further procrastination in the adjustment of
this claim cannot be regarded with indifference by the government of
the United States. The case is one of grave and rash outrage upon
citizens of the United States and their property, inflicting upon them
great loss and injury. To their government, it appears abundantly
sustained by evidence and fortified in principle as regards the right of
the claimants.to expect redress from Venezuela.

The undersigned is therefore instructed by his government to press
in its name, the demand for such redress in a formal and decisive
manner, and to request the determination in the case of the govern-
ment of Venezuela. If lability be admitted, a basis of adjustment
may be fixed without delay. If reparation be refused, reasons for that
course, satisfactory to the government of the United States, and not
yet assigned, will be expected, especially in view of the stipulations
contained in the third section of the thirty-fourth article of the treaty
of 1836, which contemplates special modes of redress in a case where
either party ‘‘ considering itself offended, shall first have presented to
the other a statement of such injuries or damages, verified by compe-
tent proofs, and demanded justice, and the same shall have been either -
refused or unreasonably delayed.’’

The undersigned avails himself of this occasion to renew to the Hon.
Sefior Gutierrez the assurance of his distinguished consideration.

CHARLES HAMES.

Hon. JAciInto GUTIERREZ,

Minister of Foreign Relations.

Accompanying this note is a printed paper, entitled ‘‘ testimony in .
case of Philo 8. Shelton and Sampson & Tappan against the govern-
ment of Venezuela,’’ and containing extracts from the interrogatories
propounded to, and the answers given under oath by, Captain N. P.
Gibbs. This paper, transmitted to this legation from the Department
of State, is presented in its printed form, with the seal of this legation
upon it, instead of a manuscript copy thereof, solely with a view to the
convenience of business and facility of reference. A duplicate of the
same, printed in the same form, and duly certified by the Department
of State to be a true copy of the original on file there, remains in the
archives of the legation.

Mr. Cass to Mr. Eames.

No. 50.] DEPARTMENT OF STATE,
Washington, April 3, 1857.
Str: At the request of the claimant, P. 8. Shelton, Esq., I transmit,
herewith, a certified copy of the statement of his claim against Vene-

AVES ISLAND. 22,7

zuela ; presented in detail. The items composing this statement corre-
spond with those set forth in the memorandum furnished by Mr. San-
ford, and transmitted with the instruction of my predecessor to you
of the 3d February last. I need do no more than reiterate the views
therein expressed.

Tam, sir, your obedient servant,

LEWIS CASS.
Cuar.es Hames, Hsq., &c.

Mr. Cass to Mr. Hames.

No. 52. | DEPARTMENT OF STATE, »
Washington, May 25, 1857.

Str: Not a little surprise was occasioned by the receipt on the 8th
instant, of your dispatch No. 36, of the Ist ultimo, acquainting the
department of the non-arrival of the instructions to you numbered
44, 45, and 46, although those numbered 47 and 48 had not failed to
reach you. Before undertaking to prepare duplicates of the missing
' dispatches, which would have been in some respects impracticable, an
efiort was made to discover whether your failure to receive them was
the result of neglect, fraud, or accident. A letter received this morn-
ing from D. B. Taylor, dispatch agent at New York, discloses the fact
that it was owing to the gross and culpable neglect of Mr. J. A. Hill,
late dispatch agent in the same city. Mr. Taylor states, in his letter,
that he found the packet of dispatches among the books handed over
to him by his predecessor, and he has returned it to the department.
No time is lost in transmitting it once more en route to its destination.

A more unfortunate and ill-timed mishap than the detention of this
packet of dispatches could scarcely have occurred; referring princi-
pally to the claim of Mr. Philo 8. Shelton, to promote and expedite
the adjustment of which, Mr. H. 8. Sanford, as Mr. Shelton’s agent
and attorney, visited Venezuela, and covering very important evidence
and statements in support of that claim, upon which Mr. Sanford
placed much reliance as aiding you in its complete development and
entire verification, as well as inclosing a duplicate of the missing
numbers 37 and 38, of August last, the former of which conveyed to
you the emphatic views of this government in regard to the same
claim; the absence of these instructions must to a great extent have
embarrassed your official movements, as well as have, probably,
counterbalanced the benefits proposed by Mr. Sanford in repairing to
Caraccas. .

One of the dispatches contained the leave of absence granted by the
late executive, with an accompanying private letter from my prede-
cessor to you. From the post-mark on the original envelope, you will
observe that it was mailed in this city on the 7th February last.

I have to express to you the high appreciation entertained by the
department of the ability, earnestness, and research displayed in your
note of the 31st March to the Venezuelan minister for foreign rela-
tions upon the subject of the Shelton claim; and its approval of ‘the

a

+

228 AVES ISLAND.

manner in which you have in that note presented it for adjustment.
It is only to be regretted that from any untoward circunistances so
long a time has elapsed before you were enabled, in your judgment
satisfactorily, to demand that consideration of the subject to which its
importance and the extent of interests involved entitled it.

Your No. 37 was received on the 14th instant. The department
hopes to receive the reply of Venezuela to your note of the 31st March,
by the next mail from Caraccas.

I am, sir; your obedient servant,

LEWIS CASS.

CuHaRLes Hamus, Esq., cc.

Inclosures.

Duplicate of instruction No. 37, with its inclosure.

2 ° (f Co aS Sena, Inclosumes
Original, No. 44.

Ge 45.

oC 46, with its inclosure.

Mr, Eames to Mr. Cass.

No. 38. ] LEGATION oF THE UNITED STATES,
Caracas, June 13, 1857.

Str: I have the honor to acknowledge the receipt, on the 23d ultimo,
of your Nos. 49 and 50, under dates respectively of 1st and 3d of
April last, being the latest dispatches received from the department.
But Nos. 37, 38, 44, 45, and 46, are still wanting. All the duplicates
of them referred to in your No. 49, as having been forwarded early in
February last, having failed to reach this legation: thus making a loss
in all, duplicates and originals, of not less than ten dispatches from
the department since August last, most of them appearing to relate to
the Aves claim. For the reasons stated in my No. 36, under date of
Ist April last, I am convinced that those duplicates, like their originals,
never reached Laguayra.

With reference to my No. 36, and its inclosures, relating to the Aves
claim, I have now the honor to transmit, inclosed, copies of further
correspondence with this government on that subject, being three
notes addressed to me by Mr. Gutierrez, under dates, respectively, of
28th ultimo, and 2d and 12th instant, with two notes addressed by me
to him, under dates of 29th ultimo and 11th instant.

Your No. 49, of Ist April last, expressed the hope that the Aves
- claim had already been finally and satisfactorily adjusted by this gov-
ernment, and referred to the probability that I might, at that time, be
on my way to the United States, under the leave of absence asked by
me to take effect in February last, and then granted. Such would
have been the case, had I not for four months past, and until now,
forborne to avail’myself of that leave in order to urge the Aves claim.

But, by the correspondence now inclosed, the department will per-

AVES ISLAND. 229

ceive that the government of Venezuela, up to this time, has not only
failed to conclude or to recognize its obligation to conclude any such
adjustment of that claim; but that, on the contrary, in the face of the
formal and decisive demand of the United States, it still persists in
withholding its determination even as to the preliminary question of
its liability in the case.

By my note to Mr. Gutierrez of the 29th ultimo, the department
will perceive that the decisive requirement by the government of the
United States of that determination without delay, was formally
announced by me to the Venezuelan government as early as the 23d
of February last in the strong terms of the instruction No. 42 from
the department ; that it was reiterated and pressed in the same sense,
and in connection with the demand for reparation, in my note to Mr.
Gutierrez of the 31st of March last, intended in pursuance of that
instruction to close, on the part of the United States, the general dis-
cussion; and that I have continued to insist upon the same require-
ment in the most urgent manner ever since its announcement.

The course of the Venezuelan government in failing to indicate a
purpose to afford redress in the case, and in withholding for such a
length of time its determination, when thus demanded, appears to me
not only wholly unjust to the claimants, but also to be not in con-
formity with a due respect to the position assumed upon the subject
by the government of the United States.

i, therefore, under my instructions, deemed it most conducive to
the attainment of justice in the case, and most compatible with the
dignity of my government, not to sanction, nor seem to sanction, this
unexpected and unjustifiable procrastination by continuing to await,
for a time indefinitely longer, the required answer of Venezuela as to
her liability in the case. With this view, in my note of the 29th of
May, I announced to the Venezuelan government my determination
not to wait for such answer beyond a fixed period, and failing then to
receive it to proceed to Washington, and submit in person the whole
state of the case to my government for its consideration.

My conviction of the expediency of this announcement has been
confirmed by the reply of Mr. Gutierrez. That reply, under date of
the 2d instant, is, in my judgment, nothing more than a series of
pretexts for further and indefinite delay ; and it is observable that only
a single one of these—the further inquiry as to the alleged Dias
‘‘agreement’’—has even in appearance the slightest pertinency to the
merits of the reclamation or the duty of Venezuela in respect to it.
Nor can even such inquiry in respect to that paper be regarded as
really material, unless Venezuela intends to maintain that she did not
forcibly expel the claimants from the Aves, which, in view of all the
proofs, I suppose to be impossible. The other points of the reply are
obviously an attempt to substitute new and irrelevant issues in the
case in place of that presented in my notes of the 31st of March and
29th of May. Such an attempt to complicate and prolong the contro-
versy should not be in any way countenanced by me, and therefore I
distinctly declined to discuss these extraneous allegations.

Though all official announcement of the determination of the Vene-
zuelan government in the case has been withheld, I deem it proper to

> .

230 AVES ISLAND.

state that from the best means of information within my reach, I have
become convinced that up to the date of my note of 11th instant, the
purpose of Venezuela ultimately to refuse all reparation, was but too
probable. Some of the expressions in the answer of Mr. Gutierrez,
under date of 12th instant, to that note, may perhaps bear a construc-
tion somewhat less unfavorable to the claim. This change of tone,
in so far as it may exist, I attribute to an apprehension, probably
strengthened by my note of the 11th instant, that the government of
the United States may now see fit to press the claim in a manner so’
stringent as to be effectual.

With the highest respect and consideration, I have the honor to be,
your obedient servant,

CHARLES EAMES.
Hon. Lewis Cass,
Secretary of State.

REPUBLIC OF VENEZUELA,
Caracas, May 28, 1857.

Reverting to what he has verbally stated to the minister resident of
the United States in various conferences, the undersigned, secretary of
foreign relations of Venezuela, now has the honor again to state that
the lengthy note of the American legation in reference to the guano of |
Aves Island, a note extending over thirty-two sheets, which. it was
necessary to have previously translated, together with a long printed
document annexed, setting forth the declaration of N. P. Gibbs, is now
under consideration by the government, which has submitted the ques-
tion to the deliberations of its council. As it is the desire of the execu-
tive power to proceed with accuracy in the matter, and to invest its
decisions with the stamp of mature reflection and justice, time for
deliberation is necessarily required. And the undersigned again and
by its order here declares that the discussion of,the claim did not
formally commence before the 20th of December last, when it was first
presented to this department in a direct way, and accompanied by
vouchers; whence, therefore, the government resists every charge of
dilatoriness which may be attempted to be preferred against it.

On the other hand, the government has thought proper that its
answer should be preceded by certain acts relative to putting in a clear
light the imputations of violence and fraud alleged by Mr. Hames in
support of his claim; preliminary proceedings which have been delayed
by various circumstances, among which is the absence from this place
of those whose declarations are to be taken in the premises. To-morrow,
at twelve o'clock, the interrogatory of Lieutenant Colonel Domingo
Dias and Lieutenant Nicolas Pereiro will be proceeded with before the
commandant-at-arms of this province, notice of which is hereby trans-
mitted to you, in the event that you may wish to be present at it in
person or by representative. The executive power has endeavored to
expedite this matter in view of the information communicated by Mr.
Hames that, in consequence of the permission obtained from his gov-

AVES ISLAND. i 231

ernment, he intended to return to the United States, and had settled
on the 9th of June next as the period of his departure.
The undersigned tenders to Mr. Hames renewed assurances of his
distinguished consideration.
JACINTO GUTIERREZ.
Hon. CHARLES EAMES,
Minister Resident of the United States.

LEGATION OF THE UNITED STATES,
Caracas, May 29, 1857.

Sir: The undersigned, minister resident of the United States, has
the honor to acknowledge the note, under date of yesterday, of the
honorable minister of foreign relations, by which he is informed that
the testimony of two Venezuelan naval officers will be taken to-morrow,
before the proper military authority, in relation to certain points in-
volved in the Aves question, and this information is given in view of
the possibility that the undersigned may desire to witness the proceed-
ings.

_ The courtesy of the Hon. Mr. Gutierrez in making this communica-
tion is properly appreciated ; but, as the proceedings seem to be, in form
at least, a mere military inquiry touching the conduct of the officers
in question, the undersigned does not perceive any special inducement
to be present on the occasion. In fact, both the undersigned and his
government regard the facts of the case as having been already fully
developed and abundantly proved.

The honorable minister of foreign relations in the same note reiter-
ates the expression of the opinion that the discussion of the Aves claim
did not commence “‘formally”’ till the 20th of December last. The
point as stated, turning as it does upon a mere verbal distinction, is
not, in the judgment of the undersigned, of the slightest importance in
its bearing upon the present critical aspect of the case; but the state-
ment, when presented by the Hon. Mr. Gutierrez, as exonerating the
Venezuelan government from the responsibility of undue and perilous
delay in this matter, can by no means be accepted by the undersigned
as an accurate or just appreciation of the facts. These are of record
and speak for themselves.

Two entire months have now elapsed since the undersigned, by
express order of his government, upon rendered reasons and in the most
decisive manner, in its name, made known to the government of Vene-
zuela that this case of the Aves was, in the deliberate judgment of the
government of the United States, a clearly proved, grave, and wholly
unjustifiable outrage upon its citizens, inflicting on them great loss and
injury ; that further procrastination in the due adjustment of their claim
for reparation could not be regarded with indifference; and that, there-
fore, the determination of the governmentof Venezuela in the matter, was
required, in view of those modes of redress recognized in treaty stipu-
lations between the two governments as proper and applicable in cases
of proved injury, and of the refusal or unreasonable delay of just redress.

232 AVES ISLAND.

Nor did the note of the 31st of March, in which the undersigned made
these solemn announcements, take the government of Venezuela by
surprise. Five weeks before, on the 23d of February last, the under-
signed in a formal interview, sought for that sole purpose, fully ex-
plained, with careful exactness, to the honorable minister of foreign
relations the position thus deliberately and definitely assumed by the
government of the United States. In addition to all this, the under-
signed, in view of the urgency and grave responsibility of the case, has
not ceased to press in every possible manner upon the attention of the’
government of Venezuela the importance of prompt and satisfactory
action in the premises. He has solicited and obtained a special audience
of his excellency the president upon the subject, and has availed him-
self to the utmost of that opportunity to enforce its urgency. No week
. has passed since the announcement in question in which he has failed
to press the case with the minister of foreign relations.

It is with regret and astonishment that the undersigned now finds
himself compelled to inform his government that the only answer yet
received in this case from the government of Venezuela is, that the
matter is under consideration. |

This is manifestly a state of things full of peril to the friendly rela-
tions between the two governments; and the undersigned deems it
proper to state that he is confirmed in this conviction by instructions
very recently received. Just respect to the attitude of the government
of the United States in this case demands that the definitive answer of |
the government of Venezuela, as required in the note of the undersigned
of the 31st of March, should no longer be withheld. Should such
answer reach this legation on or before the 6th proximo, and that such
is the purpose of the Venezuelan government may, perhaps, be inferred
from the note of the Hon. Mr. Gutierrez, then it will be fairly and
maturely considered with a view to the prompt adjustment of this
question upon principles of equity and justice. Should that day pass
without such answer from the government of Venezuela, the under-
signed, under his instructions, will deem it his duty to proceed at once
to the United States and report in person to his government the unrea-
sonable delay of the government of Venezuela, and the total failure of
his best efforts to obtain such answer, as constituting in his judgment
substantially a defeat of justice in the case.

The undersigned avails himself of this opportunity to renew to the
Hon. Sefior Gutierrez the assurance of his distinguished consideration.
CHARLES HAMES.

Hon. JActIntToO GUTIERREZ,

Minister of Foreign Relations.

REPUBLIC OF VENEZUELA,
Caracas, June 2, 1857.
The undersigned has communicated to his government the note of
the legation of the United States of the 29th ultimo, and the execu-
tive power has directed the following in answer.

AVES ISLAND. ' 233

Mr. Eames has presented a claim against Venezuela, the admission
of which, in the view of the republic, is attended with serious difficul-
ties. An attempt has been made to set aside one of the most consid-

erable of these difficulties by saying, on the faith of the declarations
of certain individuals, that a document signed by two individuals was
not the spontaneous act of their will, but the result of compulsion and
fraud on the part of ‘the officer to whom they delivered it. Since the
argument used against such statements in the first note of the under-
signed, Mr. Eames has persisted in advancing them as an evidence of
the nullity of an act which, even had it been compulsorily consented
to, could not be invalidated, unless the means of violence resorted to
against the declarants should be made out with precision and by proof.
It was natural, therefore, that measures should have been taken to
ascertain what took place between Colonel. Domingo Dias, the other
Venezuelan officers at Aves, and the Americans found in the island.
If the United States extend confidence to the allegations of their
citizens ; Venezuela, which must not discredit the reports of her citi-
zens, much less the reports of those who, by the position which they
occupy and the functions which they exercise, are worthy of every
consideration and respect ; Venezuela, which cannot but defend their
rights, has believed that it was its right also to be informed, on its
part, of the real state of the occurrences, and to seek the information
at the hands of. those who ought to possess the necessary knowledge.
The government had supposed that 1t was contemplated to discuss a
' question between two equal States; that it had the power to set forth
its objections to rebut the proofs of the claimants, and to take all nec-
essary time to deliberate; and for this reason, unwilling to build up
its defence without the intervention of the adverse party, it invited
Mr. Hames’ presence at the taking of two declarations. Yet he has
declined thus to intervene, upon the averment that in his judgment
and in that of his government the facts are amply elucidated and
abundantly proved. Granted that this is the judgment of the one
and the other, but such it is not of the government of Venezuela and
of the minister who pens this answer. Mr. Eames will not pretend
that Venezuela is held to subscribe to foreign judgments, for the mere
reason that they are such. In that case all that would be necessary
were to impose them upon the government without the necessity of
discussion, and with no other limitation than that of the will of the
claimants. |

But it is further required that the decisions of the executive power
in the matter—and this is not the only one commended to its care—
should be made in a short and peremptory period of time, suited to
special circumstances, prepared and arranged beforehand, without the
slightest reference to the condition of the affairs of the two republics,
in which the American legation finds itself, as has been learned from
the conversations of Mr. Hames with the undersigned. Such a pro-
ceeding is incompatible with the relations of friendship under which
both countries live. Of that friendship Venezuela has recently given
a valid proof by her signature to a treaty of commerce, amity, navi-
gation, and extradition, proposed to her by the United States, and now
awaiting ratification. Great and repeated were the efforts made by

234 AVES ISLAND.

the executive power, under the daily and pressing instances of Mr.
Eames, to obtain the assent of congress to this convention. When in
the act of doing this, it was far from foreseeing that it would ever be
pressed upon, and in terms such as are contained in Mr. Hames’ note,
for a matter which had been allowed quietly to slumber for two years.
Besides this, it took Mr. Hames more than a month and twenty-two
sheets of paper to answer the first note of the department, which coy-
ered five sheets only; yet it seems extraordinary to him that, sur-
rounded by numerous matters of various kinds, the executive power
should take a little more time to answer his latitudinous dissertation.
The undersigned has already stated that the executive power is expe-
diting the termination of this matter, because he is privy to the iten-
tion of Mr. Hames for some time entertained, of returning to his
eountry in virtue of permission asked and obtained from his govern-
ment. Yet, although he should depart, means of continued commu-
nication would not be wanting between the two governments, since ~
Venezuela maintains a legation in Washington.

The undersigned renews to Hon. Charles Hames assurances of his
distinguished consideration.

JACINTO GUTIERREZ.

Li@aTION oF THE UNITED STATES,
Caracas, June 11, 1857.

Sir: The undersigned, minister resident of the United States, has
the honor to acknowledge the note of the honorable Minister of Foreign
Relations of Venezuela, under date of 2d instant, in reiation to the
case of the Aves. Many of the views presented in that note wholly
fail to command the assent of the undersigned, but in the present state
of this negotiation, further discussion of them by the undersigned at
this time does not appear to be necessary nor useful.

The expectations and demands of the government of-the United
States not having been complied with by the government of Venezuela,
nothing for the present remains for the undersigned but to submit the
state of this case to the consideration of his government in the sense
and manner indicated in his note of the 29th ultimo.

Intending, therefore, to proceed to the United States without further
delay, the undersigned has the honor to request that the usual pass-
port may now be forwarded to him for that purpose.

The undersigned avails himself of this opportunity to assure the
Hon. Mr. Gutierrez of his very distinguished consideration.

CHARLES EAMES.

Hon. Jacinto GUTIERREZ,

Minister of Foreign Relations.

REPUBLIC OF VENEZUELA, ~
Caracas, June 12, 1857.
The undersigned, Secretary of State in the department of foreign
relations, has the honor of sending to the honorable minister resident

AVES ISLAND. 235.

of the United States the passport to those States asked for in his note
of yesterday, which was not received until this day.

The government regrets that it should have been impossible for it
to communicate, as it desired to do, to Mr. Hames the pending answer
in relation to the Aves question previous to the period of his return to
his country, for the reason that the compendium of the case, a form
which the executive power has deemed proper to give to the claim,
could not be completed in time. But, although this difficulty compels
it to defer this communication, it hopes that it will not be for any
long period, and then, should there be no legation of the United
States in Caracas, both cabinets will confer through the medium of
the chargé d’affaires of Venezuela, in Washington.

His excellency the President of the republic has specially ordered
the undersigned to reiterate to Mr. Hames the assurance of his desire
to maintain the most amicable relations with the United States, one of
which he has at all times given proofs, and of which he never will
lose sight.

Having thus complied with the directions of his excellency, the un-
dersigned tenders to Mr. Hames renewed assurances of his distin-
guished consideration.

JACINTO GUTIERREZ.
Hon. Cuaries Eamss,
Minister Resident of the United States.

Mr. Sanford to Mr. Cass.

WIiarp’s Horst,
| Washington, August 10, 1857.

Str: The present position of the claim of Philo 8. Shelton and
Sampson & Tappan against the Venezuelan government for the out-
rage and spoliation committed in December, 1854, at Shelton’s Isle,
seems to require this communication. |

The demand for redress, I would remind you, was made by the
claimants on the 15th January, 1855. It has been incessantly fol-
lowed up by them since. No neglect, no delay, can be imputed to
them. On the contrary, their importunity and the pertinacity with
which they urged their claim received from the late administration
more than one significant intimation that it was not altogether neces-
sary, as the claim was being enforced by the government. The accu-
inulation of depositions by these claimants was as early as July 8,
1856, hinted, as quite superfluous, until the Venezuelan government
should make some response.

The claimants, dissatisfied with the unaccountable delays at Car-
acas, with the assent, nay, at the instance of this government, dis-
patched an agent to Caracas early last winter, who remained there .
nearly four months, urging the justice of the claim upon the Vene-
zuelan government.

Whilst there that government was informed that if justice was con-

236 ) AVES ISLAND.

ceded to these claimants, every disposition existed to agree to reason-
able terms with respect to the amount of indemnity and mode of
payment. .

Notwithstanding the decisive terms of the instructions sent by the
late administration to our minister at Caracas, and of which the
Venezuelan government were apprized, notwithstanding the urgent
applications of the claimants for just redress, and though the minister
of the United States presented in December, 1856, the case, under the
instructions of the department, in a manner that rendered further pro-—
crastination on the part of the Venezuelan government inexcusable,
up to the time of the departure of the undersigned from Caraccas, on
the 10th of June, that government withheld not only payment or
assurance of payment of any indemnity, but disputed their right to
claim remuneration upon a most frivolous and unfounded pretext. It
did not deign to yield to our minister even a respectful response to his
communication.

In the last communication received from Senor Gutierrez in reply to
the intimation by Mr. Hames that, should the 6th of June pass with-
out a definitive answer from the government of Venezuela, he would,
‘funder his instructions, deem it his duty to proceed at once to the
United States, and report in person to his government the unreasonable
delay of the government of Venezuela, and the total failure of his best
efforts to obtain such answer, as constituting, in his judgment, sub-
stantially a defeat of justice in the case;’”’ the department will notice
the insulting sneer, ‘‘that even should he (Mr. Hames) leave, means
of communication between the two cabinets will not be wanting, since
Venezuela has a legation at Washington.”’

Two months have elapsed since the date of that communication of
Senor Gutierrez. Mr. Hames was detained at Caracas till the 13th
June last, and has since arrived in the United States. Up to this day,
‘though several vessels have arrived in the United States from Vene-
zuela since his departure, no communication has been received by the
government from Venezuela or its minister here in relation to this
case. ,

These claimants respectfully insist that, as appears by the dispatches
of the Department of State under the late administration, (see dispatch
of 14th August, 1856, and 2d January, 1857,) and which the same
department under the present administration have reiterated, but one
question remains open, and that is, the amount of damages to be paid
them; and upon this point they contend that their demands should be
considered distinctly and separately from Lang & Delano, and others —
who have presented their claims to the department.

From the outset P.S. Shelton and Sampson & Tappan have declined
to have their just claim connected or intermingled with the others
alluded to. They have protested against allowing the other claimants
to invoke the testimony they procured at enormous expense, in which
Lang & Delano have not participated, and because also objections
existed against such claim, which can be made manifest by an exami-
nation of the evidence in the case, and others which these claimants
may feel themselves constrained to produce.

AVES ISLAND. «ait
4

It is a mistake if it is supposed that all the claims stand on the same
footing, or are equally meritorious and just. .

With reference to the amount of damages claimed by Philo 8. Shel-
ton and Sampson & Tappan, the department has on file the several
statements thereof made by them. The department has also the proofs
(depositions of witnesses and documentary) sustaining generally the
aggregate amounts claimed to be just. If further testimony, if further
proofs, setting forth particulars of details, should be considered
requisite, is respectfully suggested to the department as was sug-
gested by the claimants in 1855, that the matter be referred to the
Chamber of Commerce of New York or Boston, or to any respectable
merchants of those cities, to examine the same, take any additional
testimony produced, and make report to the department of the amount
justly due, by which the claimants will abide. It is well nigh impos-
sible to furnish evidence to the department in an authentic form except
by some such proceeding.

With respect to the course to be pursued by the department in the’
interim, if such measure is adopted, the claimants would respectfully
suggest that if the United States government would again dispatch a
public vessel to Venezuela, with an open letter to that government by
the hand of an agent, who should have the full power of the claimants
for an arrangement of the claim; and if in such letter it should be
distinctly stated that all questions are foreclosed except the amount to
be paid, and referring the Venezuelan government to such agent as
authorized to arrange such amount, and that it was expected a just
settlement should be had immediately; and that if, on the return of
such vessel, such settlement should not have taken place, the United
States would feel itself bound not to allow its minister to return to
Venezuela, and to tender the Venezuelan minister here his passports,
and that it should also feel bound to resort to the remedy provided by
the third clause of the thirty-fourth article of our treaty with that
country, I do not doubt would insure a prompt adjustment of the claim.

The misfortune in this case has been that in the incipient stages of
it, and until December, 1856, our minister at Caracas did not seem
fully to understand or appreciate its merits; and hence it was not so
strenuously and positively urged upon the Venezuelan government as
the flagrancy of the outrage and its large amount demanded.

. The pertinacity with which the Venezuelan government insist upon
the capitulation by Gibbs to Dias, as precluding these claimants, it is
respectfully submitted, should receive emphatic rebuke from the gov-

-ernment of the United States. The proof of fraud and duress in rela-
tion to that document cannot be disputed by the assertions of the
instruments of the Venezuelan government, who perpetrated that fraud
and committed the violence.

But concede, arguendo, that this instrument was not tainted by fraud,
nor stained by duress, who ever heard that agreement made hy an
agent in fraud of his principal, without authority from or consent of
that principal, destroying his very agency, yielding up the property
intrusted to him, &c., was valid and binding upon his principal? By
the common law and by the civil law and by every dictate of common

238 AVES ISLAND.

‘
sense and common justice such rule with regard to agents and their
acts must be recognized.

It betrays a lamentable ignorance of the elementary principles of
justice, upon which those rules are all based, to question their exist-
ence. Nota law book on the subject of agency can be found that does
not reiterate them as well settled, and it applies to all acts, whether
the acts of individuals or of governments.

Even if a minister of the United States should, whether in lament-
able ignorance of the law or not, fully cognizant of the facts, or dis-
posed to pretermit the just rights of his government or its citizens,
make concessions or admissions, either of law or of fact, in derogation
of these rights, without instructions from his government, who can
pretend that the government should be bound by them?

With respect to the ulterior action of the government, in case Vene-
zuela should persist in withholding justice, the claimants, P. 8. Shel-
ton and Sampson & Tappan, would suggest:

First. They have heretofore ex abundante cautela, presented to the
President of the United States in December last a formal application
to be placed in possession of Aves Island under the act of 18th August,
1856, a law framed expressly to meet this very case, and to which the
executive decision still remains suspended awaiting the action of Vene-
zuela.

The formal petition to the President, and a copy of which is on file
in the department, is referred to, and a copy of the act herewith in-
closed, and the fifth section is respectfully referred to, which authorizes
the President, ‘‘at his discretion, to employ the land and naval forces
of the United States to protect the rights of the said discoverer or
discoverers, or their assigns, as aforesaid.”’

Second. These claimants insist, also, most respectfully that it is their
right to demand of their government, if payment of their just and
manifest indemnity is denied them, special letters of reprisal against
the Venezuelan government under the law of nations; and they insist,
also, that it is the constitutional duty of the Executive Department of
the government of the United States to see these laws faithfully exe-
cuted by the granting of such letters.

Whilst they concede that the power to issue general letters of marque
and reprisal (quasi acts of war) is not vested by the Constitution upon
the Executive without previous authority of Congress, they contend
that such restriction does not apply to a special letter of reprisal, which
is In no sense an act of war, or even a casus belli, but that it is an exe-
cutive function, to be exercised and performed by the Executive at his
own sound discretion, and upon his sole official responsibility. |

If, however, any doubt existed on this point under the act of August
18, 1856, above cited, so far forth as it respects Shelton’s Isle, legisla-
tive authority unquestionably exists.

Upon the subject of reprisals, whether the exercise is stipulated in
the treaty or not, and as to the distinction between general and special
reprisals, and as to special reprisals being the proper remedy in this
case, these claimants will, if desired by the department, submit a full
brief.

The long endurance of our government and these claimants of nearly

: AVES ISLAND. 239
three years under an unparalelled outrage upon its flag and upon them,
the absolute and positive necessity of exemplary measures to put a stop
to such acts by some of those irresponsible institutions called govern-
ments south of us, demands a resort to most cogent means. Their
administrations continually changing by successive domestic revolu-
tions, shirking responsibility for the acts of their predecessors, well
nigh takes from them all claim to the benefit of the beneficent principles
of the laws of nations that may be extended by a superior power to a
feeble nation. Certain it is, that with respect to most of the Hispano-
American governments, the records of the department will show that
amicable remonstrance, diplomatic correspondence, and negotiation are
totally unavailable to procure justice for outrages upon American citi-
zens, unless accompanied by use of means of coersion.

It is no consolation to these claimants that they are one of several
hundred in like condition.

I have the honor to be, very respectfully, your obedient servant,

H. 8. SANFORD.
Hon. Lewis Cass,
Secretary of State.

AN ACT to authorize protection to be given to citizens of the United States who may -
discover deposits of guano.

Be wt enacted by the Senate and House of Representatives of the
United States in Congress assembled, That when any citizen or citizens
ot the United States may have discovered, or shall hereafter discover,
a deposit of guano on any island, rock, or key, not within the lawful
jurisdiction of any other government, and not occupied by the citizens
of any other government, and shall take peaceable possession thereof,
and occupy the same, said island, rock, or key, may, at the discretion
of the President of the United States, be considered as appertaining
to the United States: Provided, however, That notice be given by such
discoverer or discoverers, as soon as practicable to the State Depart-
ment of the United States, of such discovery, occupation, and posses-
sion, verified by affidavit describing said island, rock, or key, and the
latitude and longitude thereof, as near as may be, and showing that
such possession was taken in the name of the United States, and that
satisfactory evidence be furnished to the State Department that such
island, rock, or key, was not, at the time of discovery thereof, or of
the taking possession and occupation thereof by the claimants, in the
possession or occupation of any other government, or of the citizens
of any other government.

Suc. 2. And be it further enacted, That the said discoverer or discov-
erers, or his or their assigns, being citizens of the United States, may
be allowed, at the pleasure of Congress, the exclusive right of occupying
said islands, rocks, or keys, for the purpose of obtaining said guano,
and of selling and delivering the same to citizens of the United States
for the purpose of being used therein, and may be allowed to charge
and receive for every ton thereof delivered alongside a vessel in proper

‘

240 AVES ISLAND.

tubs within reach of ship’s tackle, a sum not exceeding eight dollars
per ton for the best quality, or four dollars per ton in its native place
of deposit: Provided, however, That no guano shall be taken from
said island, rock, or key, except for the use of the citizens of the Uni-
ted States, or of persons resident therein, as aforesaid: And provided
also, That said discoverer or discoverers, or his or their assigns, shall
first enter into bonds, with such penalties or securities as may be re-
quired by the President, to deliver the said guano to citizens of the
United States, for the purpose of being used therein, and to none
others, and at the price aforesaid, and to provide all necessary facilities
for that purpose within a time to be fixed in said bond. And any
breach of the provisions thereof shall be taken and deemed a forfeiture
of all rights accruing under and by virtue of this act.

Sec. 3. And be it further enacted, That the introduction of guano
from such islands, rocks, or keys, shall be regulated as in the coasting
trade between different parts of the United States,,and the same laws ~
shall govern the vessels concerned therein.

Sec. 4. And be it further enacted, That nothing in this act contained
shall be construed obligatory on the United States to retain possession
of the islands, rocks, or keys, as aforesaid, after the guano shall have
been removed from the same.

Sec. 5. And be it further enacted, That the President of the United
States is hereby authorized, at his discretion, to employ the land and
naval forces of the United States to protect the rights of the said dis-
coverer or discoverers or their assigns, as aforesaid.

Szc. 6. And be it further enacted, That until otherwise provided by
law, all acts done, and offenses or crimes committed, on every such
island, rock, or key, by persons who may land thereon, or in the
waters adjacent thereto, shall be held and deemed to have been done
or committed on the high seas, on board a merchant ship or vessel
belonging to the United States, and be punished according to the laws
of the United States relating to such ships or vessels and offenses on
the high seas; which laws, for the purposes aforesaid, are hereby
extended to and over such islands, rocks, or keys.

Approved August 18, 1856.

POINTS ON SPECIAL REPRISALS.

1. Special letters of reprisal are, in time of peace, means of redress
allowed by the law of nations to a State for injustice by another State.

2. A resort to such remedy by the injured State is, in a rightful case,
entirely consistent with a state of peace, and does not justly constitute
a casus belli. | .

3. Such resort may be had, as well to obtain just redress for a citi-
zen or a subject who has been wronged, as to obtain reparation for
injuries directly to the State.

4, Such reprisals may be made, as well for the unlawful acts of indi-
viduals of the State complained of, as for the acts of such State itself
by its authorities.

AVES ISLAND. 2QAT

5. Such a remedy may be rightly adopted by a State in behalf of its
citizens or subjects, whether the injury complained of be the withhold-
ing of a just debt to its citizens or subjects, or the denial or unreason-
able delay of justice to such citizens or subjects of the State against
which it is used, to the persons or the property of the citizens or sub-
jects of the State adopting such remedy.

6. Such remedy should not be used in a questionable case; a claim
should not only be manifestly just, in res minime dubia, but there must
be a clear and open delay of justice or denial of right.

7. The claim should be fully presented to the State complained of
by the State alleging the wrong, and a request made that justice be
done, and a reasonable time allowed, according to the circumstances,
for the reparation of the alleged wrong, or for the answer of such State
to the demand made.

8. If the complaint be the unreasonable delay or denial of justice
in relation to a debt, all the legal remedies allowed to the claimant
must be sought by such claimant before the application to his govern-
ment for reprisal; and it must be shown that such debt is certainly
and manifestly due.

9. If the demand be for damages sustained by violence done to the
persons or property of a citizen or subject of the complaining State by
the authorities or citizens or subjects of another State, the claimant
must produce full proof to his own State of all the circumstances of the
case, and of the wrongs and injuries sustained and damages incurred,
which ought to be forthwith submitted to the State complained of, in
order that it may adduce rebutting or explanatory evidence ; and that
if the authorities of the complaining State, after a careful and impar-
tial consideration of all said testimony, still regard the case as one to
be prosecuted by special letters of reprisal, they should, by such pro-
cess as may be devised to attain an enlightened, impartial, and just
decision, (of a judicial character, if practicable,) ascertain and adjudge
the amount justly due, and the character and extent of the satisfaction
to be required, and forthwith notify the State complained of thereof ;
and that if, within a designated reasonable time, it still refuses or
fails to do justice, the complaining State, on such continued refusal or
failure, after such time, may issue special letters of reprisal against
the property of such delinquent State, and against the property of the
citizens or subjects, in order to obtain satisfaction for such injuries.

10. Special letters of reprisal are in the nature of a national
distress-warrant, and authorize the seizure and detention of the prop-
erty of the citizens or subjects of the delinquent State, as well of the
property of such State itself, to be brought in and detained asa pledge,
and disposed of under judicial sanction, and the proceeds to be first
applied to the payment of the reasonable expenses incurred thereby,
and next to the satisfaction of the claim, and the surplus to be returned
to the State complained of.

11. The State granting such special letters of reprisal may issue
them to those of its citizens or subjects who claim redress, upon such
conditions and restrictions as it may deem proper to prevent the un-
lawful use thereof; and it should in all cases exact a caution and

Ex. Doc. 10 16

242 AVES ISLAND.

surety from the party demanding such letters to respond in damages
to any person illegally damnified by the abuse thereof, and also to all
persons injured thereby in any manner whatsoever; or, if it should be
subsequently made to appear that said party has fraudulently made a
false or exaggerated statement of his claim, and misled the authorities
of the State into the granting of such letters. And the State granting
such special letters of reprisal may, at its option, direct that they be
executed by the citizens who are the claimants, and by officers, also
citizens, appointed by the claimants, and by the private armed vessels
of such citizens ; or it may direct that the same be executed under the
supervision of officers of its regular navy, or such letters may be issued
immediately to such officers, and the execution thereof may be directed
to be made by them, and in a public ship-of-war.

12. Special letters of reprisal can only be granted by order of the
sovereign of the State, or that branch of the public authority to which
the power of directing the intercourse of such State with other States
is entrusted. .

13. Until diplomatic action has been had, and has failed to cause
justice to be done, such letters ought not to be granted, except in
extraordinary cases, marked by circumstances of great atrocity.

14. The right to make private property the subject of special repri-
sals is founded upon the principle that each member of a State is bound
for the labilities of his State, and that it is not unjust to collect such
hability from him, insomuch as, in such case, he has full resort to his
State for indemnity, and to his fellow-citizens or subjects to make
contribution.

15. To deny justice is injustice, and unnecessary delay is equivalent
to adenial. Justice is every man’s right by the jus gentiwm, which
is therein agreeable to the natural law, as well as to the civil law and
the common law; and such unreasonable delay of justice by a State to
a citizen or subject of another State will, after diplomatic request and
expostulation, if the case be manifest and undoubted, justify the issu-
ance of special letters of reprisal, equally in the case of debt as if the
wrong complained of was a tort. |

16. It is the duty of the authorities of a State, when one of its citi-
zens or subjects is wronged by another State, to espouse his cause and,
if need be, to constrain the aggressor to make a just reparation ; for
otherwise individual security, the great object of every political asso-
ciation, would not be obtained.

Mr. Sanford to Mr. Cass.

Derrpy, CONNECTICUT,
August 16, 1857.

Siz: The inclosed brief on special reprisals as a rightful and peace-
ful remedy in the case of Philo 8. Shelton and Sampson & Tappan for
the outrage perpetrated by Venezuela at Shelton’s Isle in 1854, is
submitted for the consideration of the department.

I trust the department will recollect that in this case, at this time,
for the issuance of letters of reprisal on the demand heretofore made
of the Venezuelan government by the United States under the treaty,

X

- AVES ISLAND: 243

we only ask that a letter of request, of the character heretofore indi-
cated in my letter of the 10th instant, may be sent open to that gov-
ernment, with copies of all the proofs duly authenticated by such
person or in such mode as the department may deem proper, which
letter of request, (lettre de requéte) according to the formula of estab-
lished precedents, should designate a reasonable time (and the claim-
ants think thirty days amply sufficient) within which Venezuela should
make satisfaction of the claim to the claimants, or conceding the lia-
bility, leave the question of amount to be ascertained and determined
by the United States, according to the law of nations.

If this be done, and it should be deemed necessary that any general
or special legislation regulating the mode of procedure in cases of

- special reprisal is dispensable to enable the executive to act, this case

may then be back in time to be submitted to Congress at next session, in
order to procure such law. If the time for answer is not limited, and
further delay is allowed, the case cannot be so returned in season for
congressional action.

I have the honor to be, with great respect, your most obedient ser-
vant,

H. 8. SANFORD.

Hon. Luwis Cass,

Secretary of State.

P.S8. Full extracts from the authorities referred to in this brief, and
most of them translated, (for another object,) can be forwarded to the
department for its temporary use in reference, (to be returned when
requested, and to be kept exclusively in charge of the department till
returned,) if it is desired, as facilitating its investigations.

A ASibs

Us.

P.S. SHELTON AND Sampson & TAPPAN,
+ Claim for indemnity.
|
1

THe Repusiic or VENEZUELA. J

Brief, by claimants, on application for ‘‘lettre de requéte,’’ and special
reprisals for spoliation at Shelton’s Isle in December, 1854.

In the ‘‘ Points’’ submitted with the letter of the 10th instant, no ref-
erence is intended to be made to what are designated ‘‘ general com-
missions of reprisals,’’ or ‘‘letters of marque,’’ sometimes called ‘‘ex-
traordinary letters of reprisal,’’ as contradistinguished from ‘special
or ordinary letters of reprisal in time of peace.’’ The difference be-
tween the two remedies, and the distinctions between the cases in which
they are respectively appropriate, are all settled by the approved
authorities upon international law. Sciolistic essayists, and those
authors whose want of legal acumen and discrimination and limited
research have restrained them from referring in any but general terms
to reprisals, have often confounded these different and distinct; whereas,
in their character, objects, mode of procedure, results, and effects, they

\

244 AVES ISLAND.

are as different as is the ‘‘ right of visit’’ from the pretended ‘right
of search.”’ ,

I. In the exposition of the jus gentiwm, it is a great misfortune that
so much difficulty is encountered in meeting in many works, loose,
general theories, advanced by authors who seem wanting in the faculty ~
of analysis and power of discrimination, and devoid of that experience
necessary to perceive the true results and effects of their visionary
Utopian theories. For instance, certain modern writers (rather con-
troversal essayists than jurisconsults) and some military or naval
officers, who deem themselves competent to expound the principles of
international law—but who seem to have a superficial idea of the law
of reprisals, ‘‘ordinary’’ or ‘‘extraordinary,’’ ‘‘special’’ or ‘‘ gen-
eral,’’ and confounding them as before observed—have denounced them
both as quasi acts of war, or as tending to war, and as remedies of an
‘obsolete’? character, and more in harmony with the jus gentiwm as
it prevailed in ancient times, than as ameliorated and improved by
modern progress. As it relates to extraordinary or general reprisals,
we concede that they are often acts that tend to war, and are ‘‘a kind
of imperfect war,’’ but with reference to special or ordinary letters ot
reprisal, in their character, objects, and effects, they are emphatically
preventives of war; and because they are such preventives is it that
the right to issue them should be maintained, and in proper cases en-
forced. Witheut them, if diplomatic negotiation fails to effect repa-

- ration for wrong, war is the only alternative.

Special, or ordinary letters of reprisal, are the appropriate remedy
for a wrong to the individual subjects of a State to effect redress.

General or extraordinary commissions, or letters of marque and re-
prisal, are the appropriate remedies for an assault or wrong to a State,
other than those committed against a State through its citizens.

Several theoretic writers upon the continent of Europe refer to the
law of reprisals, special and general, as existing anterior to the era of
Roman power; but the distinction between such special and general
reprisals was not, in ancient times, so clearly defined as in later days,
and for the reason that, in those times, the power of governments and
the rights of feudal leaders were not so definitely limited and estab-
lished, and often the latter exercised the attributes of sovereignty since
acknowledged to belong only to established governments.

It is, however, a gratification to advert, on this subject, to the writ-
ings of the ancient sages of the common law of England. So early
as the eleventh century, the principles upon which the law of special,
as well as of general reprisals, are founded, and the formula for the
execution of that law, are all distinctly and forcibly set forth in the
records ef English jurisprudence which have come down to us; nay,
in the great charter these principles are announced as among those,
adherence to which was assured by the King in that compact, (vide C.
29, 2 and C. 30, 2,) and the reference to the ‘‘ ancient’’ and established
customs and laws of the realm therein made, including the custom and
law of special reprisals.

The remedy of special reprisals in behalf of a subject who has sus-
tained wrong from a foreign State is in the nature of an attachment or
distress warrant, or capias ad Withernam against the property of an

AVES ISLAND. 245

offending delinquent State, and hath been held to be a writ of common
right, not to be ‘‘denied,”’ or ‘‘withheld,’’ or ‘‘delayed’’ to any ‘‘free-
man.”’

Several ancient English statutes prescribe and regulate the mode of
procedure by a subject to obtain such suit.

‘‘Commissions or letters of general reprisal or letters of marque’’
rest more completely in the discretion of the executive power, and in
which those cousiderations of prudence and expediency often controlling
the intercourse between nations (waiving strict rights) have governed
‘ordinary or special letters of reprisal,’ being, as before observed, in
the nature of a judicial process, to which the subject is entitled of right,
such considerations should not, except in extraordinary cases, be allowed
controlling influence.

And to the honor and glory of England it may be said, that from
the time of Magna Charta no instance is known to have occurred in
which her monarchs have hesitated to exert the royal authority in
behalf of a subject seeking just redress from a foreign State by the use
of a ‘‘special letter of reprisal.’

A memorable case, a worthy example to all governments, occurred
during the time of the Lord Protector CroMwELL, and is related by
British historians with pride, though a celebrated French writer styled
it ‘‘insolent justice.’’

An English Quaker having had some property seized by the French
in the time of Cardinal Mazarin, and meeting with no success in his
efforts to procure reparation from that government, called personally
on CROMWELL and made his complaint, who, after hearing him, gave
him a letter to Mazarin, and told him to deliver it in person, and to
wait three days for an answer and then return. Receiving no answer
on his return, Cromwell issued a ‘‘special letter of reprisal’’ and seized
a sufficiency of French property to indemnify the English Quaker.
The French acquiesced in the peaceful remedy.

It is true that, in 1752, when the law of special reprisals was applied
to Great Britain by the King of Prussia in the celebrated Silesian loan
case, the British court illustrated the moral of that famous fable of
AXsop in relation to the bull goring the ox, in a way not uncommon
with that power, by objecting to this application to her, and since that
case it may be noted that some British publicists seem disposed to adopt
the doctrines of Sir Dudley Ryder, Lord Mansfield, and the Duke of
Newcastle in their correspondence with the Prussian minister, repu-
diating principles before then maintained by every British writer of
established reputation. It may be said, however, that the sequestra-
tion by the King of Prussia of the money due to British merchants on
the Silesian loan for the capture of Prussian vessels by the British, for
an alleged violation of neutrality, was a case of some doubt, especially
insomuch as the parties injured had full redress in the prize or admi-
- ralty courts of Great Britain, into which the captured property had to
be taken, and which had full judicial power to award damages for an
illegal capture. Nevertheless, though the fact (as it is conceived from
false notions of what was the true glory and honor of that country) is
- concealed by every British author who has adverted to the case, the
British government ultimately yielded to Prussia, and adjusted the

246 AVES ISLAND.

damages due to the Prussian subjects on account of the capture referred
to, and the King of Prussia released the reprisals. Annexed hereto:
is a copy of a dispatch from Lord Holderness to Mr. Mitchell, dated
May 11, 1756, showing such to be the fact, and which the counsel for
claimants in investigations on the subject of the law of reprisals pro-
cured from the British foreign office by permission of Lord Clarendon.

A memorandum of British authorities is annexed. If reference be
made to those authorities, what is above stated in respect to ordinary
and special, or extraordinary and general reprisals, will be found
fully sustained by them.

Viner, 5, 18; quoting Molloy, ch. 2, § 57, and ‘‘ 2d General Treatise
of Trade, 211.”’7 1F. N. Br., p. 114. 2 Co. Inst., 56, 204, 205.
A Co. Inst., 124, 125, 137. 1 Hale’s Hist. Pl. of Crown, paiie2ziaal
Ward’s Law of Nations, c. 9, p. 294. 3 Hallam’s Middle Ages, c.
10, pt. 2, p. 332., Stephens’ Comm., vol. 2, book 4, pt. 1, § 4, p. 515.
1 Blackstone’s Comm., c. 7, p. 259, E. ed. 2 Brown’s Civil and
Adm. Law, c. Typ. 334. Wildman’s Institutes, p. 186, et seq. Pol-:
son’s Law of Nations, p. 37. Chitty’s Law of Nations, p. 73, e¢ seq.
3 Phillimore, c. 2, p. 11, &e.

In France the same principles have been sedulously maintained since:
the tenth century, and the forms and mode of procedure of French.
subjects asking the interposition of their government by special letters.
of reprisal, have been regulated by the royal ordinances of marine.
See the French authorities cited in the list annexed, (ut passim.) See
also the American authorities, and see several treaties between the
United States and other nations recognizing special reprisals. (8 U.S. -
Statutes at Large, et seq., published laws, &c.) See also European
authorities cited in lst, and many treaties, ancient and modern, be--
tween European States recognizing such right therein referred to.

Not a publicist of repute, prior to the middle of the eighteenth
century, questioned the right to issue special letters of reprisal under
the law of nations, and that it was a peaceful remedy and preventive,
instead of a cause, of war. In numerous treaties between continental
States the right was recognized and regulated; and England has also
sanctioned it in the same way. Itis true that some few modern the-
oretic assayists of the character described in the commencement of this
brief, confounding special with general reprisals, have referred to
both as an ‘‘ obsolete’ remedy, an ‘‘ ancient practice not recently fol-
lowed,’’ and one of whom quite sagaciously insists that to justify its
use, there ought to be ‘‘in every case a recent treaty’’ between the
complaining and delinquent States recognizing it. Some of these
writers seem as much at fault in their opinions as to what is the law
of nations, as with respect to their opinions, as to what ought to be
that law. . One of them just referred to (Sir James Reddie) has written
three volumes about international law, (and writers upon it,) the
principal object of which books seems to have been to maintain the
British doctrine, hostile to neutral rights, of ‘‘the flag not covering
the cargo,’’ and to berate all who maintain the principle of ‘free
ships, free goods.’’ His inconsistency is manifest in condemning
reprisals as ‘‘ancient’’ and ‘‘obsolete,’’ and his contending that the
doctrine of ‘‘the flag not covering the cargo’ is the true doctrine,

AVES ISLAND. 247

because it was the doctrine of the ‘‘ time-honored’’ Consulato del Mare
of the eleventh century. As England in 1856, by the convention of
Paris, agreed that if such principle of ‘‘the flag not covering the
cargo’ had been the law it ought not to be any longer, it is presumed
he would not now insist that those opinions ought to be completely
yielded to by others.

But upon this subject, and as a conclusive answer to all the objec-
tions about this remedy being ‘‘ obsolete’ and having ‘fallen into
disuse among civilized nations,’’ &c., the treaty of 1836 between Ven-
ezuela and the United States is decisive. It recognizes and sanctions
the resort to the precise remedy of special reprisals; it provides for
resort to that remedy, in proper cases, instead of other remedies given
by the law of nations, to either State injured in the persons or prop-
erty of its citizens. In providing for the resort to such remedy, it is
important to observe that the provisions of that treaty not merely
regulate, but are, all of them, in restraint of its exercise, whilst it
clearly and unequivocally recognizes its legitimacy. (See Art. 34 of
Treaty, 3d clause, 8 Stat. at Large, p. 482.)

Yet we do not rest the right to special reprisals upon this treaty.
We place it upon the universal law of nations.

Suggesting the idea that a State may not pursue the remedy of special
letters of reprisal unless a ‘‘recent treaty’’ with the State against
which such letters are issued, we conceive to be an arrant blunder.
The right of a State to adopt such remedy to obtain satisfaction for
injuries by another State, and in order to avoid a resort to declared and
general war, rests upon the well established principles of the law of
nations, and not upon treaties allowing it. ‘Treaties between States
may regulate the exercise of such right by these States as to each other ;
may restrain or agree to abandon or prohibit the resort to such remedy
by either against the other; but the absence of a convention on the
subject in no wise impairs the right to have recourse to a remedy so
founded upon the ancient and approved customs and rules of interna-
tional law. Empirics as to international law and international mo-
rality have always endeavored to cut off what they thought excresences,
and to patch up what they considered rents in the science of interna-
tional law in various ways, some by treaty, and some by denying
ancient principles and rules; but the same class of persons, whensoever -
any of their favorite notions are assailed by the provisions of a treaty,
are loud in their denunciation of the impolicy of the removal of the
ancient landmarks of the jus gentiwm.

All publicists allow that treaties altering or restraining ancient laws
or customs are not to be regarded with favor, and age to be strictly
construed. 1 Reddie, p. 173. 2 Wynn’s Jenkins, p. 759. 1 Molloy,
book 1, chap. 5, note to § 12. 2 Burke’s Works, p. 521.

No difficulty can arise from the non-existence of a treaty prescribing
the formula of procedure, or the cases in which the remedy may be
adopted. The cases in which it is proper to resort to such remedy,
and the general modes of procedure, may be readily ascertained by an
examination of the authorities above referred to, and no difficulty can
ensue as to the application of the principles on which this remedy is.

248: © AVES ISLAND.

based, if the State preparing to adopt it, whilst it refuses to submit to’
wrong, asks for nothing that is not right. ;

Those writers who advance the opinion that the resort to special
reprisals is ‘‘obsolete,’’? must have omitted to advert to the constant
exercise of the right to resort to such remedy by Kuropean nations up
to this day, shown by the numerous cases which have occurred even
within the last decade, and some of which are referred to in the works
most recently published on the laws of nations. 1 Cussy, Phases et
Causes Célébres, p. 126; 2 ib., p. 56,486. 3 Phill. Comm., p. 11,
&c; ch. II., §§ 22, 23, &c. Hazlett & Roche’s Manual, pp. 89 to 96.

The right is founded upon the immutable principle of the law of na-
tions, that every sovereign State possesses the right to redress its
wrongs by just means, and this particular remedy has been adopted to
avoid the necessity of a resort to war. A sound and just principle
cannot die. It might as well be contended that because a State has
long maintained peace, she lost the right to resort to war; that such ~
just right and remedy had become ‘‘obsolete.’’ It might as well be
said that because a State has failed in the fulfillment of the duty of
protecting its citizens or subjects, (reciprocal upon their allegiance.)
therefore her right to do so when she becomes awakened to a just sense
of that duty, could not be exercised, because the practice had with her
‘‘fallen into disuetude,’? and thence ‘‘become obsolete.’? Special
reprisals are not ‘‘obsolete.’’ The law of nations allows and sanctions’
them. They are recognized by numerous treaties, ancient and modern,
and constant practice to this day maintains them. And with refer-
ence to the government of the United States this remedy is peculiarly
appropriate. It is a remedy for the protection of the citizen. As to
those governments administered more for the benefit of the rulers than
for that of the people, there may be reasons for its abandonment, by
those rulers, that do not exist with the functionaries of the federal
government of the United States. There are a class of naval and mil-
itary persons who look to open war as the proper remedy in all cases
of wrongs by a State, and these may deride this conservative remedy ;
And some diplomatists may think there is greater superiority and effi-
‘cacy in protracted negotiation and reiterated remonstrance, voluminous
correspondence and interminable discussion, than in ‘‘special repris-
als;’’ and some may regard arbitration (even against all experience)
as the most certainly just remedy, and as the most easy and effectual.
But it is enough to answer all these suggestions by urging the right
of the injured citizen to insist that recourse shall be had in his behalf
to the admitted law of nations, and the established practice under it,
and to cite the course of one of the most illustrious chief magistrates of
this confederacy (General Jackson, in 1834) against one of the most
formidable powers in the world, maintaining all we contend for.

Ij. That special reprisals are appropriate and consistent with a state
of peace, and, if justly resorted to, do not constitute a casus belli, or
tend to war, is fully proved by the authorities, British and European,
and also American.

All the confusion existing on this point is attributable to the con-
founding ordinary and special reprisals, in time of peace, with extraor-
dinary and general reprisals, or letters of marque, in time of war, or

AVES ISLAND. 249

immediately preceding it, which latter are in themselves a kind of
informal war. 1 Molloy, (c. 2, § 8,) says: “‘The granting of letters
_of reprisal does not, in the ordinary way, for particular satisfaction,
amount to the breach of the peace.’’ (3 Phill., c. 2,p. 11. 1 Kent’s,
p. 61. 1 Le Page’s Elements, p. 326. Valin, Comm. on Art. 1 of
Ord. of 1681, p. 414, &c. 2 Azune, p. 2,c.5,§9. 1 Elliot’s Deb.,
p. 110; 4 Ib., 458.) .

III. Special reprisals have been usually allowed to obtain redress for
a citizen or subject who hath been wronged, and general or extraordi-
nary reprisals, as before observed, are more appropriate for injuries
directly to a State; but it cannot be doubted that a State may direct
special reprisals for pecuniary injuries to itself in the same manner as
for injuries done to one of its citizens or subjects.

The authorities, also, sustain this position. 1 Massie, p. 138, § 131,
and authorities cited there, and those contained in list annexed ué
passim.

IV. The unjust, illegal, and injurious acts of individuals of a State,
equally as the acts of such State by its authorities, if no redress is given
against such offending individuals, constitute a proper cause for special
reprisals. (See same authorities.)

A State is liable for the acts of its citizens, if means of just redress
are withheld or not afforded against them to the injured party.

The citizens or subjects of a State are each and all liable per my e¢
per tout for the liabilities of a State; and, on the other hand, the State
is responsible for the acts of its individual members in so far as it does
yield just remedies for redress against them to an injured party. (Vat-
tel 6, 2, § 81, 82, 342, 344. Grot. 6, 3, c. 2, p. 538. Wildman, c. 5,
p. 187. Felice, v. 12, p. 178. 5 St. Edme, p. 270. 1 Massie, p. 134,
emia De Garden 64, § 3, p. 229, &c. 92 Azuni, c. 5, a. 25-d5 7
Fath inst.; 516, 517, v. c ix, § 13.)

V. The withholding payment of a just debt from a State or citizen,
or subject of a State, or the denial or unreasonable delay of justice in
regard thereof, it is conceded, though it constitutes a case for special
reprisals, is not so strong a case as that where redress is sought for
illegal violence by the authorities or citizens or subjects of the State
against the persons or property of citizens or subjects of a State resort-
ing to such remedy. The English denied, in the Silesian loan case,
that reprisals extended by the law of nations to cases of debt, except
in cases of justice absolutely denied, first by tribunals, and afterwards
by the prince, and such denial must be in re minime dubia. (1 Reddie
R., 269. Contra W. Inst. c. v. p., as to limiting remedy to case,
violence, &c.) Precedents can be found, both of debt and of violence.
In case of debt, however, the creditor is bound to submit to the lex loci
contractus, and to the lex fori as administered by the State complained
of to and between its own subjects or citizens; and, if equal rights
are conceded, and the same remedies yielded, no just cause of complaint
exists. This principle cannot, however, apply in terms to cases of debt
due by a sovereign State, as in most countries such sovereignty cannot
be made a defendant in its own courts. In such case the complaining
State may resort, in limine, to special letters of reprisal to coerce the

250 AVES ISLAND.

fulfillment of an admitted obligation, for the enforcement of which no
other remedy exists except war. -

Cases of tort by a State are governed by the same rule, and so, also,
cases of tort by the individual subjects or citizens of a State without its
sanction or authority. Special reprisals should not be resorted to till
judicial remedies have been sought in vain, for it is only when such
remedies are withheld or denied that such State is responsible for the
acts of its individual members, though this rule does not apply in cases
of tort, even if criminal acts, when they are avowed by the State as
committed under its authority. (See authorities in the celebrated
McLeod case in New York.)

VI. The doctrine that the claim for which ‘‘special reprisals’’ are
sought must be manifestly just and without doubt, is unquestionably
reasonable; but this rule doth not apply, and cannot, in the nature of
things, be made to apply, in cases of tort, to the precise amount
claimed by the party injured, or to anything beyond the right to dam-
ages to some extent. Such damages are more or less uncertain in all
such cases, until final investigation and adjudication, and in such
cases where special reprisals are granted, as hereinafter is fully shown,
the delinquent State is fully protected in the judicial proceedings for
the trial and condemnation of the property seized under the letters,
and the ascertainment of the amount of damages justly due by judicial
authority, and the resort to the caution with security exacted from the
claimants to respond in damages for any injury sustained in conse-
quence of an extravagant and unreasonable demand, or for any abuse -
of the letters of reprisal. The ordinary rule in England is, to receive
‘“the oath of the party injured, or other sufficient proof touching the
pretended injury, and of the certain loss and damage thereby sus-
tained.’’ (See 1 Molloy, c. 2, § 6; Viner’s Abr., 17, &c.) If the cir-
cumstances be of a corroborating character, the oath of the party is
deemed prima facie true, and it 1s held will justify the granting of the
letters of request, and even the issuance of the letters of reprisal,
which rests in the discretion of the king.

(See, also, Valin Comm on Art. 1 and 5 of Tit. X. of Ord. of 1731,
(before cited,) as to preliminary proof of wrong, &c., page 414, &c.)

It seems by the precedent in Molloy of the letters of special reprisal
granted to Turner e¢ al., that without any express statute directing or
authorizing it, a preliminary reference was had to the admiralty
court to assess the damages.

In this case, we have furnished the testimony of several competent
disinterested witnesses, and also documentary proofs of the act of
violence, and of the damages also.

VII. The lettre de requéée is the incipient step to letters of special
reprisal. Forms are to be found in the ancient English registers, in
FE. N. B., in Rymer, and other books of historical and legal docu-
ments, and are referred to by modern English legal authors. Ordi-
narily they state merely the circumstances of the case and request that
justice be done, and designate a reasonable time, according to circum-
stances, for reparation to be made, or for the answer of the State com-
plained of to be given, and formerly the proofs were not usually com-
municated with such letter. Indeed no recorded case can be referred

AVES ISLAND. 251

to in which such proofs were transmitted. By the treaty between the
United States and Venezuela, however, it is required, (see Cl. 3, of
Art. 34, of treaty of 1836, 8 Statutes at Large, p. 842,) as in many
other of our treaties with the Hispano-American Republics, “ that
neither of the contracting parties will authorize or order any act of
reprisal, nor declare war against the other, on complaints of injuries
or damages, until the said party considering itself offended shall first
have presented to the other a statement of such injuries or damages,
verified by competent proofs, and demanded justice, and the same
shall have been refused or unreasonably delayed.’’

In this case, the proofs in the schedule below have been communi-
cated to the State Department of the United States by the claimants
for transmission to the government of Venezuela, at the dates therein
designated. If heretofore communicated to it, (and there is no reason
whatever for any portion of them being withheld,) the treaty has been
complied with; but if they have not been fully communicated to the
Venezuelan government, and if any part of them has been suppressed,
the omission, it is submitted, must be supplied by annexing the same
to the letter of request, in order that the terms of the treaty may be
complied with by the United States.

Such proceeding is proper, in order that the State complained of
may be apprised precisely of the alleged wrong, and have an oppor-
tunity to adduce contrary or explanatory proofs.

In this case, two years and a half have been spent fruitlessly in
applications for redress, in remonstrance, in correspondence, and other
efforts, to procure the adjustment of the case without resorting to any
harsh course. Venezuela is fully apprised of all the circumstances of
the case, both as to facts and law. They have all been made public
by the Senate of the United States. (Sen. Ex. Doc., No. 25, 3d Sess.
34th Cong.) The letter of request, in this case, ought to exact an
adjustment within a brief period. (See, as to time, Wildman, Inst.

of Int. Law, c. 5, p. 190, and cases there cited designated by treaty,
&c., &.)

AVES ISLAND.

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254 AVES ISLAND.

VIII. As a State is in nowise liable for the debts of its individual
citizens, except in so far as it denies a creditor justice against such
debtors, it follows that a resort must first have been had by a creditor
to all such remedies as are allowed him by the State complained of
before applying to his own government for special reprisals, and the
amount of debt claimed must be shown to be clearly due in re minime
dubia. (See authorities above referred to.)

TX. It will be noticed that in the points preceding this argument
it is conceded that if satisfaction is not accorded agreeably to the
requirements of the lettre de requéte, in a case of damages for a tort, the
complaining State, before it issues letters of special reprisal, ought,
for the prevention of injustice ex abundante cautela, for its own satis-
faction, direct an inquisition of a judicial character, if practicable, for
the ascertainment of the true damages. There is a similar require-
ment in the ancient ordinances of marine in France, and most other
States pursue an analogous practice in relation to special reprisals.
(See article 1, Ordinances, page 1681, referring such preliminary in-
vestigation to the courts of admiralty on petition. See Sea Laws.)
No one can question the power of any government to direct such
inquisition for its own satisfaction before it will act by granting the
letters demanded. Nor can the competency of the executive of a
government be questioned to indicate a form of such procedure assimi-
lating (cy pres) to the proceedings of a judicial tribunal. Similar
directions are constantly made by this government in various cases, as
necessary to effect the purposes of justice, and to prevent those who
administer the government from being misled. :

It is not contended that such inquest of damages is conclusive; it is
a precautionary measure to prevent injustice, and for the satisfaction
of the government itself, and neither the claimant nor the government
complained of can except to it, for it is a measure of prudence with
reference to one and of security with regard to both.

The true amount of damages is subsequently, upon the execution of
the letters of reprisal, judicially determined, and adjudged upon judi-
cial proofs and investigations, and before this appointed tribunal all
parties can be heard. The question of the right to issue reprisals, of
the proper and legitimate exercise of the executive function, in re-
sorting to that remedy on behalf of claimants, is the only question
which is not permitted to be contested in such court. The question of
damages, and all questions as to any alleged. abuse of the letters, are
rightful subjects for its investigation and decision; and, under the
law of nations and under the practice of nations, the admiralty or
prize courts of the State giving such letters of special reprisal, are the
proper tribunals to make such decision. When property is seized by
virtue of the letters of reprisal, it must be brought ¢nfra presidia so
soon as possible, according to the rules observed with respect to cap-
tures in time of war by public ships or by private armed ships with
commissions of general reprisal or letters of marque. (See 1 Kent,
p. 62; Wheaton’s Hist., § 12, p. 108; Valin’s Comm. on Arts, 1 and 5,
Tit. X, of Ord. of 1681. See, also, Molloy, before cited, Form of Letters
of Reprisal, &c., p. 53, also § 21.)

_AVES ISLAND. 255

All the proceedings subsequently are judicial by libel or information,
according to the practice of these courts.

And it may be observed, that, whilst the English statutes and the
French ordinances and Spanish regulations and those of other coun-
tries all prescribe similar rules conformable to the law of nations, yet
they are all merely directory, and if they did not exist the general
laws and practice of nations, and rules of judicial proceeding adapted
to such remedy, would be all-sufficient. They are merely self-im-
posed restraints by a government upon itself and upon the acts of its
own officers, rather than being per se rules of the jus gentium, though
in conformity with the latter.

The English common law writers, as well as the international pub-
licists of that nation, all contend that the early English statutes reg-
ulating the issuance of special reprisals, did not either strengthen or
impair the royal (executive) authority, under the law of nations, to
issue such writs, and that these statutes are merely directory regula-
tions in regard to the exercise of such authority by the administrative
officers.

In Viner’s abr. before cited, [II,] it is said, (referring to the ancient
British statutes as to proceedings to obtain special reprisals,) ‘‘letters
of reprisal were granted long before the statutes by the kings of Eng-
land, by virtue of their prerogatives, nor was the king’s prerogative
in the least diminished by them, but remained at common law, (gen-
eral treaties of trade, &c., 212,) and this statute does in no respect
restrain the king’s prerogative and authority which he had at the
common law in judging the conveniency and time when to be exe-
cuted.’’ Vgner cites Molloy, 30, cap. 2,§9. Molloy, b. 1, c. 2, §§ 7
and 8, referring to the statutes of King John, of Edward III., and
Henry V., and Henry VI., says (§ 7,) that letters of reprisal ‘“‘ may
issue not only by the jus gentiwm and civile, but by the ancient munic-
ipal laws of the kingdom ;”’ and (§ 8,) that the statutes are made ‘for
the subject and letters of reprisal, they being granted long before the
statutes, and the king’s prerogative not the least diminished, but re-
maining at the common law to judge when expedient.”’

Stephens, in his Comm., before cited, p. 264, pt. 1, § 4, p. 515,
says: ‘‘As the delay of making war may sometimes be detrimental to
individuals who have suffered depredations from foreign potentates,
our (the English) laws have in some respect armed the subject with
powers to impel the prerogative by directing the ministers of the
crown to issue letters of marque and reprisal upon due demand,” &c.

Valin, in his Comm. on the French Ord. of 1681, as to special repri-
sals, p. 444, before cited, says ‘‘it is conformable to the law of nations
received among all nations; but further, it has perfected that law by
the wise precautions it has taken in addition to those that the author
of the Guidon, c. 10, had already demanded, to abate the excesses and
temper the rigor thereof.’’

Mr. Reddie, 1 Maritime Int. Law, 157, says: ‘‘It is but justice to
observe that the ordinance (1681) and the administration under it are,
in the great majority of rules and cases, in conformity with the natural
and common consuetudinary law of nations, and declaratory of the
principles previdusly recognized by the European nations,’’ and ex-

256 AVES ISLAND.

cepting the provisions in relation to neutral rights, that it is ‘‘an able
declaratory exposition of the common maritime international law of
EKurope.”’

And it has even been contended that letters of special reprisals issued
to an individual subject, for imjuries committed by a foreign State,
were not revocable by a domestic act, and even if a war intervened
before final execution, that they were not revoked by a subsequent
treaty of peace between the two countries till satisfaction was had
upon them,-and the power of the king to revoke such letters before
such satisfaction was had, was even questioned by some eminent Eng-
lish common law jurists. (See 1 Molloy, c. 2, § 8, as to revocations.
King vs. Caren, 3 Swan, 669. 1 Vern., 54, 55, parch., 1682.)

In the reign of Edward II., according to Lord Campbell in his
“‘Lives of the Lord Chancellors of England,’’ vol. 1, p. 205, the power
of issuing letters of marque and reprisal against a foreign State that
denied a delayed justice to Englishmen, resided in the high court of:
chancery, and those letters were in the nature of a judicial process,
and the property captured was detained as a pledge or security till
justice was rendered by the offending State.

The reasonable term in which an answer is to be required, of course
depends on the character and circumstances of the case, the contiguity
of the respective governments, &c. In Europe, as to ordinary cases
of spoliation, four or six months from the allowance of the application
from the injured party to his government is the longest term designa-
ted in which such answer should be made. (See Wildman Inst., ¢. —
5, p. 190,-&c.)

In the present case the spoliation was committed in J854, nearly
three years ago. Our claim for damages was presented to the Depart-
ment of State of the United States, January 15, 1855, so soon as we
became apprised of the outrage. We have diligently followed up that
demand for justice by reiterated applications to the same department
since that day, and by furnishing to it from time to time proofs by
depositions of numerous witnesses, and by documents of different
kinds, some obtained from Europe, all of which, careless of any advan-
_ tage the same might afford to Venezuela, we asked should be forth-
with furnished to that government. So unremitted have been our
efforts, that we have on more than one occasion received from the
department something like a rebuke for our importunity and for
cumulating such proofs unnecessarily, and in certain public prints we
have been reproached with ‘‘ pestering’ and ‘‘ bothering’’ the depart-
ment improperly with respect to our indemnity; and, besides all this,
we have, with the assent of the department, and, in fact, at its sug-
gestion, at an additional expense of several thousand dollars, dispatched
an agent to Caraccas to obtain, if practicable, a compromise of our just
claim and its settlement upon something approaching reasonable
terms, and yet it has not resulted in effecting any promise by Venez-
uela to indemnify us in any degree or any concession of their liability;
and, on the contrary, the government of the United States and our-
selves have as yet only received in answer the repudiation of our claim
- upon the most frivolous pretexts, coupled with indignity and insult to

the representative of the United States in relation to it.

AVES ISLAND. : 257

Under these circumstances, fully cognizant as Venezuela is of all

he facts of the case, and has been since the wrong was committed,
nearly three years since, apprised as she has been from time to time
of the proofs we have adduced, according tothe terms of the treaty of
1836, it is submitted that any further forbearance to her to enable her
to indulge her disposition to shuffle and equivocate, should be limited
to the time necessary to understand the character of the demand made
by the United States. And Venezuela should not only be peremptorily
required to admit liability to make indemnity, and to give assurance
of just satisfaction to the claimants, but with respect to the amount of
damages, she should be held to show to the satisfaction of this gov-
ernment that the amount claimed by us is exorbitant, and wherein
the same is exaggerated, and her willingness to pay what is not so
controverted by proofs to be promptly adduced by her. And upon
this point we contend that without indubitable proof so adduced, the
amount claimed by us, especially if previously determined by process
of ascertainment above indicated, must be regarded as the just amount
due.

Especially should this rule obtain, as such amount is not conclusive;
but, if it is proper, it may be reduced by deductions on the trial before
the judicial tribunals when the letters of reprisal have been issued and
executed by the seizure of property brought before such tribunal for
condemnation and sale.

' The idea of referring, lite pendente, the amount of damages to the
arbitrament of a third power, is not only derogatory to the dignity of
the complaining State, but it is vexatious and unjust to the individual
claimants, and is also inconsistent with all proceedings looking to the
issuance of special letters of reprisal as the ultimate remedy. It breeds
procrastination and delay, and causes great and unnecessary expenses
to the claimants. Itis the abnegation, by the complaining State, of
the rightful jurisdiction of its own judicial tribunals over the ultimate
decision of the question of damages with which such tribunals are
invested by the law of nations, and to the benefit of which its citizens
are entitled. They should not be deprived of that benefit (or advan-
tage if it be such) in such cases, and shuffled off by a reference to a
third power or party not administering justice under jadicial sanction,
and often subject to influences to which a court of justice is impregna-
ble, and affected by considerations other than the strict maintenance
of the principles of international law. It is an interference with the
regular-course of proceeding, and a departure from the rules sanc-
tioned by the practice of ages as best promotive to the ends of justice.
As well might a State abnegate the exclusive jurisdiction of its own
prize courts in time of war, under the laws of nations. and agree to
refer the decisions of questions of prize or no prize, or of any inciden-
tal question arising in the progress of a prize cause, to a third power
or person, as to refer this incidental question of the amount of dam ages
to such arbitrament. Such course, in the argument of Ryder and
Mansfield, on the Silesia loan case, it is declared would be ‘‘ manifestly
unjust, absurd, and impracticable.’’ (1 Reddie Int. Mar. Law, -p.
269. 1 Magens, on Insurance, p. 491.) Such procedure must be
founded upon the theories of the speculative philosophers of the era of

Ex. Doc. 10 ay

258 AVES ISLAND.

the French revolution, who vainly insisted that it was only necessary
to establish one supreme court of justice for the whole world to effect
the coming of the millenium and secure universal peace forthwith, but
who were never able exactly to agree upon the formula for the execu-
tion of the decrees of such august tribunal to effect their object, nor
neither have any peace societies since.

And here it may be observed (as is conceived not inappropriately to
this case) that this entire class of pseudo-philanthropic philosophers,
whether anti-war, anti-privateering or general reprisals, anti-capture
of merchant vessels in war, anti-retaliation or retorsion, or ‘‘anti-special
reprisals in time of peace,’’ all begin at the wrong end to effect the
consummation of their sublime wishes. To crown their hopes with
favorable success peace societies should alter their names, and style
themselves anti-quarrel, anti-spoliation, and anti-wrong and injustice
leagues, and adopt measures to effect the objects indicated by such
change. Prevention of wrong, and not the abolition or lessening of
the penalty for the commission of such wrong or weakening the means
of redress and of establishing right and justice, is the true course.
National injustice is the cause of all wars. War is, in fact, but an
effect of and result from such injustice. Prevent the cause and there
is no such effect. And this can only be done by enforcing the princi-
ples of right, and a respect for and adherence to them upon the
individuals who compose a nation or rule a State. War is a punish-
ment for national crimes. In every war one or the other State acts
wrongfully, and often both. There is no case of a war just on the
part of both. Asin civil society, so it is with respect to States, that
the least salutary of all modes of preventing crime is to abolish or
weaken and render ineffective the punishments therefor. It gives im-
punity to crime. Would it tend to prevent murder to provide that the
murderer should not be hanged or imprisoned, but merely censured or
reprimanded by the judge? If a State persists in injustice, what other
effective punishment than war, in ultima ratione, is there? How is she
to be constrained to do justice or make reparation? Will the rebuke
or reprimand of other nations suffice? Just in so far as the punish-
ments now allowed by the law of nations, and, it is believed, by the
divine law, are abated, and in so far as the means of redress now given
are weakened, will the apprehension of them be less likely to deter
nations from the perpetration of wrong. Who does not know that
the fear by merchants of the capture of their ships and goods by priva-
teers, and by public ships in war, and their consequent opposition to
war, is a powerful restraint to every commercial nation from engaging
in war? Abolish privateering and the capture of merchant ships in
war, and this commercial influence, now pledged by its interests to
peace, will not: be, as heretofore, exerted to preserve it.

The penalty for the commission of national crimes, it is admitted,
will be rendered less severe, but the effect of such exemption will also
be to make such punishment unequal with regard to the different classes
in a State, and likewise to make the means of reparation less coercive
against the delinquent nation, and therefore less effective in maintain-
ing justice and preserving peace.

If a new remedy is proposed in lieu of general war between people

AVES ISLAND. 259

of different nations, perhaps the most effective would be that suggested
by the Emperor Paul of Russia, in his famous letter written about two
thirds of a century since, viz: That in all cases of dispute between
nations the ministers of State of both, when they failed to adjust the
difficulty amicably, should be compelled to settle it by duel to the death
between themselves, and the people generally, often not interested,
should take no part, but remain at peace.

If special reprisals were abolished, or regarded as obsolete, spoliations
and injustice would be more frequent, for the efficacy of the means of
redresss would be weakened, and a cogent preventive abandoned. De-
stroy this remedy, and if a nation persists in injustice and wrong, gen-
eral war is the only resort. But why should the government constrain
claimants to abandon a plain judicial remedy and adopt any other un-
certain recourse? ;

Experience hath proved that the hope of effecting arbitraments is,
in most cases, illusory. Certainly the experience of the government
of the United States will not warrant the expectation of a speedy and
equitable and legal decision. Excepting the reference to the Emperor
of Russia, under the treaty of Ghent between the United States and
Great Britain, not a solitary case of arbitration by this government has
ever resulted in a decision that has been satisfactory as Just and rightful
to its citizens. The memorable award of the King of the Netherlands
with respect to the northeastern boundary, discarded by both parties
as absurd, is one instance in point of the practical inefficacy of such
mode of adjustment.

The General Armstong case, as to which the United States Court of
Claims has, since the decision of the then President of the French
Republic, decided that the United States were responsible to the claim-
ants for having failed to enforce just reparation from Portugal, not-
withstanding the decision of the arbitrator that Portugal was not
amenable, is another illustration of the little value of such arbitration.
There are many other cases in the history of our government of like
character. -

Cases of joint commissioners to ascertain damages, where there were
many and divers claimants, under treaty stipulations, have occurred,
and even these have failed in effecting justice, as 1s proved in the case
of the Mexican commission, under the treaty of 1839, Gn which ulti-
mate reference, in case of a difference in the joint commission, was had
to an umpire, a distinguished minister of a foreign power,) is an addi-
tional illustration of the worthlessness of such means of adjustment.
In this last case, the failure of the joint commission to do justice, and
even in some cases when aided by the distinguished umpire, is shown
by the fact that by the decision of the board of commissioners established
under the treaty of Guadaloupe Hidalgo, and in which proceedings the
United States and its citizens were the sole parties, thousands of dollars
were awarded to claimants under the treaty of 1839, to whom partial
justice only had been meted out by the joint commission !

In truth, the resort to arbitration, though a favorite means with
certain theoretic essayists and statesmen who indulge the fanciful idea
that they can better the rules and usages of the law of nations, sanc-

260 AVES ISLAND.

tioned by the wisdom of ages, may, perhaps, be well adopted in a bad
cause, but should never be consented to in a good one.

These claimants deem it due to themselves, and not disrespectful to
the government, to say that in view of the further procrastination and
delay consequent on the adoption of such mode of ascertainment of the
precise amount justly due to them, and in view of the great additional
trouble that would be caused to them, and in view, also, of the increased
expense to be incurred, they trust no such reference or arbitrament will
be consented to by the United States. .

The claimants suggest, as they conceive it is proper for them to do,
that the question of damage in this case should be investigated, as
before indicated, in some manner decided by the federal authorities and
for their satisfaction, after the formal letter of request is transmitted,
and prior to the issuance of letters of reprisal, and that the ultimate
investigation and+decision most appropriately and exclusively belongs
to the judicial prize tribunals upon the execution of such letters and
trial of the property seized thereon ; and they deprecate an abandon-
ment of the established rules and formula practiced under the law of
nations, as being unwise, useless, and uncertain, and creating great
delay and expense to them.

X. As before observed, special letters of reprisal are in the nature
of a national distress warrant, or a capias ad withernam, or writ of
foreign attachment, authorizing the seizure and detention of property
as a pledge to answer the just claims of the parties who obtain the writ,
to be proved by such parties before the court into whose jurisdiction —
the property is brought. It is an error to suppose the seizure or cap-
ture of such property by virtue of the letters of reprisal is absolute. It
is no more absolute than the taking of property under the common-lagy
writ of replevin; and, in truth, the proceedings in an action of and
under a writ of replevin at common law bear a close resemblance to the
proceedings under the jus gentiwm upon special letters of reprisal. (See
1 Black. Comm., p. 259, and notes to Am. ed., and 3 ib., p. 146, &.;
3 ib., p. 6, &c., 129, 146, 413, 280, 231. 1 Lord Campbell’s Lives of
Lord Chancellors, p. 205, before cited.)

The preliminary caution, with surety demanded of the party seeking
a letter of special reprisal, is analogous to the bond or stipulation
required of the plaintiff in replevin. And so, too, where the property
is replevied from seizure under a distress for rent due.

The question to be decided by the court is not ordinarily the legality
or illegality of the distress, except as dependent upon the fact whether
any rent was actually due as claimed, or whether the amount claimed
was due, or the distress was unreasonable. And so the court, in case
of a seizure by letters of reprisal, determines only the amount of dam-
ages due the claimants, and whether there hath been an abuse of the
writ in that regard.

The property seized is disposed of by the direction of such tribunal,
and the proceeds first apphed to the payment of the reasonable ex-

-penses incurred in the case, next to the satisfaction of the claim, and

the surplus is to be returned to the State complained of.
After seizure, it remains in the custody of the law till adjudicated
upon and disposed of by admiralty court. The seizure is a mere stop-

/

AVES ISLAND. 261

page or detainer, and does not, of itself, till adjudicated by the court
of admiralty, change the property. This is the well-settled rule,
according to all the authorities.

XI. It is conceded that a State granting special letters of reprisal,
may require such reasonable conditions and restrictions necessary to
prevent the improper use thereof, not in derogation of the rights of its
citizens to such full remedy according to the jus gentiwm, and not of a
character rendering it ineffectual. The consuetudinary law of nations,
and the practice under it, requires that in all cases a caution and surety
should be exacted from the party demanding such letters, to respond
in damages to any person illegally damnified by the abuse of such
letters, and also to all persons injured thereby in any manner what-
ever, if it should be subsequently made to appear that the claimants
fraudulently made a false and exaggerated statement of their claim,
and misled the authorities of their State into granting such letters.

This stipulation is an ample guarantee to the whole world against
illegal damnification by the issuance of such letters, or the proceed-
ings under them. It deprives the State, whose property, or the prop-
erty of whose subjects or citizens, is seized under such letters, of all
pretext for resisting their execution. It takes away from the letters
everything like a belligerent character, and makes them mere judicial
process for the enforcement of just indemnity for a wrong, or collection
of a just debt.

The authorities show that all States, within the last six centuries at
least, have exacted such caution.

Among the restrictions and conditions that a State issuing such
letters may rightfully exact of its citizens demanding them, is the
preliminary investigation before alluded to, to ascertain, for its own
satisfaction, theamount of damages or debt justly due from the delin-
quent State; though, as we have before stated, such preliminary inves-
tigation was not required either by England or any of the continental
States, except France, by Art. 1, of Tit., 10, of Ord. of Marine, 1681,
and prior ordinances, in cases of letters of special reprisal. (See
Cleirac, Valin, and Pardessus before cited wt passim in notice on said.
article.) Such course is now suggested as a wise and precautionary
measure to avoid subsequent contest on that point, to prevent an abuse
of the letters, and injustice and injury to the State complained of, and
all other parties.

Anciently, special letters of reprisal were issued to the individuals
complaining, and who also executed them by vessels armed by them-
selves. It is not questioned that a State may, for its own security,
and to prevent an abuse of its writ and injustice being done, direct, at
its option, that the letters be executed by the individual claimants, as
according to past practice, or that they be executed under the super-
vision of its naval or other officers, or such letters may be issued im-
mediately to such officers, and the execution thereof- directed to be
made by them, and in a public ship-of-war.

Doubless no departure from the rules and usages of the jus gentiwm,
having in view the security of the alleged delinquent State, and third
parties, would be justified on the part of the State issuing such letters,
but the prescribing of regulations and restraints by such State upon

262 AVES ISLAND.

its‘own citizens, tending to enhance such security, cannot be com-
plained of. The only question in relation to such regulations and
restrictions is between such State and its citizens, and as to their not
being in derogation of the rights of the latter, or impairing those
rights under the law of nations.

The abolition of privateering by the convention of Paris of 1856, so
far forth as respects the seven States, parties to that convention, is at
least suggestive of the self-imposed prohibition, by all of those States,

against the granting thereafter of commissions to private armed ves-

sels, in principle extending to both kinds of letters of reprisal. Whilst
we do not accede to the policy of the abolition of general reprisals or
privateering, insomuch as the employment of public vessels is less
expensive to the claimants than their own private vessels; insomuch
as abuses are less likely to occur in the execution of the writ of special
reprisals; insomuch as resistance would be less likely to be made to
public officers in public ships; insomuch as public officers intrusted °
with the execution of such letters would be more fully under the con-
trol of the State issuing them, and would be disinterested and impar-
tial, it is submitted that the employment of such officers and such
vessels to execute this particular duty, is consistent with sound policy
and reason as well as with the law of nations.

XII. All the authorities require that special letters of reprisal
should be granted by order of the sovereign of the State, or that
branch of the public authority to which the power of directing the
intercourse of such State with other States is intrusted by its consti- —
tution.

We concede that the power to issue or authorize the issue of general
or extraordinary commissions of reprisal or letters of marque is, by the
first article, eighth section of the Constitution, vested in Congress ;
but the authority to issue special reprisals, under the law of nations,
is, we contend, appropriately an executive function, not included in
that delegation, but left to be exercised by the executive branch of the
government, as one of the necessarily inherent and impled powers,
founded on the constitutional duty to ‘‘ take care that the laws be faith-
fully executed ;’’ (see art. 2,§ 35) the jus gentiwm being included in
that requisition.

The Articles of Confederation between the United States of America,
adopted during the war of the Revolution, contain two clauses perti-
nent to this subject. (See 1 U.S. Stat.-at Large, p. 4.)

Article 6, section 5, among other prohibitions upon the respective
States, contains the following: ‘‘ Nor shall any State grant permission
to any ships or vessels of war, nor letters of marque or reprisal, except
it be after a declaration of war by the United States in Congress assem-
bled, and then only against the kingdoms and State, and the subjects
thereof, against which war has so been declared, and under such reg-
ulations as shall be established by the United States in Congress assem-
bled,” &c. (1 U.S. Stat. at Large, pp. 5, 7.)

Article 9, section 1, provides that ‘‘the United States in Congress
assembled, shall have the sole exclusive right and power of establish-
ing rules for deciding, in all cases, what captures on land and water
shall be legal, and in what manner prizes taken by land or naval forces

AVES ISLAND, 263

in the service of the United States shall be divided or appropriated; of
granting letters of marque and reprisal in time of peace, appointing
‘courts for the trial of piracies and other felonies committed on the high
seas, and establishing courts for receiving and determining finally
appeals in all cases of capture, provided no member of Congress shall
be appointed judge of any of said courts.’”’ (Ib. p. 6.)

It will be noticed that the delegation of power by the federal Con-
stitution to Congress ‘‘to declare war and grant letters of marque and
reprisal,’’ is not accompanied by a similar provision to that in the first
section, ninth article of the Articles of Confederation above quoted,
referring to such letters ‘‘in time of peace,’’ and therefore the delega-
tion in the federal Constitution must be construed as referring only
to such general or extraordinary commissions or letters to be issued in
time of war. And this construction is strengthened by that delega-
tion-being coupled with the power of declaring war, and connected in
the same clause and section. And such contraction leaves the power
of issuing special letters of reprisal ‘‘zn time of peace,’’ to be exer-
cised as an inherent power or function of the executive branch of the
federal government under the law of nations, unfettered by any con-
stitutional restriction or inhibition, as was contained in article six, and
also in article nine, of the Articles of Confederation above quoted.

This is no novel construction ; for it has, with great force, been con-
tended by distinguished statesmen in Congress that the power to grant
special reprisals in time of peace, to their citizens, by each of the States,
for injuries sustained, either against a co-State or foreign government,
hath not been relinquished by the federal compact, and that the eighth
section, first article, refers only to general or extraordinary reprisals
in time of war, and has left the right of special reprisals unaffected. by
the Constitution ; and as it exists by the law of nations alone, and that

it may be so exercised by the federal or State governments in all proper —

cases. [Vide speech of Senator J. M. Mason, in Senate of the United
States, on the fugitive slave bill in 1850. ]

We do not think it necessary to discuss the question of the existence
of this power in the several States, or its exercise against each other or
against foreign governments. It is sufficient for us that there is not
any express delegation by the Constitution to Congress of the exclusive
power to grant special reprisals. It is sufficient for us that by the
common law of England, and by the civil law, as well as by the uni-
versal law of nations, such letters of special reprisal, in time of peace,
are in the nature of a judicial writ, and are demandable of right by
the subject or citizen of a State from its government when he hath been
agerieved and injured by a foreign State, its subjects, or citizens.

It is sufficient for us that the jus gentium, and the usages and prac-
tices of all nations under it, have provided rules and formula of pro-
cedure that save the necessity of congressional legislation to enable
such rights to be maintained by the Executive.

It is not a sound argument to urge that the Executive may endanger
the peace of the country by authorizing the issuance of such letters
without the authority of Congress. Such argument is founded upon
the presumption that the Executive is incompetent or incapable of ex-
ercising the functions of government justly and properly, and that

264 AVES ISLAND.

Congress i is the only immaculate and safe depository of public power.

Tf carried to its full extent, it annihilates all executive power whatever,
and places every thing under the control of Congress; whereas, accord
ing to the true principles of the federal compact, the separate powers
of the executive branch of the government are as independent of those
of the legislative branch, and are as well defined and maintained, as
the latter. We are not informed of any case of special reprisals that
has occurred in this government since the adoption of the federal Con-
stitution.

Cases of general and extraordinary reprisals have repeatedly occurred,
and in which the legislative as well as the executive power has been
exercised under the Constitution to authorize the issuance of such let-
ters, which were recognized as a kind of imperfect war.

The act of Congress of July 9, 1798, (1 Stat. at Large, pp. 574, 579,)
authorizing general reprisals against the French government, are of
this character. So, too, the act of February 6, 1802, (2 ib. 1305) and
also the acts of June 18, and June 26, 1812, (ib., pp. 755, 759,) de-
claring and‘during the war with Great Britain. So, too, the act of
March 3, 1815, (3 ib., p. 230,) as to the letters against Algiers; and
so also the message of General Jackson to Congress, (December 1,
1834,) with reference to the authorization of general reprisals against
the French government for the public debt due to the United States by
treaty stipulations, is of the same character; and the distinction obvi-
ously exists between all these cases and the case of special reprisals to
enforce rights of individual citizens in time of peace, must be, apparent
to the most ordinary intellect.

No one contends that there is any special statute investing the exec-
utive branch of this government with power to grant special letters of
reprisal in time of peace, or with power to lay a blockade or embargo
in time of peace, in a case where by the law of nations such blockade
or embargo would be justified ; or to take possession, by armed force,
of territory in dispute between the United States and a foreign State ;
or of resenting by violence an insult to and outrage upon a public
diplomatic repr resentative of the United States ina foreign country; or
of committing acts of hostility against another people for insults and
outrages upon the American flag and American citizens. Yet it hath
been found that such measures must be adopted, and such legitimate
executive functions fulfilled; and though several such cases have
occurred, no Executive hath been arraigned and censured for violating
the Constitution in so doing, but in every instance he hath been ap-
plauded and sustained.

We prefer to be strict constructionists of the Constitution, but not so
much with reference to the necessary powers of the federal government
for the protection of its citizens against the aggressions of foreign.
States, as in regard to encroachments upon the rights of the individual
States of the Confederacy, or the rights of the individual citizen by the
federal government. By such liberal construction from the former, no
danger 1s to be apprehended: on the contrary, the greatest danger is,
that timid statesmen, holding the reins of federal authority in future
times, (when the doctrines of Exeter Hall shall more exclusively pre-
vail,) may be deterred from acts of necessary justice by the facility to find

AVES ISLAND, 265

excuses for their neglect or timidity in alleged doubts as to their con-
stitutional power. Over fastidiousness in this regard by Mr. Jefferson,
“would have prevented the taking possession of the Spanish ports on
the Southern Mississippi border under the treaty of 1795, or the subse-
quent occupation of Mobile and the country west of the Perdido fifty
years since, as included in the Louisiana cession. No act of Congress
existed authorizing Commodore Rogers to fire into the Little Belt just
before the war with Great Britain. If Mr. Polk and_his cabinet had
been squeamish in 1845-6, about the occupation by the Army of the
United States of the country between the Nueces and Rio Grande del
Norte without congressional authority, the history of this country
would have been very different. General Jackson would not have

invaded the Floridas in 1814 or 1818 if he had believed an act of Con- -

egress was necessary. If Captain Percival, gome thirty years since, had
awaited the instructions of the President, and the President had
awaited the authority of Congress, before that gallant officer permitted
himself to fire upon the savages at Quallabbattoo ; if Commodore Arm-
strong or Captain Towle, more recently, had refrained from punishing
the Chinese for their outrages, till Congress had passed a law to allow
it; or if President Pierce had asked authority from Congress to allow
him to bombard Greytown, and chastise the negro and mulatto vaga-
bonds there congregated, for their outrage upon the American minister ;
if Captain Ingraham had deemed an act of Congress necessary for him
to act in the Kozta case, the chronicles of our country would have been
greatly variant from those now written. The idea of an Executive of
this great Confederacy possessing no attributes unless Congress had
sanctioned them, of being helpless as an infant (unless the previous
authority of Congress be given to him) to uphold and execute the law
of nations, to protect and enforce the rights of American citizens, and
to maintain the honor of the American flag, is degrading to the exalted
position of the Chief Magistrate of the United States. The concession
that the citizens of this government cannot receive the same redress
yielded to the subjects of European monarchies, until the Executive
asks leave of Congress to fulfill such duty under the law of nations,
and the soliciting congressional direction as to the mode of such fulfill-
ment, is derogatory to the character of our free institutions.

The argument that would inhibit the Executive from exercising the
power of issuing special letters of reprisal without the previous legis-
lative permission of Congress, it is presumed, is founded chiefly upon
the idea that the issuance of such letters is a belligerent act, or an act
tending to war. The authorities heretofore cited show that it is not;
but, on the contrary, is a pacific, conservative remedy. Doubtless
congressional legislation, analogous to that of the British Parliament
as early as the time of Edward III and Henry V, and analogous, also,
to the French ordinances of marine as early as the thirteenth century,
embodied in the tenth article of the famous ordnance of 1681, and to
similar leyes of Spain and placarts of Holland on the subject of special
reprisals, with such improvements as the progress of mankind render
proper, would be beneficial. But such legislation is no more wanting
to warrant the Executive in the fulfillment of his duty on the case of
special letters of reprisal under the law of nations, and according to

266 AVES ISLAND.

its usages and practices, than it would be for the prompt defense of our
country by the Executive in case of hostile invasion by a foreign power
without declaration of war. The idea of the necessity of such previous
congressional legislation is as ridiculous as the fastidiousness of the
Englishman who declined exerting himself to save a drowning man,
for the reason that he had never been regularly introduced to him, and
could not venture for that reason to speak to him, much less take hold
of him. The belief by foreign governments that the Executive of the
United States was impotent to redress wrongs upon our citizens by
special letters of reprisal before he had sought and obtained the author-
ity of Congress, would tempt them to the commission of acts of violence
and outrage, whilst, on the contrary, the knowledge that the Executive
of the United States possesses such power, and will exercise it without
the delay of recourse to Cengress, would deter those disposed to act
unjustly. It would secure the prompt payment of many just claims of
our citizens against foreign governments; it would tend to prevent
difficulties ; to prevent the creation of hostile feelings and the commis-
sion of hostile acts, and would prevent wars. This power, properly
exercised by the Executive, might have prevented the war with Mexico,
for the long delay in the adjustment of the just claims of our citizens
for the spoliations of that republic tempted it to further aggression after
the treaty of 1839. And we believe if special reprisals had been
promptly resorted to, both against the British and French governments
for their spoliations under the orders in council, and the Berlin and
Milan and Rambouillet decrees, the war of 1812, between this country ©
and Great Britain, would never have occurred. Had the remedy of
special reprisals been adopted by those who administered the executive
powers of the government of the United States in the cases of the atro-
cious outrages perpetrated by the Spanish officials in Cuba some years
ago upon the persons and property of citizens of the United States, and
for the outrages upon our flag, instead of the idler measures of diplo-
matic remonstrances, those wrongs would not have been repeated.
Inertness in exacting just redress and atonement created the belief of
impunity, and tempted such repetition. .

Loccenius, in his work, (cited in the list annexed,) refers to the prac-
tice of certain princes refusing letters of special reprisal for fear of
provoking war, as to which practice Valin remarks, it is ‘‘no proof of
moderation of the governments that have adopted it, nor of their love
ot peace, but rather of their feebleness or pusillanimity; and that any
sovereign who should refuse them on such a pretext would be regard-
less of his own honor and of the justice which he owes to his subjects.’’
(Valin Comm. on Ord. of 1681, b. III, Tit. X, art. 1. Wildman’s
{ntojic. V., p. 190.)

But though there may not be any special statutes of the United
States referring in express terms to special reprisals, as before observed,
yet it is submitted that such reprisals, and a resort to them by the
President, ‘‘at his discretion,’’ in the mode we have indicated, is clearly
embraced in the purview, and is within the spirit, meaning, and object
of the fifth section of the act of 18th August, 1856, passed, in part,
on the application of these claimants, and with this very Shelton Isle

AVES ISLAND. 267

case in view. (See memorial, &c.,.on filein Senate, and a copy whereof
was sent to the State Department at the time it was presented.)

The act is entitled ‘‘an act to authorize protection to be given to
citizens of the United States who may discover deposits of guano,’’ but
includes, in terms, those who ‘“‘may have discovered’’ at the time of
the passage of the act. And the fifth section expressly authorizes the
President, ‘‘at his discretion, to employ the land and naval forces of
the United States to protect the rights of such discoverers,’ &c. The
employment of these forces to enforce special reprisals, surely is within
(because a less hostile course) their employment in using warlike force
against another nation, and in acts of unequivocal hostility.

XIII. In the present case diplomatic, action has been had. Nearly
three years have elapsed, and no result has been obtained, except a
display of shuffling and equivocation and evasion by the Venezuelan
officials, and an insult and indignity to our minister, and this, too, it
must be borne in mind, in a case of gross outrage upon the American
flag, and despoiling the property of American citizens, perpetrated
under circumstances stamping the outrage as an atrocity. Further
diplomatic action by the United States government, it is submitted,
would be a compromise of the national honor and character.

The example of the British government in the Nootka Sound case is
worthy of imitation in this, and they are similar in character. (See
Brief, page 46, Ex. Doc. Misc. 25, 3d sess. Thirty-fourth Congress, for
this case.)

XIV. No one can contest the justice of the rule recognizing the right
to make private property subject of special reprisals for the liability of
the State under the law of nations. Each member of a State is bound for
the liabilities of a State, and it is not unjust to collect such liabilities
from him, insomuch as in such case he hath full and plain resort to his
State for indemnity, and to his fellow members thereof for contribu-
tion.

This is analogous to the principles of the common law in relation to
the debts or liabilities of a municipal corporation, (cities, towns, &c.,)
and of the individual corporators or members thereof. (See Common
Law and authorities on this subject.)

He who cannot see that the true principles of justice and right and
morality and sound policy are maintained by these rules must take
a superficial view of the subject, and be perversely blind to their opera-
tion and effect. They afford the sole means of enforcing justice against
such corporations. The effectsof the original wrong are thereby brought
home to the community, and it is constrained by its own members to do
them the justice it has denied to strangers.

XY. It is not supposed that any one will deny the propositions stated
in the ‘‘points’’ filed under this number.

XVI. The citation of authority to support the doctrine asserted in
the points filed is deemed useless to statesmen, who, we have every
confidence, fully appreciate the duty there noted.

But it may be remarked that the non-fulfillment of such duty by

any government would justify the reproach Sir Hunry Butwer cast upon ,

that of the United States in 1850, in his famous ‘‘ Chatfield letter”’ of
being ‘‘a weak government,’’ wanting decision, firmness, promptuess,

268 AVES ISLAND.

and energy; and it may be also said that the continuance of such neglect
will, in many cases, excite the injured citizen to attempt the redress of
his wrongs by his own strong arm, and with such means as the SupPERIOR
of all governments may extend to him, without relying on his country
for aid. If procrastinated palavers and protocols, the scribling of end-
less diplomatic dispatches, and everlasting discussion and negotiation
be all the results he can attain; if delay, evasion, shuffling, and trifling
by the State which has wrong him be unrebuked and overlooked by his
government, except by the stereotyped phrase ‘‘they do not look on
it with indifference,’’ can it be wondered at if, maddened by his wrongs,
he becames a filibuster and engage in schemes hostile to the nation which
has wronged him, and, perhaps, ruined him, in order to avenge those
wrongs, and, perchance, obtain some indemnity for them by plundering
it in retaliation?

- By rigidly and promptly enforcing the law of special reprisals in
every case, we shall not so often witness such acts by American citizens,
now the subject of such sharp reproach against us by the people of other
States.

The claimants in this case forbear to ask for special letters of reprisal
in their case until a technical formal lettre de requéte hath been sent to
Venezuela with full and authentic copies of all the proofs and deposi-
tions filed by these claimants in said department. These claimants are
apprehensive that in this regard the treaty stipulations with Venezuela
have not been fully complied with on the part of the United States by
such full rendition of the proofs adduced in regard to the spoliation —
and the damages sustained therefrom, and they would submit that such
full proofs be forthwith communicated to that government according to
treaty, and accompanied by a technical lettre de requéte for reparation,
with a view to the ultimate granting of letters of special reprisal; and,
in the meantime, they would respectfully solicit the adoption of meas-
ures by the government of the United States to ascertain for its own
satisfaction the amount of damages justly due, and the payment of
which should be enforced by such letters of reprisal, if necessity exists
for their issuance after the time specified in the lettre de requéte has
expired.

These claimants decline in this brief to comment upon the testimony
sustaining their claim for damages to the amount of $655,590 filed in
the State Department and printed for its use, and a copy whereof hath
been or should have been communicated to the government of Vene-
zuela, as was anticipated when said document was filed. Those depo-
sitions and proofs sustain in general terms every item of said claim as
just and reasonable; but in the investigation solicited the claimants
will be able to adduce evidence verifying particulars and details, so as
to leave no question of fact in respect to said damages in doubt. The
questions of law in relation to the damages which we claim can then
be more readily decided in a manner satisfactory, because just to all
parties; but in such case the decision, as to damages, of the Executive
preliminarily to the issuance of letters of reprisal, will be subject to the
review and supervision of the judicial tribunal before which the prop-
erty seized under the letters may be brought for adjudication.

These claimants, Philo 8. Shelton and Sampson & Tappan, do not
regard their case as blended in any degree with that of Lang & Delano

AVES ISLAND. 269

and others. The latter have adduced no proofs, and have not adopted
any measures or made any application for a technical letter of request
nor for letters of reprisal. We protest against their being allowed. to
use our proofs, which we have procured at great trouble and expense
to us, to which they have in nowise contributed. We consider them
to be interlopers, not having any rights in this case nor entitled to
any aid or redress, and at’ the proper time we will show it. We de-
sire our claim and case to be kept separate and disconnected. They
have no right to be joined with us.

BRITISH AUTHORITIES.

17 Viner’s Abr. Tit. Prerogative, Na., p. 2, 3. Viner is copied
from Rolles’ Abr., 1668, published by Lord C. J. Hale. See 2 Rolles’
Ze IN lio. Vis:

1 Runn. Stat. at Large, p. 273, (127. V.) Stat. 27, ed. III, ¢. -

pee Deas ; ibid p. 507, (456,). Stat. 4, Hen. 5)! dy Tj) Am
1416.
1 Fitz-Herb. N. Brev., 9th London ed., 1794, vol. 1, p. 114.

2 Ibid 2 F. N. B.) lit. Libra Requesta. The last of these cita-
tions contain precedents of ‘‘letters of request.’’

1 Molloy’s de Jure Maritimo, 9th ed., 1769, ch. 2, p. 33, e@ seq.,
§ 1 to 28, regarded as the best authority on the subject of reprisals, and
it contains a form of special letters of reprisal, which see. The letters
cited were issued 17 Car. 11, May 19, (in 1646,) to James Caren e¢ al.

1 Waret’s Hist. of Laws of Nations in Hurope, ch. 9, p. 294.

3 Hallam’s Hist. of Middle Ages, ch. 9, p. 2 and 332. Am. Hd.
of 1853.

2 Stephens’ New Comm. on Laws of England and of States, Pt. 1,
§ 4, p. 515. London ed. of 1842.

1 Black. Comm., ch. 7, et notes, tit. Prerogative, § 4, p. 259.
Am. ed. 1841.

2 Brown’s Cir. and Ad. Law, c. 1, p. 334. 2d London ed.

Rutherford’s Inst. of Nat. Law, c. 17, p. 200, &c. 2d Am. ed.

Wildman’s Inst. of Nat. Law, (v. Am. Law Lib., vol. 52,) Eng.
Bde. ps 186, Am. ed., p. 117.

Pritchard’s Admiralty Dig., London ed. 1847, p. 193.

Polson’s Principles of the Law of Nations, (vol. 78, Am. Law Lib.,)
Hing. ed., p. 36, Am.ed., p. 39, &c.

Chitty’s Law of Nations, Eng. ed. of 1812, ch. —, p. 78, &e.

Manning’s Comm. on the Law of Nations.

3 Phillimore’s Comm. on Int. Law, ch. 2, p. 11, &c. 1 Ib., §§ 48
and 344.

Hosack on the Rights of Neutrals, § 6 and 7, citing Stat. of 29 Geo.
II, ch. 34, and 19 Geo. III, ch. 67, vesting the admiralty with the
power of issuing letters of reprisal exercised by Lord Chancellor under
prior statutes above cited. .

McCulloch’s (J. R.) Com. Dict., p. 1105, edition of 1850.

1. Magens, on Insurance, App. p. 491.

te tite

270 AVES ISLAND.

Correspondence on Silesian loan case. Dispatch of Lord Holder-
ness to Mr. Mitchell, dated May 11, 1756, respecting the adjustment
of said case.

1 & 2 Reddie’s Maritime Int. Law.

Reddie’s Researches on International Law.

Hazlitt & Roche’s Manual, p. 84 to 96.

EUROPEAN CONTINENTAL AUTHORITIES.

Loccenius, De Jure Maritimo et Nevale, lib. 8, c. 5, p. 257, &e.

Vattel, Droit des Gens, b. 2, c. 28, p. 283, &c. Am. ed. of 1854.

Grotius, De Jure Belli et Pace, b. 3, ¢. 2, p. 663. Lat. ed., with
Grusnovio’s notes. Ibid, p. 215. French edition, with notes by Bar-
berac added. Ibid, p. 538. English ditto.

Bynkershoek, Ques. Jur. Pub., b. 1, ch. 24, p. 184. Duponceau’s
Am. translation.

DeWicquefort, on Hmbassadors, &c., ch. 22, § 4.

Puffendorff, Law of Nature, &e. 5 bs 8, ch. 6, §§ 12 and 13, et Notes
Eng. ed. of 1760.

2 Kliiber, Droit des Gens mod. del Europe, p. 1, §§ 12, 1, 231, &c.

Wesenbee’s Comm., lib. 3, cod. tit. 13, p. 498.

Struve, Juris. Civ. Syntagma, exer. 8., ib. 5, tit. 1, p. 309.

Besoldus, Thes. Prac., R. 52; tit. Reprisals, p. 789.

Leyser, Med. ad Pandectas, p. 30, book 2, tit. 2, p. 306, § 58

Voet, Comm. on Pandects, lib. v, tit. ies 30, p- 248,

Putter, Inst. Jus Pub. Ger. S14 415, § 383.

Boccus, de Navibus, &c., and notes, "$22, p. 168, and notes; and see
Am. translation by J. R. Ingersoll.

Wolfe’s Jus Natura, p. 196, 197, and notes to § 572.

Targa, Reflections on Com. Marine, C. Of p. tos:

1 Milnitz, Manuel de Consuls, p. 474 and inde.

ib DeRayneval, Inst. of Int. Law, b. 2 ch. 12, p. 205, Spanish
edition.

Ibid., French edition.

Magerus De Advocatia Amata, d&c., c. 14, p. 738.

AMERICAN AUTHORITIES.

Danes’ Abr., ch. 227, p. 676, § 66.

1 Kent's Comm., 6th edition of 1848, part 1, lecture 3, p. 60, &e.
Wheaton’s El. of Tnd. Law, 6th edition of 1855, part 4, e. 1, 8S 12
and 13, p. 361, et seq.

Wheaton’s Histor y of Laws of Nations.

2 Peter’s Decisions, Pref. to App., vol. 2, p. 1; Obs. on Ord. of -
1681, &c.

1 Elliot’ s Debates, p. 110; Mr. Sitgreves’s speech, p. 453.

General Jackson’s Message, December 1, 1834.

Hon. J. M. Mason, speech in Senate of United States on Fugitive
Slave Bill, asserting right of States to issue reprisals for non- -delivery
of Slaves in 1850.

AVES ISLAND. Ni 271

FRENCH AUTHORITIES.

1 Corbin’s Code de Lowis XIII, b. 3, art. 52, p. 89, tit. 34.

Ceirac’s Guidon de la Mer, part 2, p. 300, &.

Ibid., notes on same, ib., p. 301, &c.

2 Pardessus Lois Maritimes, tit. X, p. 410, &c.

Ordinance of 1681 as to Leprisals, by Louis XIV, and Valin’s
Comm,; vide 2 Valin’s Comm., p. 414, tit. X, b. 3.

Same ordinance, as translated in ‘‘ British Collection of Sea Laws.’’

2 Valin’s Comm., p. 414.

Valin’s Zracte de Prises, c. 201, p. 320, on Reprisals.

6 Pardessus, Cours de droit Commercial, p. 380.

Boucher, Nouveau Valin, art. 161, (350,) p. 472.

Ordinances by Kings of France of the Third Race, &c., by De
Lauriere, vol. 1, p. 516, &.

Felice’s Code of Humanity, &c., vol. 12, p. 177, e¢ seq.

Un. Dict. of Sciences, by Robinet, vol. 17, p. Bal, tit. Reprisals.

DeGarden’s Treatise on Exterior Rel. of ‘Nations, vol. 2,..b. 6,98ie%

220.
: Encyclopedia of French Academy, tit. Reprisals, vol. —, p. —.

Chameane’s Dict. of Legislation, part 2, p. 631.

1 LePage, Hlemens de la science du droit, &c., ch. 4, art. 3, § 33,
p. 326.

5 Saint Edme., Dict. of Penalties throughout the World, &c., p. 270.

G. Von Marten’s Law of Nations, trans. by Cobbett, b. 4, p. 269,
ch, 1, &c.

2 Marten’s Précis du droit des gens M. del Europe, Paris, 1831, b. 8,
p- 145, art. 160.

1 Marten’s Précis du droit des gens, with Ferreira’s notes, ch. 3,
§ 96, p. 224.

DeMarten’s Essay on Privateers, translated into English by T. H.
Horne, cited as Horne on Captures, ch. 1, § 4, p. 9, &e.

Emerigon on Insurance, § 4, p. 59, 85, p- 63, ‘ch. 12 , § 36, p. —,
American edition.

Bouley Paty, Notes on Emerigon, vol. 1, ch. 12, § 36.

1 Azuni’s Maritime Law, American edition of 1806, translated by
Mr. Johnson, p. 1, c. 4, art. 14, § 2, p. 194, &e., and art. 2 Sil

Schmalz, Le droit des gens (V’ Bu ‘ope,) b. 6, @.).L pty.

1 Massé, Comm. Law, b. 2, ch. 2, sect. 1, g Ly, p. 130.

2 Mauzet, Treatise on Ins., Dinas "§ 273.

18 DeLocri, Civil Leg. of France, p. 411; Comm. on art. 350 of
Code of Commerce, &c.

1 T. Ortolan, Int. Laws of the Sea, b. 2, c. 14, § 549, p. 386,
French edition.

1 DePistoye & Duverdy, tit. 1, ch. 3, .p. 85, § 3, &., p. 135, tit.
Embargo.

1 DeCussy, Phases et Causes Célébres du droit Maritime des Nations
pp. 124, 118, 120, 390.

2 Thid. ; pp. 8, BO. 533, 557, 558, 486.

fed AVES ISLAND.

Mr. Cass to Mr. Hames.

No: 53.] DEPARTMENT OF STATE,
Washington, August 31, 1851.

Sir: Your dispatch No. 38, of the 13th of June last, has been re-
ceived. From this and from your personal report on the subject, it
appears that the wrong done to Messrs. Shelton & Co. by the violent
eviction of their agents from the Island of Aves, still remains unac-
knowledged by the Venezuelan authorities. Considering the aggra-
vated character of this wrong, the very serious damages which it occa-
sioned to innocent parties, the period of time which has elapsed since
it took place, the promptness with which it was brought to the atten-
tion. of the government at Caraccas, and the urgent manner in which,
under the instructions of the President, you have demanded reparation
for it, the continued indifference of Venezuela, is so extraordinary in
its character as to become itself an occasion of serious complaint. The
injury which claims redress occurred so long ago as December, 1854.
In the month of March following, it was brought to the attention of
the Venezuelan government. In repeated instances during the same
year it was prominently referred to by you, both in personal interviews
with the President of the republic, and in communications to the minis-
ter of foreign affairs, and always mentioned as a subject of grave import-
ance, which would unquestionably be pursued by the United States to
a just conclusion. In the proceedings which attended and led to the
Pickrill contract, this Aves claim was scrupulously reserved for sepa-
rate adjustment on its own merits, and at an audience of the President,
about the middle of September, 1855, you expressed to his excellency
your ‘‘confident conviction that it would be effectually sustained.’’
On the 8th of March, 1856, you renewed the reclamation which you
had made twelve months previous, and informed the minister of foreign
relations that you had ‘‘ recently received emphatic instructions to con-
tinue to urge the same upon the government of Venezuela.” In
August, following, and again in January, 1857, the department ex-
pressed great surprise at the protracted delay which this claim had
encountered, and demanded in the gravest manner that it should be
brought to a speedy conclusion. ‘‘There remains no course, then,’’
you were informed, ‘‘ but to press the demand for redress upon Vene-
zuela in a formal and decisive manner, and request, in behalf of your
government, her determination in reference to this case. If she admits
her liability for the spoliations committed, the basis of adjustment
may be fixed without difficulty or delay. If she refuse redress, she
will be expected to offer such reasons for that course as will be satis-
factory to this government, especially in view of the stipulations con-
tained in the 3d section of the 34th article of the treaty of 1836, which
contemplates certain modes of redress in a case where either ‘ party,
considering itself offended, shall first have presented to the other’ a
statement of such injuries or damages, verified by competent proofs,
and demanded justice, and the same shall have been either refused or
unreasonably delayed.’ Before the reception of this dispatch, you

~

AVES ISLAND. 273:

had, on the 20th of December, in some degree anticipated its directions,
and had submitted a formal and urgent request that the action of Ven-
ezuela with reference toit might no longer be delayed. But on the
31st of March, you renewed the demand for redress in the very lan-
guage of the department, replying, conclusively, at the same time, to
the only communication on the subject in which Venezuela had ever
noticed the reclamation since it was first brought to her attention in
March, 1855. To this demand no reply has been received, except an
acknowledgment of its receipt on the 28th of May, and a statement.
that it required time for consideration ; while the long forbearance of
the United States to make it in a formal and peremptory manner, is.
most unreasonably urged as a justification for further delay. It is
true that you were also informed in this reply that an examination of
the two officers who were chiefly concerned in the Aves expedition,
was to be had on the subject the next day, and that you were at lib-
erty to attend. But since these officers had been the mere agents of
the Venezuelan government in the transaction complained of, had
been constantly within its reach for consultation, and had officially
reported their proceedings on their return, without any appearance of
disapproval by their government, it is difficult to see why any delay of
the case was necessary in order to receive their formal testimony.

Nor is it readily perceived, in view of those facts concerning it
which are not controverted, how the justice of the Aves claim can be
shaken by any testimony whatever. It is not denied that the island
in question was on the {sth of December, 1854, in the peaceable and
open possession of American citizens, and had been so for at least six
months. Itis not denied that they had first discovered that it con-
tained a valuable deposit of guano; that they had erected buildings
upon it; that they had hoisted the flag of their country as evidence of
their citizenship; and that they were engaged with all the necessary
materials and arrangements which they had procured and established
at great cost in shipping the guano which they had discovered to the
United States. Itis not denied, but appears clear, on the contrary,
from the evidence and the correspondence, that these facts were all
brought to the knowledge of Venezuela. It is beyond controversy,
that with this knowledge in its possession, and without any previous
notice whatever to the United States or its minister at Caraccas, the
Venezuelan government sent out an armed force to take possession of
the island and drive out the American citizens who were its rightful
occupants. It is undisputed, of course, that this force accomplished
precisely what it was sent to do, and evicted the occupants of the
island under circumstances of indignity to the flag of their country,
which no American could witness without emotion, and with a degree
of violence which they were unable to resist. It is certain that, in
consequence of these proceedings, Mr. Shelton and his associates,
without having committed any fatilt or violated any law, sustained
loss and damage to a very large amount, while he himself was reduced
from affluence to a condition of comparative want. It may be added,
moreover, that the armed expedition of Venezuela seems to have been

“undertaken with a view to divide with others the very profits of an

enterprise which rightfully belonged to Mr. Shelton and his associates,
Ex. Doc. 10 18

274 AVES ISLAND.

and that a large part of these profits has actually been paid into the
Venezuelan treasury. Taken in connection with the acknowledged
want by Venezuela of any title to the island, (for its suggestion of a
title growing out of successorship to Spain can hardly be seriously
insisted on,) 1f these admitted facts do not constitute a clear case of
aggravated wrong, and do not urgently require the most prompt dis-
claimer and redress on the part of the Venezuelan authorities, it is
impossible to conceive how such a case can ever be presented. In the
view here taken of the transaction, the conduct of Commander Dias,
who led the first Venezuelan expedition to the island, becomes quite
unimportant. Whatever may be the character of the paper to which
he procured the signatures of Messrs. Gibbs and Lang, and under
whatever misrepresentation or misapprehension they may have signed
it, it is quite certain, not only that they did not leave the island in
consequence of it, but that they never expected to do so. Their evict-
ion was only accomplished by the arrival and violent measures of a
superior force, and not in pursuance, but in direct contravention of the ~
arrangement which is said to have been_made by Dias. If this were
otherwise, the introduction of the Dias transaction far from palliating
the wrong complained of, could only render it more aggravated, by
showing that the occupants of the island were the victims alike of
fraud and violence. )

Entertaining these views of the Aves\claim, the President cannot
consent that its just acknowledgment shall continue to be delayed
under any circumstances whatever. While he has the strongest dis-
_ position to maintain the most friendly relations with Venezuela, he is
bound. by still higher obligations to maintain. the honor of his coun-
try, and to protect every citizen of the United States in the possession
and exercise of his just rights. If these rights can be violated and
outraged, as they unquestionably were in the case of Mr. Shelton and
his associates, without acknowledgment and without redress, no mat-
ter by what government the injury is done, the character of an Ameri-
can citizen must cease to command respect, and it will be little else
than a mockery to invoke the protection of the American flag. You
will, therefore, lose no time upon your return to Caraccas in bringing
this whole subject to the renewed attention of the Venezuelan govern-
ment. You may read this dispatch to the Minister of Foreign Affairs,
or to the President, and, if they desire it, you may give them a copy
_ofit. At the same time you will assure them that a settlement of the
Aves claim cannot be further procrastinated without serious injury to
the friendly relations of the two countries. The adjustment of dam-
ages ought not to occasion any considerable difficulty or dispute, but
these may possibly require some further examination. On the ques-
tion of lability, however, you will regard the discussion as closed. It
this is not admitted within a reasonable time, the question will be
withdrawn from the ordinary channels of negotiation, and the Presi-
dent will be obliged to consult with Congress in reference to its further
prosecution. You will remain in Caraccas for thirty days, in order to
receive the answer of the government there to this dispatch. Before
the end of that time, it is confidently hoped that the just claim of our
citizens in the case presented will be acknowledged by the Venezuelan

AVES ISLAND. | Be

authorities; but should this expectation prove unfounded, and you
should have no assurance that such an acknowledgment will speedily
be made, you will close the legation, request your passport, and return .
home.
J am, sir, your obedient servant,
LEWIS CASS.
CHARLES Eiamus, Esq., cc.

Mr. Sanford to Mr. Cass.

Dersy, CoNNECTICUT,
August 31, 1857.

Str: In the month of April last, there appeared in the ‘‘ Diario de
Avisos,’ a newspaper published in Caraccas, a communication, dated
Philadelphia, 20th March, from a Mr. Leon de Cova, now or formerly
an agent of the Philadelphia Guano Company, making some assertions
intended to prejudice the Aves Island claim, and among others, that
Mr. Guthrie, while Secretary of the Treasury, speaking of this case,
had said to him, that ‘‘neither said Shelton nor his attorney, San-
ford, had a right to a dollar from our (the Venezuelan) government,’’
&e., &e.

This statement, our minister at Caraccas, Mr. Hames, seemed to
think the Venezuelan government attached much importance to, and,
accordingly, on my return to this country, I wrote to Mr. Guthrie,
inclosing the article, and asking him to inform me if the assertions of
the article with respect to himself were correct.

The inclosed is his reply, stating that the account of what he is
ascribed therein as saying, is ‘‘ either a mistake, a misapprehension,
or a fabrication.’’

IT inclose his letter to be filed in the department, and in order that
our minister at Caraccas, now in Washington, may have cognizance
of it, and be relieved of any apprehensions which these false assertions
may have caused him to entertain.

I have the honor to be, with great respect, your obedient servant,

H. 8. SANFORD.

Hon. Lrwis Cass,

’ Secretary of State.

Lovrtsvitin, August 20, 1857.

Dzar Str: On my return to Kentucky after an absence of six weeks,
yours of the 9th of July was received. .

The extract from the Venezuelan paper of what I should have said
in Washington whilst Secretary of the Treasury, about the claim of
Mr. Shelton against the Venezuelan government, for which you were
agent, is a mistake, misapprehension, or fabrication. I have no recol-
lection of such a conversation, nor of having expressed any opinion

276 AVES ISLAND.

“upon the subject, and am confident that I had no distinct opinion upon

the subject, not having examined it, but was then, and am now, under
the impression that the island did not belong to that government, and
the use of force was a great wrong and unwarranted; | and if it proved
the island did not belong to Venezuela, that Mr. Shelton was entitled
to all damages sustained, and full compensation for the willful wrong.
Respectfully, JAMES GUTHRIE.

Mr. Appleton to Mr. Sanford.

DEPARTMENT OF STATE,
Washington, September 4, 1857.

oi: I have to acknowledge the receipt of your communication of
the 31st ultimo, with the inclosed original letter to you from the Hon.
James Guthrie, of the ultimo, in which he emphatically denies
having expressed himself unfavorably respecting Mr. Shelton’s claim
upon Venezuela, as is ascribed to him in a letter purporting to be ad-
dressed to the ‘‘ Diario de los Avisos,’’ of Caraccas, and published in
that paper of the month of April last.

As you think that the impression which would naturally be created
by such a statement from such a source should not remain uncorrected,
a copy of your letter, and of its inclosure, will be forwarded to Mr.
Eames. :

Tam, &c., JOHN APPLETON,

i Assistant Secretary.

Henry 8. SanrorD, Esq.,
Brevoort House, New York.

Mr. Cass to Mr. Eames.

No. 54.] . DEPARTMENT OF STATE,
Washington, September 4, 1857.

Str: I inclose a copy of a communication, of the 31st ultimo, from
H. 8. Sanford, Esq., and of the inclosure therein referred to, in which
the Hon. James Guthrie denies having given utterance to certain ex-
pressions, imputed to him, unfavorable to Mr. Shelton’s clainy upon

.. Venezuela, and which were published in the ‘‘ Diario de Avisos,’’ of

Caraccas, in April last, under the signature of Mr. De la Cova.

If you think, as Mr. Sanford believes you do, that Venezuela places
any reliance upon these supposed views of Mr. Guthrie, as sustaining
her resistance to the claim of Mr. Shelton and his associates, or if you
find upon returning to Caraccas that such a disposition is manifested,
the letter of Mr. Guthrie will enable you to remove any missappre-
hension of that character.

I am, sir, your obedient servant,

LEWIS CASS.

CHARLES Hames, Hsq., &c.

AVES ISLAND. Pau

M;, Ribas to Mr. Cass.

[Translation. ]

Lr@atio OF VENEZUELA IN THE UNitEp StaTEs,
Washington, September 4, 1857.

Most Excenzent Sir: The undersigned, Chargé d’ Affaires of the »

Republic of Venezuela, has the honor to make known to the most
excellent Secretary of State of the United States that he has received a
communication from his government, bearing date of 22d of June, of
the present year, in which it is stated that Mr. Hames, Chargé d’ Af-
faires of the United States in Venezuela, has sent a note to the Minister
of Foreign Relations of Venezuela demanding that within a very brief
period the pending question about the Island of Aves should be settled,
and threatening, if this were not done, that he would withdraw from

Caraccas for the purpose of reporting to his government. He was told, .

as regarded this, that it was considered necessary that the claim should
be further substantiated, since, if in his view it was sufficiently proved,
the same opinion had not been formed of it either by the President or
the Secretary of Foreign Relations, who could not determine the matter
in, the brief and peremptory time which he had assigned. He was
reminded of the proof of friendship which Venezuela had just given to
the United States by concluding with them a treaty of friendship, com-
merce, navigation, and extradition, which they had proposed, and the
Congress had sanctioned only by the strong and well known exertions
of the executive authority. His attention was called to the difference
of circumstances between a department loaded with business and a
legation which had very little; and, finally, he was told that the con-
clusion of the claim was hastened by the knowledge of his intention to
leave; and that, even if this should take place, there would not be
wanting means of communication between the two cabinets, as that of
Venezuela had a legation at Washington. The day fixed arrived
without Mr. Hames receiving the reply. On absenting himself, he
told very respectable persons that he left with the determination of
employing the press, of which he was a member, as a means of waging
war on Venezuela, so as to force Messrs. Buchanan and Cass to follow
the popular movement, and that he calculated on returning very soon
accompanied by a fleet.

Complying with the orders which the undersigned has received from .

his government, he communicates to the most excellent Secretary of
State of the United States what has been related, in order that he may
see that it has not been in the power of the government of Venezuela
to satisfy the demands of Mr. Hames; and that, if he (Mr. H.) has been
- willing to absent himself from Caraccas without giving that govern-
ment time to satisfy his demands, for this there is not the slightest
responsibility resting on that government.

The undersigned avails himself of this opportunity to renew to the. -

ee oe

278 AVES ISLAND.

most excellent Secretary of State the protestations of his highest con-
sideration and respect.
His obedient servant,
! FLORENCIO RIBAS.
Most Excellent Mr. Lewis Cass,
Secretary of State, cdc.

Mr. Cass to Mr. Ribas.

DEPARTMENT OF STATE,
Washington, September 11, 1857.

Sra: I have had the honor to receive your communication of the 4th
instant, in which you inform the department of the circumstances under
which Mr. Eames, the American minister, left Caraccas on the 13th
of June, and of the intention which your government then had of
transmitting through you its decision in reference to the claim of
Messrs. Shelton e¢ als., who were evicted from ‘‘ Aves’’ island in 1854
by the Venezuelan authorities. It is deeply to be regretted that this
decision has not yet arrived, because the case is one of pecular aggra-
vation, and has now been pending for more than two years and a half.
What you say of the comparative business of a Department of State
and a legation, is undoubtedly true; but it is difficult to see how much ~
time could be required in the ‘‘ Aves’’ case in order to determine the
preliminary question of liability, whatever investigation might be
necessary to adjust the amount of damages. About the prominent facts
upon which the claim is based, there is no controversy. The discovery
by the claimants of guano on the island, their preparations for work-
ing it, their peaceable possession of the locality, the dispatch of an
armed force by Venezuela in order to evict them, without notice to the
United omnes, and the accomplishment of this design by the force
employed,} are facts too clearly proved to be susceptible of doubt. The
report of f the officers who had char ge of the expedition sent out must have
been made to the Venezuelan authorities soon after its r eturn, and all the
facts in the case must, therefore, have been long known at Caracas.

Yet, so far has Venezuela been from acknowledging the wrong done
to our citizens and expressing its willingness to make just compensa-
tion for it, that it has indicated a disposition, on the contrary, to

justify the expedition by intimating a claim of title and a right of
possession to the island. It is not believed, however, that this ‘claim
can be deliberately insisted on, because it is impossible to discover any
good reason to sustain it. It does not appear that the island was ever
occupied by Venezuela or by the citizens of that republic. It was
never inhabited, and was not capable of supporting a permanent popm-
lation. There was nothing about it whatever which could lead Messrs.
Shelton & Co. to believe that Venezuela had a claim to it. It was not
contiguous to the Venezuelan coast, but was more than three hundred
miles distant from it, and much nearer to the possessions of other
countries than to Venezuela. Under such circumstances, knowing, as

AVES ISLAND. 279

the government of Venezuela did, that it was occupied by a party of
American citizens, who had established works on it, and were export-
ing its guano under the protection of the flag of their country, for
that government to send out an armed force to pull down the American
flag and substitute that of Venezuela, to drive away the occupants of
the island and destroy their business, and to establish in their place a
new company, from which Venezuela expected to derive large profit,
and to do this without notice to the American government or the
American minister at Caraccas, was a wrong to the United States and
their citizens who occupied the island, which appears so entirely mani-
fest, that it is difficult to understand how a friendly government, like
Venezuela, could have authorized it in the beginning, or can hesitate

now to acknowledge it. Certainly, it cannot remain much longer un- -

adjusted without imminent danger to the amicable relations between
the two countries which now so happily subsist, and which, it is earn-
estly hoped, may never be interrupted. On this point you are already
in possession of the views of this government, as they have been given
to you in a personal interview; and as you will doubtless communicate
them to Venezuela. It is believed that the wrong committed against
Mr. Shelton and his associates is too clear to justify any further dis-
cussion of it, and it is hoped, therefore, that your government, re-
garding this point as settled, will proceed at once to investigate the
damages which the wrong is alleged to have occasioned. These may
require to be carefully examined, but the United States feel it to be
due to their self-respect that the forcible injury done to their flag and
to their citizens should no longer remain unacknowledged. |

f avail myself of this occasion to renew to you, sir, the assurances of

my high consideration,
LEWIS CASS.

Senor Frorencio Rigas,
ce., &e., &e.

Mr. Ribas to Mr. Cass.
[ Translation. ]

LEGATION OF VENEZUELA IN THE UNITED STATES,
New York, September 18, 1857.

Excettant Sir: I have had the honor of receiving your note of the
11th instant, through which you have been pleased to answer mine of
the 4th instant, in relation to the departure of Mr. Eames from
Caraccas.

As I have received no instructions from my government for any
other purpose than that of submitting to the government of the United
States the slight cause which Mr, Hames had for requesting his pass-
port, whilst the minister of foreign relations was preparing satisfac-
tion for the claims preferred by said Mr. Eames, I am not now ina
condition to state to you anything in reference to your note of the 11th

280 AVES ISLAND.

instant. Complying, however, with the wishes of your government,
I shall immediately report to mine all that you have been pleased to
communicate to me touching the question, and I trust that I shall soon
have the gratification of notifying you of the determination which may
be reached in the premises. .
The undersigned avails himself of the present occasion to reiterate
the assurances of his most distinguished consideration and respect.

Your obedient servant,
FLORENCIO RIBAS. -
His Excellency Lewis Cass, .
Secretary of State.

Mr. Gutierrez to Mr. Cass.

[Translation.] -

REPUBLIC OF VENEZUELA, SECRETARYSHIP OF ForEIGN RELATIONS,
Caraccas, September 21, 1857.

The undersigned, Secretary of Foreign Relations of Venezuela, has
received orders from the executive power to announce to the Secretary
of State of the United States of America, that the answer to the reply
of Mr. Eames, in relation to the question of Aves Island, being now ~
completed, it will, as well as this note, be transmitted to Washington,
through the channel of the legation. of the republic at that place. .

In giving out this announcement, which will be speedily followed
by its accomplishment, the government of the undersigned has for its
object, besides coming to an understanding with that of the United
States, the submitting for its consideration some of the very controlling
circumstances which prevented, as was required, the immediate answer
insisted upon by the American legation in a demand recently put up
in this secretaryship.

Although the correspondence shows, and it 1s necessary here to repeat
the fact, that what though, in the course of various conferences with
the predecessor of the undersigned, in an audience sought with his
his excellency the President to enforce the claim of Pickrell, and in a
note addressed to the undersigned, relative to a certain question be-
tween Venezuela and Holland, Mr. Hames had incidentally touched on
the demand now under consideration, he never proceeded to present it
formally and accompanied by proofs, until the 20th of December, 1856.
When the President himself, on that occasion, urged Mr. Hames to
discuss it, before Mr. Pickrell’s application, Mr. Hames stated that he
labored under the impossibility of doing so for want of the necessary
documents; and, under other circumstances, assuring Mr. Aranda
that the main object of his government looked to the renewal of the
Wallace contract, he decidedly gave it the preference, and so extraor-
dinary a one, that he threatened a rupture if the claim were not
allowed. All at once, and when the period was drawing near for his
availing himself of the leave of visit to his country, which he had

AVES ISLAND. 281

obtained from Mr. Marcy, and this a few days before Mr. Sanford’s
arrival in Caraccas, he devoted himself exclusively to the agitation of
the question, and wrote his first note asking for an indemnity, and
stating that he had not applied for it before, in view of the necessity
under which he was placed of consulting his cabinet on the point of the
document signed by Lang and Gibbs, which, in his opinion, required
certain explanations. He spoke also of certain instructions of his gov-

ernment, which, sent to him since the month of August, 1856, did not.

reach him, through the fact of loss or miscarriage, and of the purport
of which he did not become possessed until a copy of them was shown
to him by Mr. Sanford, who had brought it-over.. To his aforesaid
claim of the 20th of December, he annexed certain declarations, which
could not have been all that he had in his possession, since there was
missing the declaration of Gibbs, one of the signers of the permit, and
if he sent it with his second communication, when -the circumstance
was adverted to in the first answer of the undersigned, it’ was in the
shape of a printed and mutilated paper, the meaning of which is, up
to this moment, ignored.

When the executive power perceived this insistance on a claim,
which, judging from the conduct of the United States legation for two
years, could not be held in very high regard; and one, too, which
merely rested on the testimony of some of the interested parties them-
selves, he deemed it his duty, on his part, to adopt measures of inves-
tigation, necessary not only in his view of the matter, but in the opinion
also of the government council, to which the question had been referred.
- Those investigations were not closed by the time of Mr. Hames’s de-
parture, nor are they all so even at the present day, whence the
depending facts that neither has the record of proceedings been returned
by the council, nor has it yet been made known whether the areuments
of the legation have changed the government’s view of the case.

His Excellency also desires to convince the government of your
country that Venezuela, in acting as she has done, was far from any
intent, in the least degree, of offending the Americans found in Aves
Island, as it stands to reason that he who uses his own right inflicts
no injury on anether, and that he holds full mastery over a thing to
exclude others from its enjoyment. And even were this not the case,
the Americans themselves, by recognizing, in the manner in which
they did recognize, the dominion of Venezuela and the unlawfulness of
its possession by them, would have justified the proceedings of the
national force. Besides, in no form or shape was violence resorted to
in their regard, to secure their dispossession, nor could it have been so
done. A verbal warning was given to them, and without threats ;
nothing more. The number of their vessels, of their laborers, of their
arms, cannons, guns, muskets, boarding pikes, cutlasses, and ‘pistols ;
their large supply of powder—all this, in comparison with twenty-five
soldiers under Colonel Dias’s command on board of the Venezuelan
schooner, with ten individuals constituting the whole number of the
garrison left on the island, even with the additional force of fifteen by
which said garrison was increased when another schooner of Venezuela
reached the port, could have enabled them, in any one of those three
occasions, and especially on the second, to resist and victoriously repel

———— By
a en ep ee

i

282 - AVES ISLAND.

those whom they considered as disturbers of their lawful possessions.
Notwithstanding this, they complied with the summons; and this
proves that the consciousness of their duty was more powerful than the
conviction of their indisputable superiority. Their departure was vol-
untary, rather than enforced. Mr. Hames has no doubt viewed it in
this light, since, up to this moment, he has confined his reclamation
to the payment ‘of an indemnity, and not to the requirements of an
evacuation and surrender of the island, which he would have demanded
in the case of a violent and illegal spoilation.

On the other hand, we must take in consideration the fact, that con-
temporaneously with the deliberation on the note of the 31st of March,
one of the most laborious of Congresses was in session, and one so be-
cause its duties turned upon no less an object than the reformation of
the institutions and of the general laws, which were to be shaped in
harmony with the: alterations made in the or ganic law. All of these
demanded the unceasing and undivided attention of the Executive -
power. . One of the points on which his action was most applied and
concentrated, was the treaty concluded in the course of the preceding
year between the two countries, which but for such action, would have
evidently been disapproved from the very incipiency of the debates , 80
great were the objections by which it was combatted, so great the op-
position raised against it, so deep and various the parliamentary strat-
agems devised by its antagonists for the purpose of preventing its
acceptance. And it is to be observed that whilst its success was
wrapped in uncertainty, namely, until the day of the adjournment of
Congress, on the 20th of May, when with the resolution of adjourn-
ment the decree of approval was passed, Mr. Hames, though without
any exception as to day or time, however inopportune, he had frequent
access to the Department of Foreign Relations never denied to nis
expressed wishes, urged no action on the Aves question, a decision on
which he afterwards insisted on in a summar y and peremptory manner.

The undersigned avails himself of this occasion to tender to his
excellency the Secretar y of State of the United States, the assurances
of his distinguished consideration.

JACINTO GUTIERREZ.

The Secretary or State or THE Unrrep STATES.

Mr. Sanford to Mr. Cass.

La Unton, San SALVADOR,
September 29, 1857.
Sir: I desire to send to Boston immediately a copy of the power of
attorney in my favor of P. 8. Shelton and Sampson & Tappan in the
Aves Island case, a copy which duly collated is on the files of the de-
partment, the original of which is not at this moment in my possession.

AVES ISLAND. * 283

May I beg you to have the goodness to direct that a copy be made and
sent to P. 8. Shelton, Boston, for which I shall be grateful? ;
I have the honor to be, with great respect, your obedient servant,
H. 8. SANFORD.
Hon. Lewis Cass,
Secretary of State.

Mr. Cass to Mr. Eames.

DEPARTMENT OF Snare,
Washington, October 6, 1857.

Str: The department received with surprise your communication of
the 3d instant from Philadelphia, announcing your immediate de-
parture for Venezuela. It was expected and understood that you were
again to visit this city prior to your return to Caraccas.

The object of this dispatch is to acquaint you that Mr. Ribas, chargé
d’affaires of Venezuela, has personally visited this city, and has had
my dispatch No. 53 read to him. The substance of that dispatch has
been also communicated to Mr. Ribas in a note from this department
of the 11th ultimo, a copy of which and of his reply are herewith trans-
mitted. He has in his personal interviews expressed the hope that you
would be permitted to delay the presentation of the subject discussed in
my note No. 53 to the government of Venezuela until he had himself
written to his government in relation to the matter, which he engaged
immediately todo. In compliance with this request, it has been thought
desirable to instruct you to await for a brief period after your arrival
in Caraccas the result of Mr. Ribas’s communications to his govern-
ment. You will doubtless be apprised of their decision in due time.
Should it not be made known to you, it will be proper for you to inti-
mate that you have been instructed to receive that decision in behalf
of your government before presenting in formal terms its demands for
the adjustment of the Aves Island claim. In the event of unnecessary
delay in rendering a reply, you will then be governed by the instruc-
tions contained in my No. 53.

IT am, sir, your obedient servant,

LEWIS CASS.

CHARLES Hames, Esq., cc.

Mr. Hames to Mr. Cass.

No. 40.] LEGATION OF THE UNITED STATES,
Caraccas, October 31, 1857.

Sir: I have the honor to inform you that having embarked at Phila-
delphia on the 3d instant, by the first practicable opportunity after
leaving Washington, I arrived at Laguayra by a direct passage of
twenty days on the afternoon of the 23d instant, and the next day I
reached this city.

284 AVES ISLAND.

Bearing with me from Washington your instruction No. 53, under
date of 31st August last, I received at Philadelphia just before em-
barking your Nos. 54 and 55, both under dates of 9th September last,
and on arriving at Laguayra I found in the hands of Mr. Consul
Golding your No. 52 of 25th May last, with its large packet of specified
duplicate and original inclosures. I have thus received at last, either
in duplicate or original, the long missing numbers from the depart-
ment 37, 38, 44, 45, and 46, the detention of which is explained in your
No. 52, and I can now congratulate myself upon having the complete
series of numbers from the department up to your No. 55 of 9th Sep-
tember last, inclusive, which is the latest communication received from
you.

I beg leave to express by this first opportunity after the receipt of
your No. 52 my high and grateful appreciation of the commendatory
terms in which it refers to the manner in which, in my note of the 31st
of March last to Mr. Gutierrez, I urged and sustained before this goy-
ernment the ‘‘ Aves’’ reclamation.

Mindful of the instruction contained in your No. 53 ‘‘to lose no time”’
after my return to Caraccas in bringing that question to ‘‘the renewed
atttention’’ of this government, and fully conscious of the new power
with which the reasoning and the conclusions of that important paper
clothed the reclamation, I on the second. day after my arrival here,
addressed to Mr. Gutierrez my note of the 26th instant—a copy of
which I transmit inclosed—asking at his earliest convenience an official
conference with him on that subject. His reply under date of the next
day, 27th instant, a copy and translation of which I also inclose, ap-
pointed the conference of the 29th instant, and informed me that this
government had, during my absence, through its diplomatic agent at
Washington, ‘‘commenced an understanding’’ on the subject with the
government of the United States. The conference took place at the
hour appointed.

I opened-the subject by refering to the terms of my note, and ex-
pressing the hope that he was now prepared to make to me on behalf
of his government an acknowledgment of the claim. He replied by
reference to the terms of his note, and added that a definitive or at least
full reply in the case was now nearly completed, and at the moment
under consideration by the council of government; that it would be
-sent to Washington very soon, he trusted by the first opportunity. I
informed him that he could send direct to the United States on Tuesday
next, (3d proximo,) and he said that he believed it would then be ready,
and would use every effort to do so.

I then said that I trusted he was prepared now to assure me that the
reply would admit the preliminary point of the lability of Venezuela
in the case.

He replied that it was out of his power to give me now any assurance
as to that or any other point of the reply, which was still under consid-
eration.

I told him that it was then my duty, under my instructions, to assure
him—/irst, that in the judgment of the United States the liability of
Venezuela in the case was too clear for further discussion, and that my
government had for some time past considered discussion on that point

AVES ISLAND. 285

as closed; secondly, that the President of the United States could not
consent that the adjustment of the claim should be procrastinated, and
that longer delay in its acknowledgment must result in serious injury
to the friendly relations of the two countries. I added that other points
were embraced im my instructions which were of a definitive character,

but that in view of his statement that his reply was to be given at once, _

and as I did not doubt to be promptly made known to me, I would take
the responsibility of limiting myself for that interview to the two
declarations above made, which were manifestly important.to be known
and kept in view by the Venezuelan government in framing its reply
in the case. I said further that I might also conclude to wait two or
three days longer before asking a special audience of his excellency,
the President, with a view to the full execution of my instructions;
that I would consider the propriety of this course, and advise him of
my conclusions.

- He replied, that as to the discussion being closed, Venezuela had a
right also to her own views on that point; but that the matter being
under consideration at Washington, he did not see how it could be
further discussed here.

I said, in reply to this, that I was not here to reopen discussion, but
primarily to make known to him, in the words of my government, and
upon its rendered reasons, its position as to the point of liability, and
to receive his answer as to that point, which I hoped might be speedily
given in a satisfactory sense.

As I rose to take my leave, he said that he trusted that the United
States would only ask for justice in the case.

I told him nothing more was demanded, but that I trusted that jus-
tice in the case would be speedily done by Venezuela, and thus the
conference closed.

_ My course, in deferring for that day the reading to Mr. Gutierrez

of your No. 53, may not be, perhaps, in the strittest compliance with
the letter of that instruction, but I trust the department will consider
the discretion exercised by me as warranted by the statements made
to me by the minister and the state of the case.

To-day, after careful consideration of the whole subject, I have
deemed it proper, in view of my instructions, to request, in conformity
with my intimation to Mr. Gutierrez, a special audience of the Presi-
dent. I have endeavored to draw up' this request (copy of which I
inclose) in such a manner as to induce, if possible, this government
to frame their pending reply in the case in a satisfactory sense, and
give meyromptly the proper assurance in regard to it. It is my pur-
pose to be governed in some degree by what his excellency may say at
the audience, in then determining whether to read my instructions to
him at once, or to wait some short time longer. I suppose the audience
will take place on Monday or Tuesday next, being the 2d and 3d
proximo.

I hope to send you an account of any further proceedings which
may take place in the case on or before the 3d instant, by the same
vessel which carries this dispatch.

286 AVES ISLAND.

With the highest respect and consideration, I have the honor to be
your obedient servant,
CHARLES EAMES.
Hon. Lewis Cass,
Secretary of State.

Lucation or THE Unirep StartEs,
Caraccas, October 26, 1857.

Sir: The undersigned, minister resident of the United States, hav-
ing returned to Caraccas to resume his official duties near the govern-
ment of Venezuela, under special instructions to lose no time in bring-
ing ina prescribed. form to the renewed attention of the Venezuelan |
government the whole subject of the international reclamation now
pending between the two governments, in relation to the expulsion
and exclusion by the Venezuelan public force, of certain citizens of the
United States, from the guano island of Aves, in December, 1854, -
has now the honor, in pursuance of those instructions, to request an
official interview with the honorable Minister of Foreign Relations,
and that he will appoint such early time for that purpose as may be
compatible with his convenience.

The undersigned with pleasure avails himself of this first occasion —
since his return to Venezuela, to offer to Hon. Seftor Gutierrez the as-
surance of his distinguished consideration.

CHARLES EAMES.

Hon. Jactnto GUTIERREZ,

Minister of Foreign Relations.

[ Translation. ]

REPUBLIC OF VENEZUELA, DEPARTMENT OF FoREIGN RELATIONS,
Caraccas, October 27, 18517.

The minister of foreign relations of Venezuela has the honor to ac-
quaint the honorable minister resident of the United States that his
note of yesterday to the undersigned has been received, giving infor-
mation of his return to Caraccas to continue his official functions near
the government, and that in virtue of instructions respecting the sub-
ject a the Island of Aves, he desires an interview with ens under-
signec

The executive power is advised of Mr. Hames’s return, and has
directed the undersigned to observe to him that, during his absence
from the country, the government, having in Washington a minister
of the republic, has commenced an understanding in “relation to the
question of the Aves through that agent with the government of the
United States. As to the “conference solicited, the undersigned will

%

AVES ISLAND. 287

receive Mr. Hames next Thursday, at one o'clock, p. m., to-morrow,
being a fast day.
The undersigned hastens to reciprocate to Mr. Eames his assurance
of distinguished consideration. °
JACINTO GUTIERREZ.
Hon. Cuaries Hams,
Minister Resident of the United States.

LEGATION or THE Untrep Srarzs,
Caraccas, October 31, 1857.

Siz: The undersigned, minister resident of the United States, with
reference to his note of the 26th instant, to the reply of the honorable
minister of foreign relations thereto under date of 27th instant, and
to the official conference in pursuance thereof, held on the 29th instant,
has now the honor to make known in writing to the government of
Venezuela what he has already mentioned to the honorable minister of
foreign relations in the conference referred to, that he is charged with
a communication of an important and definitive character, to be made
by the undersigned in person, without delay, and in a prescribed form,
by the authority and in the name of his excellency the President of
the United States, to his excellency the President of this republic, in
relation to the Aves reclamation, now pending between the two gov-
ernments.

The undersigned, therefore, in pursuance of his instructions, and for
their due execution, has the honor to request a special official audience
of his excellency the President of the republic.

Considerations of the greatest weight, arising out of the origin,
nature, and history of this reclamation, and the attitude of the two
governments in respect to it, combine with the grave tenor of the in-
structions under which the undersigned is acting, to make it his impera-
tive duty to request, as he now requests, that the audience solicited
may take place at the earliest time compatible with a proper and per-
fect consideration of his excellency’s convenience.

The undersigned renews to the Hon. Sefior Gutierrez the assurance
of his distinguished consideration.

CHARLES HAMES.

Hon. Jacinto GUTIERREZ,

Minister of Foreign Relations.

Mr. Gutierrez to Mr. Cass.

[Translation]

REPUBLIC OF VENEZUELA, SECRETARYSHIP OF ForEIGN RELATIONS,
Caraccas, October 31, 1857.

Aves Island constitutes one of the Windward Islands, which are

situated in the Caribbean sea. The government of Venezuela sent a

4

288 - AVES ISLAND.

garrison thither, in the month of November, 1854, upon learning that
in this, and in other national islands, strangers had clandestinely
entered and were removing the guano from its deposits. Some Amer-
icans Were found in the act of loading three vessels with guano.
They made no opposition to Colonel Domingo Dias’s landing, who
had been commissioned to visit the islands and to prevent persons,
having no right to them, from making use of them. Neither did
they offer any resistance to the two officers who had accompanied the
colonel, nor to the ten soldiers who went ashore after those officials,
there to remain as a garrison—nor yet did they prevent, the taking in
of water, provisions, &c., &c.; but, on the contrary, assisted the oper-
- ation by their own launches. The vessel was nothing more than a
small schooner, which carried not more than twenty-five or twenty-
seven men, with as many muskets, one four-pounder, a few provisions,
and some packages of powder. As soon as communication was estab-_
lished, Colonel Dias put the first questions to them, for the purpose of
learning the cause and object of their presence on the spot., They did
not answer that they were engaged in a lawful occupation, making use
of a certain article which was theirs, the United States’, or the whole
of mankind’s; but they acknowledged that they had gone to other
islands of the republic, and thence taken some of the same produce,
and afterwards came to Aves Island to do the same thing, as they
considered the spot as one where it would be more difficult for the
national authorities to discover them. Thereupon, as Colonel Dias
declared to them the nature and object of his commission, notifying —
them that it was imperative that they should leave the island; they
spoke to him of the expenses and losses which their undertaking had
caused them, appealing to his humanity to allow them, in order to
recuperation, to continue digging out the guano. The Colonel moved
to compassion, deferred to their request, although unauthorized to do
so, under the condition that the government should approve his con-
duct; moreover, and upon their solicitations, and for their greater
security, he agreed to give them the permit prayed for in writing;
this so much gratified them that they beset that officer with attentions ;
offered to supply him with provisions, of which he stood in need; put
the arms belonging to them under his protection, and finally deported
‘themselves like men who had just been the recipients of a priceless
favor. In the permit, signed by the two individuals who, in the name
of two American companies whose agents they purported to be, di-
rected the excavations, the title of Venezuela to the island was recog-
nized, by an act of spontaneous will on their part, and without the
least shadow of violence.

Colonel Dias retired, leaving in the island a single officer, with ten
’ men as.a garrison, to which were added fifteen more men when, on
the 21st of said December, another war schooner landed there, which,
having put them ashore, made sail for St. Thomas. Upon his return
to Aves, the commander was informed by the officer to whom super-
vision over the island had been intrusted, that the permit granted by
Colonel Dias was abused, which permit was restricted to the comple-_
ment of the cargo of three vessels, and was subject to the approbation
of the government, which declined to ratify the permit; besides this,

AVES ISLAND. 289

that the laborers had failed to comply with his orders; in the mean-
time, three brigs and two ships had anchored and were receiving car-
goes. This led toa new notification to the Americans that they should
leave the island. They did so, without requiring the use of force to
compel them to it; nor did they protest in the act itself, or afterwards,
against their ejection.

Upon Colonel Dias’s arrival, there were two American vessels, with
two-six-pounders, eighty laborers, something over two hundred weight
of powder, besides arms, such as rifles, muskets, guns, pistols, revolv-
ers, pikes, carbines, cutlasses, in addition to the laboring implements,
which might be used as arms. Yet, though all these means of defense
gave them a decided superiority over the few Venezuelans mentioned,
they did not resist them; a conduct which will admit no other possible
explanation than that of a conviction, on their part, of all absence of
right to make use of an article which they knew to belong to Vene-
zuela.

About the end of December of the same year of 1854, an agreement
was made in Caraccas with Mr. J. D. Wallace, an American citizen,
which permitted him and those whom he might associate with himself
under certain conditions, to take guano from Aves Island and the
other islands of the republic in which the article might be found.
The contractors, among other obligations, bound themselves to pay a
certain sum, for the amount of which Wallace drew on the United
States, in favor of this government; and as the stipulations were not
complied with, and as this failure caused the protest of the drafts and
the consequential damages resulting from it, the executive power was
reduced to the necessity of declaring an annulment of the contract.
This resulted in an application made to the government of Venezuela
by the other Americans, to whom Wallace had ceded his rights, asking
a redintegration. of the annulled contract, or the arrangement of a new
one with them, and, with slight differences, like to the former agree-
ment.

Trusting that its decision would be respected, which was one in
consonance with justice, and provoked by the conduct of the contract-
ors, the government had proposed to manage the guano islands in a
suitable manner, and so as to derive the highest advantage from them.
It made an announcement to that effect, and promised to frame the
necessary regulations, communicating its intentions to the diplomatic
agents of the nations represented in Caraccas, and therefore to the
minister resident of the United States.

On some occasions Mr. Hames had spoken of the affair of the Amer-
icans who had been on the island. He had given to understand that
they might prefer some claim. But the licentiate Francisco Armada,
the Secretary of Foreign Relations, ever denied their right to do so;
and when, as a conclusive argument, he used that which was supplied
- by the paper which they had signed and which was delivered to Colonel
Dias, it was fairly perceived that it struck the minister resident with
force; and this is borne out by his note of the 20th of December, 1856,
which gives the assurance that the case had been submitted to his gov-
ernment as a preliminary step to their procuring and considering the

Ex. Doc. 10 19

290 AVES ISLAND.

explanations of the parties interested. Out of this grew the declara-
tions which accompanied the demand of last December.

In the course of September, 1855, Mr. Pickrell came to Caraccas as
the representative of the Philadelphia Guano Company, and from the
fact of the annulment of the contract with Wallace, which had been
transferred to them. From that time that matter claimed Mr. Hames’s
attention, in preference to all else. Presented to Mr. Pickrell, he
became his inseparable companion; the advocate of his cause; inter-
vening in the discussion of all the points debated with him; coming
daily to the government-house urging its settlement; purporting to
take the Secretary of Foreign Relations and of the Treasury to his
residence, in order not to lose a single moment, even on a holiday;
offering to smooth all difficulties in the way of the new arrangement ;
and wielding, as a powerful instrument, the certainty of trouble with
the United States. Every one of these is a clear indication that he
had taken this business at heart, and that his ministry was not con-
fined to merely good offices. Mr. Hames intervened in the matter
more largely than Mr. Pickrell. In this connection it now occurs,
and the fact 1s recorded in a memorandum, that in the first interview
of the Secretaries of State and of the Treasury with Mr. Pickrell, at
which, as at all other subsequent ones, Mr. Hames was present, doubts
were expressed on the part of the organs of the government as to the
validity of the powers of this private agent, because they contained no
clause which, as in all like cases, should make his acts binding upon
the company. This observation, not addressed to Mr. Hames, and by-
him not allowed to be translated for Mr. Pickrell, and not understood
by him, because it had been made in the Spanish language, Mr. Hames
answered with the statement that the instrument was in due form, and
that, from his knowledge of the laws of the United States, he could
assure the ministers that the company was bound by whatever act
which Pickrell, as their attorney, might perform, although it was not
actually.so mentioned in the instrument.

At the same interview Mr. Eames stated that he had been instructed
to make a reservation, and that was, that the good offices which he
was directed to interpose in behalf of Mr. Pickrell were not to be
understood as affecting a claim made and likely to be presented by
Americans, who were in possession of Aves Islands before its occupa-
tion by the government of Venezuela. At the same time Mr. Aranda,
the Secretary of Foreign Relations, pointed out the impropriety of
blending two distinct and, to a certain extent, incongruous questions.
For in the very act, on one side, of supposing the right of Venezuela
to the Aves Island to be perfect, its ownership was, on the other, con-
troverted; whence he concluded that, in his opinion, if both phases
had to be held up, it were better to take up that to which allusion had
been made in the former instance.

Mr. Pickrell’s business proceeded in its course, under the patronage
of Mr. Hames, the minister resident. As, however, it did not do so
with all the desired speed, and as the propositions of the government,
initiated for the purpose of bettering the improper and vicious contract
of 1854, did not suit the present negotiators, Mr. Eames carried his
good offices to the point of considering it most urgent and absolutely

AVES ISLAND, 291

indispensable, in order to remove the dangers which impended over
the peace of both republics, directly to inform his excellency the Pres-
ident of the gravity of the case, for which purpose he begged that an
interview should be granted to him. Through the merest condescen-
sion, the President granted the interview; and what then took place,
according to the very language of the legation, tends to set forth, in
unobstructed light, the course pursued by Mr. Hames under the circum-
stances, and how he applied all the efforts of his energy to procure the
preponderance of Pickrell’s claim, subordinating Shelton’s to its suc-
cess.

It will immediately strike any one that the motive and the object of
such an audience were merely to create a deep impression on the mind
of the government touching the consequences which might result from
its refusal to go into the new contract, for which Pickrell had applied,
and that all else that was said in the course of that audience was mere
tinsel, with which it was attempted to conceal the threat. After recap-
itulating the facts, according to his mode of viewing them, up to the
time of Mr. Pickrell’s arrival in Caraccas with dispatches, which went
to say that, in view of the public and, indeed, national importance of
the business, he should, by his good offices and by the personal and
official influence of the legation, sustain Mr. Pickrell in the defense
and in the recognition of the rights conferred on citizens of the United
States by the contract of 1854. Mr. Hames then touched upon the
case of those Americans by a repetition cf what he had already stated
before. His excellency having, thereupon, remarked that it was pre-
ferable, in the first instance, to adjust this claim, or that the company
should assume its adjustment upon themselves, he declared that such
a thing was entirely out of the range of possibility, not only from the
essentially distinct character of both questions, and on account of his
duty separately to treat them, but because, also, he was not yet fully
in possession of all the information required for a proper preparation
of the claim for Aves Island. He added that he considered himself
authorized, in view of recent instructions, to state again a conviction
that the government of the United States would deem it its duty to
sustain the right of the claimants to a full indemnification.

‘The undersigned,’’ he continues in the statement of that confer-
ence, ‘‘then passing to the more immediate objects and aims of Mr.

‘Pickrell, the agent of the company interested in Wailace’s contract,

begged his excellency to consider the extremely unfortunate aspect

‘ander which all this guano question, between Venezuela and the citi-

zens of the United States, presented itself to that government. That
a whole series of grave and highly disagreeable circumstances, each of
them a separate occurrence, although all bore a common relation with
rights of American citizens in the guano islands, had followed each
other in rapid succession. The violent dispossession of American citi-
zens who were on Aves Island, the making, at the same time, of a
contract with Wallace, its annulment by Venezuela, baffling the lawful
hopes of the interested parties, and inflicting great injury upon them,
were facts, each of which tended to aggravate the other, and to com-
plicate any negotiation which might seek a satisfactory settlement of
all or of any of them. The undersigned earnestly begged his excel-

7

292 AVES ISLAND.

lency to consider the serious and new complication and difficulty which
would follow, if the agent of the company, who was then present, should,
through a refusal of Venezuela, find himself in the impossibility, after
so many efforts made by him, even with the help of the good offices of
the legation of the United States, to come to some friendly arrange-
ment with the view of protecting the rights and interests which he was
representing. That it was the duty of the undersigned to submit, with
deepest respect, to his excellency that, in the judgment of the govern-
ment of the United States, this guano question is one of great and
public interest, involving not only important rights and considerable
interests, but also a great question of good faith, the settlement of
which, according to the circumstances under which it had arisen, could.
not but have its effect on the relations of both countries; and that the
undersigned, whilst carefully avoiding any expression which might,
perhaps, be construed into an unfriendly or threatening sense, or one
not thoroughly compatible with the most perfect consideration for the
dignity of the government of Venezuela, deemed himself, notwith-
standing, obliged frankly to inform his excellency that the people and
the government of the United States, alike, took a deep interest in this
matter, and that they would, with extreme pain and regret, witness
any proceeding, now had by Venezuela, which might result in loss or
injustice to those of our citizens interested in the said contract. On
the other hand, the undersigned did not hesitate to say that, in his
judgment, an opposite course, in accordance with which Venezuela
should recognize and restore in a satisfactory manner the rights of those
citizens, would produce an excellent effect on the relations of both
governments, not only as an act of good faith in itself, but also because
it would leave, on its own character and circumstances, the considera-
tion and settlement of the very serious question, which had previously
arisen between the two governments, as to the violent occupation of
Aves Island by Venezuela, without the new aggravation and compli-
cation which must result from the persistence of Venezuela in a policy
productive of great loss and injury to other citizens of the United States
interested in Wallace’s contract. The undersigned, in continuation,
submitted to his excellency some observations going to show that the

_ undersigned concurred in the justice and the reasonableness of the

conditions under which the agent of the company was disposed to enter
into a new contract, in lieu of that which had been made with Wal-
lace; and with these words the statement of the undersigned closed.
The undersigned experienced great satisfaction at hearing his excel-
lency the President state, in answer, that, moved by the desire of
manifesting his deep interest in the full maintenance of the good faith
of the Venezuelan government, and especially his ardent wish of culti-
vating the most friendly relations with the government and the people
of the United States, he had resolved that a satisfactory arrangement
should be made; and that the government would immediately turn its
attention to it through the action of its ministers.’’ .
Although this memorandum, extended by Mr. Eames himself,
has softened the harsher expressions which he used in that con-
ference, and which rung from the President this exclamation:
‘“What! threats, Mr. Hames!’’ still it may be clearly enough per-

AVES ISLAND. 293

ceived that he exerted himself in exaggerating the proportions of
things. At one time he aggravates the conduct of Venezuela to the
highest pitch; at another he lingers on the extent, which the diffi-
culties might reach if the application for a renewal of the contract
were set aside; now he invests the question with an importance not
its own; then he suggests that the relations of both countries depend
upon its settlement. In the sequel he represents the people and the
government of the United States advocating, with unparalleled zeal,
the cause of Wallace’s transferees, and here he favors us with a
glimpse at a recourse to force should Pickrell’s application not be
granted. Hssaying then to enforce the expediency of yielding to it,
he adds that it would produce an excellent effect on the relations of
both governments, and would signally conduce to the settlement of
the other claim. Lastly, on that occasion, speaking with his excel-
lency, he goes even into the details of the contract which Pickrell in-
tended to make, as if an agreement had already gone that far, and as
it were to leave no doubt as to the character of his intervention.

It is proper to observe that the note referred to, signed by Mr.

- Hames, in which it was his object to record the passages of that con-
ference, is the only paper that issued from the legation touching
Pickrell’s affair, and that there is absolutely nothing said in it about
not including Aves Island in the contract which might be made with
him. The contrary is shown by the tenor of his observations. If,
besides this, it be borne in mind that he alternatively demanded the
restoration of Wallace’s contract, which included Aves Island, or the
conclusion of another similar one, it will easily be ascertained that
he did not combat the insertion of Aves in the Pickrell arrangement,
as he now pretends to have done.

So far as concerns the note of the 8th of March, 1856, here follows
the showing made by the records in relation to it. Holland having
contested the right of Venezuela to Aves Island, the consul general of
the former presented to the government of the latter an ultimatum, by
which it demanded a recognition of its rights to and a withdrawal of
the Venezuelan troops from the Aves Island. This having been
bruited about, Mr. Hames applied to the department of foreign rela-
tions in writing, for the purpose of inquiring whether the statement
were correct. He was answered that, in fact, the recognition and
evacuation of Aves Island within three days had been required, and
that the government were considering the claim. Thus officially in-
formed of transpiring events, he wrote the communication mentioned
above, which, in substance, amounted to his interjecting opposition to
a cession of Aves Island to Holland, on one part, for the claim which
was said to be pending in relation to it between the United States and
Venezuela, and in favor of certain Americans, who had discovered the
guano and occupied the island, and on the other part, for the rights to

- the island conferred upon Pickrell. It is true that he there alluded toa
' pending claim, which existed nowhere, although it had afforded matter
for Mr. Hames’s conversations with the secretary of foreign relations,
but circumstances prevented this assertion from being noticed and tri-
umphantly refuted. Even he himself did not consider that to be the
proper manner of setting up the claim; and that he never again

294 AVES ISLAND.

recollected such a note is a self-convincing proof of the fact. The
mention, therefore, which he then made of the matter was an indirect
or incidental one; one which would not have occurred had it not been
preceded and caused by the question with Holland. So that, had not
the latter supervened, the note had never been penned. Add to this
that Mr. Hames grounded the delay of discussion on the want of docu-
ments, and as those must have been the declarations which he subse-
quently transmitted, and as the last bears date April 12, 1856, it is
but right to infer that they could not be in Caraccas before May or
June following, and that hence it was not in his power to submit the
claim through his note of the 8th of March. Finally, on the 20th of
December, 1856, he formally presented the claim in writing, accom-
panying it, as vouchers, with simple of copies of various declarations
taken by justices of the peace and notaries in the United States, with-
out any intervention of the party against which they were intended
to work, and urgently requiring at once—‘‘ First. An indemnification
for all the actual losses resulting to American citizens from their ex-
pulsion from Los Aves. Secondly. Indemnification for the loss of the
probable gain which they would have derived from the guano taken
thence, with the authority of Venezuela, from the day of their occu-
pation to that of the settlement of the claim. Thirdly. The settlement
of the question of legitimate interest which they have in the guano
that may still remain in Los Aves at this time, either by abandoning
it to them or by any other mode that may be satisfactory to both goy-
ernments.’’

The government of Venezuela allowed no delay in framing and
expressing its opinion adverse to the application, and this in keeping
with repeated declarations made to Mr. Hames every time that he
touched this question in the various conferences. The answer was
directed to show, first, the absence of all urgency in a matter which
had been allowed to slumber for two years, or merely mentioned by
accident during that time, and that solely to announce its existence;
secondly, the force of the document, in which the right of the republic
was admitted; thirdly, the title of the republic to the ownership of
the island; fourthly, the incapacity of individuals to acquire interna-
tional dominion in competition with a State; fifthly, the consequences
of the present expensive possession of this country; sixthly, the impos-
sibility under which the United States had laid themselves of main-
taining that the island did not belong to Venezuela, when the reverse
was shown by the protection which had surrounded Wallace’s success-
ors with so lively an interest; seventhly, the nullities of the delara-
tions brought forward in support of the demand.

To these Mr. Hames answered in extenso, concluding that, for his
part, the discussion was closed. The executive power, by the sugges-
tion of the council, to which the records had been transferred for con-
sultation, then deemed it his duty to take some measures to embody
the real state of things, and, among others, to procure from Colonel
Dias, and the other officers who accompanied him in his mission, @
declaration of all that had occurred in its course. By courtesy, and
for fear that their testimony should suffer from the ldches adverted to
in the proof brought forward by the claimants, the secretary of foreign

AVES ISLAND. 295.

relations gave notice, in writing, to Mr. Eames of the day, the place,
and the hour when their declarations were to be taken, in order that
should he desire to be present in the act, he might do so, as he had
expressed orally a desire to that effect, when it was first proposed to
receive the depositions. But although Mr. Sanford, who was inter-
ested in the question, since he came exclusively to hasten its dispatch,
was present when the declarations were taken, the American minister,
altering his mind, abstained from an appearance, alleging, as an ex-
cuse, that, in his judgment, as well as the judgment of his government,
the facts were fully evolved and abundantly proved. He then gave
notice that if a final answer were not sent to him by the 6th of June,
he would be under the necessity of proceeding to the United States, in
compliance with instructions, to account in person for the delay, and
state the uselessness of his efforts. Under these circumstances, it
became necessary to intimate to the minister that the admission of his
reclamation had presented serious difficulties, the most stubborn of
which looked to the document signed by the two agents of the com-
panies which were taking out the guano, and attempted to be set aside
by a mere statement of the interested parties themselves, to the effect
that the document was a consequence of the compulsion and fraud
exercised by the officer to whom they delivered it. It therefore became
necessary that what had really occurred should be ascertained; be-
cause, if the statements of American citizens were entitled to the cre-
dence of their legation, Venezuela, on her part, could not disregard
the reports of her citizens, much less so of those who, from the posi-
tion which they occupied and the duties which they performed, were
entitled to every respect and consideration. She could not but defend
her rights, whilst there was no way of ascertaining what had occurred
but that of interrogating those who must be acquainted with the occur-
rences. It was supposed that the object was to discuss a question
between equal States, and that Venezuela had the right to set forth
her objections, rebut proofs adduced by the claimants, and take time
to deliberate; it was for this reason, and because, also, that the goy-
ernment would not have its defense made in the absence of, and with-
out notice to, its opponent, that the minister was invited to be present
at the investigation. Now, if, in the judgment of Mr. Hames, the
facts were fully evolved and abundantly proved, such was not the
opinion of the government and of its secretary of foreign relations.
Ht could not be pretended that Venezuela was bound to subscribe to
extrinsic judgments merely because they were such ; for. in that case,
discussion were nugatory, and nothing more were required than to
amerce the government at the discretion of the claimants. But besides
this, it was required that the decisions of the executive power should
be given within a short and peremptory period, made codrdinate with
special and previously arranged circumstances, in which the American
legation found itself without the slightest relation to the state of
affairs between the two republics. Several times did Mr. Hames state
in conversation that he had asked and obtained from Mr. Marcy, the
Secretary of State, leave to visit his country; he even exhibited an
official note in which this was mentioned, one, particularly, from Gen-
eral Cass in reference to the treaty pending between the two countries,

296 . AVES ISLAND.

who had thought him en route, by virtue of the leave given to him.
It is to be supposed that Mr. Hames might have desired to be in Wash-
ington by the time of the inauguration of the new President; still he
would delay his departure, in order to take along with himself the
approval of a treaty, and the recognition of the pretended duties of
certain Americans. Thus it was that whilst the treaty was imperilled
in the Congress, he abstained from pressing the other matter. So
soon, however, as the crisis had been gone through, he returned to the
charge with increased vigor, as if, on one side, he was impatiently
fretting for his absence from the United States, and on the other, for the
lack of a speedy and favorable settlement of the Aves claim, which
held him here as though in a state of imprisonment. In this stress,
he considered that by throwing out a threat in the shape of a peremp- .
tory demand, and an application for his passport, he would advance

the attainment of his wishes; thus leaving room for a belief that the

relations of both countries were in danger, and a dissemination of the

alarm which this rumor was calculated to produce, especially in the

midst of the peculiar condition in which the republic stood under the

reform of its organic laws.

From himself, perchance, proceeded the news, published also in an
American newspaper, to the effect that his excellency, the President,
had refused to ratify the treaty concluded in the course of last year.
There is the truth of the case. That convention was approved by the
congress of Venezuela just as it had been negotiated by the plenipo-
tentiaries, but a like result was not obtained in Washington, for the
American Senate agreed on all its articles, with the exception of some
words in the twenty-eighth article, which were stricken out. Speak-
ing of this result, Mr. Hames said that it ought not to prevent the
ratification, as the legislature of this country had had the Spanish
text only under their eyes, and the Senate of the United States the
single English text; the change made in the letter was in no way
essential, much less so as the omission went to lay down, with greater
accuracy, the limits of one of the grounds of extradition, leaving the
English clause mutilated, with the same sense, however, as the Span-
ish gives in its integrity. The secretary of foreign relations answered
him, that he did not judge that the executive power had the right to
alter the text of a law, such as the treaty had already become, even
though it should be in the copy of the English, which was presented
to the congress as a faithful version of the Spanish text; that an omis-
sion from one part of the treaty required a like omission from the
other part; and lastly, that due attention would be given to the matter
before definitely passing upon its merits. Besides, Mr. Hames had
not by him the instrument of ratification, nor was it possible that it
should have been sent to him pending this difficulty. Hence it is
absolutely inaccurate to say that the executive power declined, in that
instance, complying with an obligation contracted towards the United
States. The difficulty—and the thing is self-evident—has grown out
of their own action. But it may be said that through a wish of
charging our adversary we impute assumed facts to him.

Now, such a degree of exasperation was exhibited by Mr. Hames
that, as though some serious offense had been committed against him,

od

AVES ISLAND. 297

he was beyond measure irritated because his wishes were not realized;
and about the time of his departure he gave out, both personally-and
through persons of a high character and of social standing, dnd of
others, his echoes immediately about him, that he had taken the res-
olution of using the engine of the press, whose nursling he was, to
wage war against Venezuela until he should compel Messieurs Buchanan
and Cass to follow the popular movement, intending speedily to return
accompanied by public vessels.

After demonstrating by the foregoing historique the groundlessness
of the charge of dilatoriness brought against Venezuela, and also
how inaccurate it is to assert that the question has been for more than
two years pending between the two governments, the undersigned
proceeds to consider the arguments on which Mr. Hames rested for
insisting on his demand with a confidence so overweening as to deem
it unnecessary to continue the discussion.

It is supposed by him that because Venezuela did not deny the main
facts upon which the reclamation is grounded, such a denial must be
taken as an admission of the facts themselves. In this category it is
laid down in the first instance, ‘‘that the claimants through their
agents were the first discoverers of the guano on the Aves Island.’’
No attention was paid to this point, because it was considered to be of
no importance to the question. Passing by this—that the matter is
not proved, and that it might even be impossible to prove the negative,
which it'involves, and let it be granted that it is invested with all the
truth which is claimed for it, and then what would be the inference
drawn from this? Does any one acquire a right to another man’s land
because he had seen it before the lawful owner had done so? Then,
indeed, would the effects of property be extremely precarious; all
things connected materially with property would have to be concealed
from the sight of those who have no right to it, for from the moment
that they should be discovered by them they would be lost to the rightful
owner. The fruits which the tree may have produced in the absence
of its owner, the buried mines of the earth, the existence of which.
were unknown; the rain-water which from time to time may come
down from the clouds; all other matters embodied in the earth and not
previously noticed, might be contended for by him whom chance or an
unlawful act had putin the way of happening upon them before’ the
owner of the property. The American legation maintains that Aves
Island, though discovered by Spain, does not belong to her; so that it
considers that the discovery by itself confers no title even when the
question turns upon the property ‘‘nullius;’’ and, withall, it considers
such as a source of property with respect to what is incorporated with
the possessions of ‘‘somebody.’’ ‘The first and essential requisite of
occupation is that the thing to which a claim is preferred shall be the
property of no one. ‘‘Quod autem nullius est, naturali ratione occu-
- panti conceditur.’’ Then itis that ownership can result from posses-
sion, which constitutes the second requisite. Now, the claimants having
failed to prove that Aves Island was ‘‘res nullius’’ when their agent
went thither, no force attaches to their allegation as to their landing
and taking possession of it, &c. If the island was another’s, these
acts, far from conferring the least title upon them, made them liable

298 AVES ISLAND.

to its owner, in the first place, for a tort committed by the invasion of
his territory, and, in the second place, for the value of all the produce
thence derived, and for the damages accruing from the act of spoliation.
Yet so great is the impossibility of giving credit to circumstances of
such enormity, that Mr. Hames studied particularly to escape from the
stress in which he was placed; and if he is told that ‘‘it was incum-
bent on the Americans to show that it was lawful for them to go to
Aves Island and dig out the guano which it might contain,’’ he answers
that the burden of proof does not lie with them, but that it does on
Venezuela. They could not ignore the fact that a spot situated so short
a distance from other places amply known—a spot which must have
been frequently observed by navigators; which bears, in its very
name, the mark that was stamped upon it by Spain, its discoverer
and sometime owner; which is assigned to that power by various ©
works on geography, and sometimes to Holland also by some writers—
which is mentioned and described in various books—which is laid
down on almost every chart published—which figures im certain
maps as connected with Saba through a sandbank; that such a spot
must necessarily belong to some one, and hence that it was not allow-
able to suppose it thitherto undiscovered, and open to occupancy and
possession. This consequence acquires additional force when certain
indubitable antecedents are recalled to mind. Enough, therefore, to
adduce the recent and notorious fact that Americans in the course of
1853 pretended to take possession not only of Lobos Islands, ‘in Peru,
to which they dispatched vessels to take out guano, but of variousislands
also of Venezuela, upon which they went, settled down, and clandes-
tinely continued, availing themselves of the circumstance that they
were uninhabited and that their owner put them to no use. Such was
the case with Monjes Islands, upon which, as on Aves Island, were
found houses, tools, and other necessary appliances to carry out the
pursuit in which the usurpers were engaged, and where the American
bark Tom Corwin, Captain Hiram Bart, was detected, on her trip from
Boston to said islands, whither she had sailed to take in the guano,
which was, as stated, to be delivered by the people whom they had
working there. Such was the case with the Heronanos Islets, where
the armed schooner General Monagas found a merchant schooner of
the United States, which, making off suddenly, left ashore eighty
sacks of guano for want ef time to take them in. Such the case with
Pié Island, which, being examined by said Venezuelan vessel, gave
evidences of bags of guano, ropes, pickaxes, &c., and where after-
wards, on the 3d of October, 1855, the same schooner, General Mona-
gas, discovered the American schooner White Swan, of Baltimore,
Captain J. Henry, who acknowledged that he had proceeded from
Laguayra; that he was taking in guano, of which he already had ten
tons aboard and sixty-five bags ashore, and then, by flight, escaped a
trial and its consequent penalty. Facts of this nature warrant a con-
viction on the part of Venezuela that the conduct of the Americans in
Aves Island was not more lawful than it was in the other mentioned
islands.

If, as they assume, they were the first discoverers of the guano of
Aves Island, and that they could therefore make that discovery the

AVES ISLAND. 299

basis of their appropriation of it, with like reason might they claim
the guano of other Venezuelan islands, since it cannot be seen why
they should not thus apply the new and unauthorized principle which
assumes that the discoverer of a thing which is an adjunct to another
thing, though it should belong to another person, acquires rights to
that thing without taking in consideration those of the owner of the
principal.

But, it is added, neither does Venezuela deny ‘‘ that the claimants,
a short time after the discovery of the guano in Aves Island, in the
summer of 1854, took possession of it, at no slight cost, and peaceably
and uninterruptedly kept that possession for several months; nor that
they intended to keep such peaceful possession until they had exhausted
the valuable substance of that article.’’ —-

The silence of the government on* that point does not imply an
acknowledgment of what is here asserted, and it proceeded from the
Same cause mentioned above. It has been said and it is proper here

to repeat it, in order that it may remain deeply impressed upon the

minds of the American Cabinet, that the principal question under
view is not the discovery of this valuable, nor the expenditures which
the appropriation of it entailed, nor yet the period of time for which
they intended to continue possessing the island; for if there was no
good faith on the part of the occupants, all these considerations must
be of no avail. To substantiate that good faith, they would have to
bring forward the facts, which would go to establish this other fact, that
Spain, which is admitted to have been the discoverer of the island, had
determined to abandon it, because she wanted it no longer. Then,
indeed, would it appear to have passed from a condition of private
property of a nation to that of a derelict, and to come within the pos-
sibility of being acquired by any one. But presumptions are not suf-
ficient ; let the doctrine of Kliiber speak: ‘‘ From the moment that a
State leaves or abandons the ownership of an ‘sland, for instance, it
ceases to constitute a portion of its territory, and thenceforward belongs
to no one, (res nullius.) From that moment it is lawful for any other
State to appropriate it to itself and reduce it to its dominion. Stillan
unmistakable declaration, either expressed or tacit, is required to put
an end to the previous right; but as no mere conjecture or supposition
can be equal to such a declaration, much less can it work the forfeiture
of the property by prescription.’”’ (Kltiber, Droit des gens, &c.)

But on the other hand, in the proof, if it be proper so to call it, ad-
duced by Mr. Eames in support of his action, there is nothing to sustain
the assertion that the claimants went into heavy expenses in the under-
taking. To judge by the declarations of the functionaries of Venezuela
who were on the island, and whom the distortion of truth could in no
way benefit, there was not there more than a dozen of huts, frame
built, a sort of a wharf, some sixty or eighty wheelbarrows, the neces-
sary spades, some timbers from the wreck of a vessel, and other articles
procured from the same. So that, if to what is herein described be
added the freight of the vessels engaged, and if we lay aside all inter-
ested exaggerations, we will have a correct idea of the extent of
the speculation. What the value of the huts was, all of them built
_ of old stuff, may be inferred from the fact that the best of them was

300 : AVES ISLAND.

sold by Lang, its owner, to Lieutenant Nicholas Pereira for the price
of one pound sterling. The others, with the exception of one, which
was ceded for the use of the troops, and which belonged to Gibbs, were
unroofed and ruined by the Americans themselves, previously to their
departure from the island. |
Neither is it probable they could retain a peaceful and undisturbed
. possession of the guano, as it is well known that the Dutch held the
island to be theirs, and other nations preferred claims to it, and as,
according to their affirmation, they were visited by an English vessel,
the captain of which told them that his nation had purchased the island
from Spain, as appears from the deposition of the above mentioned
Lieutenant Pereira. If they were not driven more early away from
their lawless occupation, the fact is to be ascribed, so to say, to the
seclusion of the spot, or, in other words, to its latent position, a cir-
cumstance which induced the Americans to select it for their opera-
tions; for, having first gone to other islands of Venezuela, as they ©
‘were easily seen in the act, they withdrew from them under no other
impulse than that of fear. It is a point not to be overlooked in this
question, that the very individuals found on Aves Island were the
identical ones who had already gone to other national islands.

It is readily conceived that they should have desired to carry away
all the guano which they found; but, unfortunately, willis not the
best rule of right, nor yet a thing which can justify the self appropria-
tion of another’s property. Let it be noted that hitherto no answer
has been attempted to be made on the subject of guano exported from ~
Venezuelan territory, in every place where it has been explored and
robbed by the Americans, who have, at the least, made themselves
liable for the value of the substance which they have taken, and for
damages consequent on their act, not to speak here of the wrong com-
mitted against national sovereignty. If the government of the United
States claims the guano of Aves Island on the ground that the claim-
ants have acquired a right to it, and because the island was not within
the jurisdiction of Venezuela, it is but reasonable that, even setting
aside Aves Island, they should take upon themselves to answer for the
guano which has been taken from places to which the dominion of
Venezuela has never been questioned, and from which fact, therefore,
they never could have claimed the guano as their own. Will it be
maintained that Los Hermanos, Los Festigos, and Los Monges islands
constitute no portion of her property? Mr. Eames, in his reply, has
ignored this important chapter, although the note of this government
laid down, in explicit terms, the responsibility of the American gov-
ernment to the government of Venezuela for said appropriations of
guano. Now, therefore, we must insist on this reclamation, which is
grounded upon manifestly proved usurpations. That cabinet which
is so observant of justice, cannot fail admitting that on both points, we
have it on our side.

In Mr. Eames’ opinion, the abstaining also of putting in a denial
goes for an acknowledgment that the Americans ‘‘ were violently ex-
pelled and driven from such possession in December, of that year, by
the government of Venezuela, acting through the means of a public
armed force.’’

AVES ISLAND. 301

This cannot be allowed to pass by without suitable explanations.
These rest on the declarations, made under oath, of Colonel Domingo
Dias, First Lieutenant Nicholas-Pereira, and First Commandant Man-
uel Cotarro, persons who intervened in the matter, as officers of the
Venezuelan navy, during the occurrences at Aves Island. Their depo-
sitions are in no way to be confounded with those presented by Mr.
Eames. In this lies she difference; the latter came from unknown
individuals; the former from public functionaries; the latter were
taken without the knowledge of Venezuela; the former might have
been witnessed by Mr. Hames, who was invited to hear them, and
failed to be present, as was done by Mr. Sanford; in the latter, the
very persons interested are witnesses and parties both ; in the former
no such disability is found ; in the latter, interest, stimulated by ava-
rice, figures as the prime mover ; in the former, the love of truth alone
controls; the latter do not fitly accord with the circumstances of the
event ; the former are most easily explained by them ; the latter can-
not cease to be mere copies, although they come through a very respec-
table channel ; the former are transmitted through an equally worthy
channel, and are, moreover, ‘accompanied by certificates in all due
form ; in the latter, perchance, it might be impossible to find the wit-
nesses and subject them to the test of cross-examination ; in the former,
the declarants may be brought forward whenever desired, and be sub-
mitted to the searchings of counter-proofs, or any other scrutiny of
truth.

Now what did occur, according to the unvarying statements of those
persons of character, is as follows: On the 12th of December, at 7, p.
m., Colonel Dias arrived at Aves Island, where he found three vessels
at anchor. In the morning of the following day he went ashore to
ascertain what they [?] were doing there, and found that they had
come to take in guano; were on shore with eighty men digging it out
and putting it on board; having in their possession, among other
articles, two pieces of artillery, six-pounders, with the necessary am-
munition, some fifty muskets, thirty rifles, thirty cutlasses, twenty-five
pikes, fifty pairs of pistols, and balls, eleven to the pound, revolvers,
and two hundred weight of powder. Whilst, in the Venezuelan war-

schooner, there were not more than from twenty-five to twenty-seven

soldiers, with that number of guns, and a four-pounder. When the
Americans were asked what they were doing there, they said that they
were working out guano, as they had done in other islands of Vene-
zuela ; for instance in Hermanos Island, whence they took a schooner
load ; that they had settled upon Aves Island, because their discovery
there, by the republic, could not prove so easy. They alleged no right
to the island, but, on the contrary, they admitted that it did not be-
long to them or to the United States. When, in pursuance of his
order to prevent the clandestine exportation of guano from the repub-
lic, Colonel Dias directed them to stop digging, they then stated to
him the losses which they had suffered, and the expenses incurred,
begging him, in view of these considerations, to allow them, for hu-
manity’s sake, to continue loading the three vessels there anchored,
which had not guano enough on board to serve as ballast.

Having obtained leave to do so, yet still doubtful whether it would

302 AVES ISLAND.

not be withdrawn, the Americans asked that it might be laid down
in writing, in the event of their falling in with some Venezuelan ves-
sels, to which they would have to account for the guano on board. It
was accordingly given to them in that form, and the document, which
they signed, was written in one of their huts, and on paper and with
pen and ink which they themselves supplied, Mr. Lang acting as in-
terpreter, and with such familiarity with the Spanish language that
he corrected a few trifling mistakes which appeared in the instrument.
In the act of their subscribing it, there was not a single government
soldier on shore ; and besides this, they asked that the officer who was
to remain on the island in command of the garrison, should not pre-
vent said vessels to continue taking in their cargo.

So voluntary on their part was the act of signing that they mentioned
the names of the houses to which they belonged, which it would not
otherwise have been possible to express in the document. They not
only returned thanks to Colonel Dias, but they also forced upon him °
various presents, some of which he carried to Laguayra. Besides this,
they afforded assistance to the garrison, and put their artillery and
armament at the disposal of the officers and under the flag of Vene-
zuela. Colonel Dias shortly after went away from the island, leaving
upon it ten men only, under the orders of First Lieutenant Nicholas
Pereira, with no more arms than a musket apiece for the soldiers, a
few bundles of cartridges, and the small cannon, with twenty-five
charges, for the landing of which, and of the water and provisions, the
Americans sent out their launches, instead of opposing such landing,
when they might have done so in view of their superior force.

Another Venezuelan armed schooner arrived at Aves Island on the
21st of December. It there found three brigs and two square-rigged
vessels taking in guano, although the permit given by Colonel Dias
did not go beyond allowing them to take in the complement of the
cargoes of the three vessels which he had met on the 13th of December,
and this under condition that the permission should be approved by
the government of Venezuela. He landed fifteen men, whom he had
under his orders, and proceeded to Santomas to put in fresh water.
On the 24th of December, 1855, an armed British brig bore up for
Aves Island, and stood off whilst the captain went ashore, and expressed -
his astonishment at meeting with Venezuelan troops there, because the
island had been purchased from the Spaniards by his government.
This was his language, and not that ascribed to him by J. James
Wheeler, to the effect that the Americans had a right to hold the island
in the name of the United States. The Venezuelan war schooner re-
turned from Santomas on the 29th of December; and, as it became
known that the Americans were misapplying the permission granted
to them by Colonel Dias, and which was confined to completing the
loading of certain vessels, subject to the approbation of the government,
which was withheld, they were notified on the 30th to quit the island.
The Americans did leave it without any demurrer, departing with their
vessels in the evening of the 30th, and leaving no guano collected, for
they had stowed it aboard in proportion as it was dug out.

. The result of this is: 1st. That the Americans acknowledged that
they had no right to be on the island. 2d. That they recognized the

AVES ISLAND. 303

right of Venezuela to said island. 3d. That they could, with the
greatest ease and best success, have resisted the landing of the incon-
siderable Venezuelan force, or expelled it after it got on shore. 4th.
That they had abused the conditional permission which had been
granted to them after the intimation to depart had been given to them.
5th. That a mere order, without resort to violence, was sufficient to
enforce such departure. 6th. That they themselves would have ren-
dered a resort to force lawful in the event that it should have proved
necessary to use force. 7th. That they had vessels in which they could
embark, not some merely, but the whole of them, and go to the nearest
place and extend protest; and that, instead of such a course, they con-
tinued availing themselves of the permit, which they now allege was
interfered with in violence, error, and fraud. 8th. That they were
well informed of the tenor of the document, and signed it with perfect
understanding of its contents.

Mr. Hames proceeds and says: ‘‘That it is not denied that, since
such expulsion, Venezuela has continued occupying and possessing the
island and its guano, for her own benefit and against those claimants,
through the appliance of such armed force; nor is it denied that great
losses and damages, both immediate and consequential, have resulted
to their detriment from said expulsion and adverse possession.’’

The advantage which Venezuela may have derived from Aves Island
is but trifling; for, from her having sold the guano for an insignificant
price to other individuals belonging to the United States, the profits
of the transfer must have inured to them, and this, too, from the
pressure exerted on this government in the name of that of the United
States, as it has already been amply stated. When the executive power
annulled Wallace’s contract for, among numerous reasons, a failure to
comply with its conditions, it had intended to manage the administra-
tion of the guano interest in such a way as to be beneficial to the
nation, and to derive from it all the advantages which it held out; but
Mr. Hames became so urgent for a reinstatement of the former contract,
or the execution of a new one, little differing from the annulled instru-
ment, that trifling were the advantages secured for the State; whilst
the main of those advantages were, in the transaction, reserved for the
citizens of the United States who were so zealously sustained by their
legation in Caraccas. Had it not taken up Pickrell’s contract with all
its might, nothing is more certain than that it would not have been
made, and in that case the guano might have been disposed of in a
desirable and proper manner. It should, therefore, not be forgotten
that the profits spoken of have accrued to the Americans, and that
nothing but the turn which the question took, and the extent to which
it went, added to a wish to preserve friendship and peace between the
two nations, prevented Venezuela from deriving the best returns from
the guano, both in Aves Island and in the other dependencies of the
republic. A statement to that effect was made by the Secretary of the
Treasury and by the Secretary of Foreign Relations in the reports of
their respective departments, transmitted to Congress in 1856, of which
Mr. Eames must have been informed, as both were sent to him. Be-
sides this, he had taken cognizance of the report of the former minister
_ whilst it was still passing through the press, and, without demurrer

804 AVES ISLAND.

to the truth of its contents in relation to this question, he merely
begged the minister, who acceded to his request, to soften somewhat
the warmth of tone in which he had, naturally enough, written one of
its paragraphs.

Had Mr. Eames pursued another line of conduct; had he abstained
to intervene in the manner in which he did in the Pickrell question ;
had he seasonably presented Shelton’s claim—matters would not haye
come to the state in which they are now found. But he postponed it
because he could not, at the time, bring it forward for want of the doe-
uments in the case ; and this delay of his, or of the parties in interest,
which must necessarily have resulted in this, namely, that the scanty
price which some Americans paid for the guano would not be sufficient '
to satisfy the claims of other Americans, is now imputed to the goy-
ernment, although it had urged the examination of this question in
preference to every other. It is easy to conceive how the prosecution
of pretensions so diverse, and even mutually conflicting, may have
contributed to bring about existing differences. Pickrell’s defense
necessarily supposes and implies a most unequivocal recognition of the
property of Venezuela in, and her sovereignty over, Aves Island ;
whilst that of the claimants stands out against such a right, and leads
to the conclusion that the pretended employment of force against them
is a sufficient title to acquire sovereignty, but not private property,
although both of these things are one and inseparable. Hither the
title of the country is good—and in that case it must cover the emi-
nent and private domain of the island—or it is vicious, and cannot
justify any form of acquisition. To make a show of disclaiming do-
minion over a thing in the very act which recognizes it—an act vol-
untary, and more than voluntary, since it was Mr. Hames himself who
was urging on a contract with Pickrell for the working of the guano—
is a matter which cannot be easily understood.

The losses and damages that may have resulted to the Americans
occupying Aves Island—losses and damages which, as it has been
seen, must be very limited—are to be referred to those who, knowing
that they had no right to it, proposed at all hazards to occupy and use
that island, without reflecting that from the moment that their pro-
ceeding could become known, they would have to depart thence and
suffer all the consequences of their unlawful act.

On the other hand, the government holds it to be a fair cause for
surprise, that up to this hour it should not have been clearly informed
as to who are those who claim indemnity at its hands for the occur-
rences at Aves Island. If, as it. appears, the claimants are all the
individuals to whom the declarations produced have a reference, then
there is just ground to affirm that the island continued to be in com-
mon, its occupation by some only notwithstanding, and that, by the
fact itself, the republic was not excluded from participating in the
island. Indeed, the depositions speak of Shelton & Co., of Lang &-
Delano, and lastly of George W. Nickels; but the American legation,
in order to be self-consistent, and under the supposition that the ques-
tion turned upon res derelicta, were bound to maintain that those only
of the claimants who first really took possession had acquired the dére-
lict. If the claimants, protected by the American Cabinet, are reduced

AVES ISLAND. 305

to the partners of the first two companies, we cannot see the object of
adding to the other declarations the deposition of Nickels who, in the
month of January, 1855, went with a vessel to take out guano at Aves
Island, and who, upon being prevented doing so by the garrison, ex-
tended his protest on his return to the city of New York. This point
has already given rise to certain observations laid down in the first
answer of the government; but Mr. Eames has absolutely neglected to
notice them in his answer. Admitted, as they are, their consequences
ought to be accepted, instead of being resisted, as is the case.

Mr. Eames further remarks, that ‘‘it is not in clear and express
terms that the expulsion of those claimants, in the manner in which
it was made, was a lawful and justifiable act; nor is it anywhere
denied, expressly and absolutely, that the government of Venezuela
lies under the obligation of repairing the wrong which it inflicted
upon them by its act.’’

In the very words used by Mr. Hames it was not necessary to de-
clare the judgment of the government in relation to the act which
gave rise to the claim; it was enough that the latter should have been,
as it was, met by a denial, to understand that it did not admit the
principle of responsibility which was attempted to be fastened upon
the nation. All the arguments adduced in the first answer made to
the American legation converge to a defense of the republic from the
charges brought against it, and a repelling of the indemnifications
demanded at its hands. That answer made out the absence of right
on the part of the Americans to appropriate the guano of Aves Island
to themselves; their assent to the right of this country to the island ;
the origin of its acquisition; the fact that the government of the
United States had recognized it through the protection which it gave
to Pickrell’s claim; the inability of individuals to acquire in compe-
tition with a State; the contradiction of Mr. Hames in asserting that
the island was derelict, and never had been subject to the jurisdiction
of any power, and that, as a thing common, Americans might enjoy
it, but other individuals or nations might not. It concluded with a
hope, that in view of the reasons adduced, the equitable Cabinet of
Washington would desist from a claim which there were powerful
grounds not to admit. It was impossible more formally to deny the
application. Its rejection necessarily involved a denial of the asser-
tions upon which it rests.

But the expulsion so repeatedly mentioned did not take place.
Neither the Executive power, nor the force acting in its name, had the
most remote intention of offending the Americans, although they lacked
no right to proceed against them. Convinced that Aves Island was
the property of the State, they exercised one of the rights derived from
property, namely, that of preventing its enjoyment by other persons,
a course which can in no way inflict injury on any one. But even
‘should not dominion over the island reside in Venezuela, the conduct
of the opponents has taken away from them all right to complain of
violence. First, when Colonel Dias arrived at the island, he there
found thxee vessels at anchor, the smallest of which was 500 tons and
another one 800 tons. Hngaged in loading them with guano, were

Ex. Doc, 10 20

806 AVES ISLAND.

eighty individuals, who had in their possession two pieces of cannon,
with their supply of balls, forty or fifty rifles, fifty pairs of pistols,
guns, revolvers, muskets, pikes, axes, two six or eight pounders, and
two hundred weight of powder. They were holding the island, on
which they had built some frame cabins. The Venezuelan schooner,
from her small size, the small number of her soldiers, not exceeding
twenty-seven men, from its armament, composed of so many muskets
and a four-pounder, would have in vain attempted to force the Ameri-
cans in any way. As it has already been seen, in spite of the difference
existing between the two parties, no opposition was made to the ap-
proach of Colonel Dias, nor to his landing, and that of the troops,
which afterwards took place; but on the contrary, they assisted in
such landing by sending their launches out.

The Colonel reaches the shores, and asks them the cause of their
presence on the island. Perhaps they may have answered that they
had no account to give to any one of their rights? Without alleging
that the United States had any right to the island, nor they as to a
property in common, they answered that they had been upon other
islands of Venezuela, in many of which they had found and taken guano;
for instance, in the Hermanos, where they had loaded a schooner ;
that they had selected Aves Island because it was not so easy for them
to be discovered by Venezuela. They made no difficulty in acknowl-
edging to that officer that Aves Island belonged neither to the Union
nor to themselves. He, therefore, bearing in mind that he had orders
from the government to prevent the continued stealthy exportation of
guano from the national islands, notified them to put a stop to their
work. But they represented to him the losses which they had sus-
tained from one vessel’s going upon the bar, and another one’s being
stove, the outlays for the cabins and wharf, begging him, in consider-
ation of this, and for humanity’s sake, to allow them to continue load-
ing those vessels which had not yet a sufficient quantity of guano.
Then took place all the circumstances already adduced as to the per-
mission of Colonel Dias, their expressions of gratitude, &ec.

In the instrument of grant, or permit alluded to, they, with all
desirable clearness, averred that the Aves Island belonged to Venezu-
ela; and if, in their act of invoking the protection of their government,
any thing can be deduced from their silence in relation to said permit,
it must be that they considered their application destructive of their
pretensions. Indeed, Mr. Hames, in his note of the 20th of December,
1856, states the following:

‘‘In this attitude stood the question of this claim when first pre-
sented, and though its reception then by the government of Venezuela
was, in the judgment of the undersigned, as he then stated, by no
means in conformity with the rights of the claimants, and the just
expectations of the government of the United States in their behalf,
still the case might probably at that time presented no insuperable
obstacle to a prompt adjustment, but for the appearance among the
documents pertaining to it, and in possession of the Venezuelan goy-
ernment, of a paper purporting to be the original of an ‘agreement:
entered into and signed at the ‘Aves’ Island, on the 13th of December,
1854, by Commander Dias, of the Venezuelan navy, of the first part,

AVES ISLAND. 307

and the agents of the American occupants of the island of the second
part, by which the possession of the island would seem to be ceded to
the Venezuelan authorities by those agents upon certain terms and
considerations therein set forth. This paper, the undersigned, when
properly assured of its authenticity, deemed fit, as new matter in the
case, to be referred to his government, in order that explanations of it
by the claimants might be received and considered. These explana-
tions, showing that the alleged ‘agreement’ was entered into and
signed by the agents of the claimants under duress, [fraud, in the
Spanish translation,] and upon compulsion, were considered by the
government as sufficient wholly to invalidate and avoid the instru-
ment.’

This passage puts it beyond all doubt that the claimants, at the time
of soliciting the interposition of their government, took particular care
in concealing from it the existence of such a document; and, in fact,
it is seen that Mr. Hames says not a word about it before he learned
here that it was in possession of the government of Venezuela, and
among the documents bearing upon the question. He therefore turns
his attention to scrutinizing its authenticity, and satisfied of it, he
deems it proper to refer it to the Department of State, as it appeared
to be ‘‘new matter in the case,’’? which required explanations which it
was necessary to consider. He accordingly holds up the claim and asks
for further instructions. When he is told that the explanations have
been received, and that they are sufficient for the invalidation of the
instrument, he then prosecutes the matter anew, and lays it down in
written form.

Who communicated a knowledge of the existence of this document,
it is immaterial here to state. Certain it is that the information did
not come from the Secretary of Foreign Relations, who, from the very
fact that the question was not yet opened, although conversations in
relation to it had taken place, did not deem it expedient then to make
use of said proof. But afterwards, however, Mr. Hames exhibited to
him a copy of the permit, with which he had been furnished, and most
urgently begged to be allowed to see the original, for the purpose of
comparison. His wishes were complied with. We are, for this rea-
son, compelled to believe that the document in the power of the gov-
ernment is not the only one that had been drawn up, since Mr. Hames
procured a copy of it from some other source, Besides this} there is no
doubt that the claimants, from the very first, had a knowledge of the
permit, from the copies taken by the agents. This is corroborated by
the language of Shelton’s application to Mr. Marcy, the Secretary of
State, under date of May 14, 1855, in which he speaks as follows:

‘Said Dias, on the 13th of December, had drawn up and signed a
paper in the Spanish language, (which is on file in your department, )
which Captain Gibbs, our agent, was, under the circumstances, con-
strained to sign, and which Dias called his ‘‘permit.’’ It has been
‘asserted that we admit the right of Venezuela to Shelton’s Island, and
that of Captain Dias to eject us. In other words, that we were vio-
lators of the territory, and this, too, in the paper which Dias gave to

Captain Gibbs.’’
The following passage from Charles H. Lang’s declaration, speak-

308 AVES ISLAND.

ing of the document which he signed with Gibbs, ‘‘ that said Domingo
Dias finally drew up a document in Spanish, copy whereof is annexed,
ordering the rest to sign it or immediately to leave the island.’’ And
especially this from the declaration of N. C. Gibbs, in which he speaks
of the document, and affirms the following: ‘‘I have since seen here
the translation of the paper which Dias signed, a paper which I know
was sent to the Department of State of the United States by Mr. Shel-
ton, as soon as he received it from me in February, 1855, and also a
copy of the copy signed by Lang and myself, and retained by Dias,
and a translation of it procured by Mr. Shelton from said department,
and from said translations it appears that such papers are substan-
tially the same.’’

The Americans having assented to the right of Venezuela to the
island, and being left at liberty to continue, conditionally, working
out the guano, Colonel Dias departed, leaving on the island no more
than one officer, attended by ten soldiers numbering as many mus-
kets, together with a four-pounder piece. What has already been
related then took place.

Now, then, let us revert to three periods of time: the arrival of the
former Venezuelan schooner, the occurrences after its departure and
until the appearance of the second one, and the facts attending the
arrival of the latter, and inquire whether it be possible that violence
should have been offered to the Americans? It is a morally and physi-
cally impossible fact, standing in contradiction of what the world
knows of the courage, of the daring, of the love of property, and of
the other qualities which mark the American character, that, with the
elements of power which the Americans had at command, twenty-five
soldiers, with Colonel Dias’s single small vessel, should have reduced
to fear eighty men, armed with every form of weapon, masters of an
island, for the defense of which they relied on three vessels supplied
with artillery, threatened, in the possession of their own, with having
their property wrested from them, and with interruption in the peace-
able exercise of an industry from which they expected great profits and
fabulous wealth. The violence which annuls contracts is that which
neither can be avoided nor causes empty fear. Who, then, shall say
that eighty men, under most favorable circumstances, were not in a con-
dition to defy twenty-five men at every disadvantage, or, at least to re-
lieve themselves from their fears by a withdrawal from the island? But,
it may be asked, they made some show at least of resistance, to evince
their sense of the unlawful order which commanded’ them to depart ?
Nothing of the kind. They appeal to Colonel Dias’s benevolence.
They beg of him permission to continue taking in guano. They thank
him for it in courteous words; compel him to eat with them, and add
a few presents bespeaking their gratification. Was this the natural
conduct of men who had yielded to compulsion; of men who must
have been excited and enraged by the act of those who had just wrung
from them so important an acknowledgment; men who could have
room for no other thought than that of wreaking signal revenge; men
who, in the act itself, would have proceeded to protest and demand
reparation, supposing that they had not made the protest before Col-
onel Dias himself? But they went further in their exhibition of com-

AVES ISLAND. 309

pliance and good will. As Colonel Dias, from the small number of
his force, entertained great fears for its safety, he requested the Amer-
icans to put their arms under his charge, and they acceded to the re-
quest. ‘To crown the whole of the transaction, they pledged them-
selves to give the garrison all the assistance which it might require.

In the second period, between the 13th and the 21st of December,
ten men only were detailed to keep watch over the island. The facil-
ity of baffling their charge, and even driving them from the post,
became still greater; because, in proportion as the force of Venezuela
decreased, just so was that of the Americans increased by the arrival
of additional vessels. The three which were at the island on the 13th,
stood five by the 31st of December.

By the reinforcement supplied by the second schooner, the garrison
then amounted to twenty-five men, a number equal to that which had
been originally detailed. The American force had also increased, and
from what cause has already been stated.

But it is not necessary ta go out of the question for arguments to:

prove that they had everything in their favor, and that they did not
seek to offer any resistance. Let the statement made to the Depart-
ment of State by Shelton himself on the 14th of May, 1855, speak
for itself:

‘“‘Tt has been asserted that we admitted the right of Venezuela to
Aves Island, and that of Colonel Dias to drive us away from it! In
other words, that we were violators of the territory, and this, too, in
the paper which Dias gave.to Captain Gibbs. Entirely frivolous, and
more than frivolous, is such a pretense. We could have resisted Dias,
.at the cost of a few lives on both sides. Perhaps we should have done
$0; we believe that we could have easily captured the whole of his
force, soldiers and vessels included, had we had recourse to arms and
the spilling of blood. But we preferred to rely on the protection of
our country. We yielded to Dias’s orders because he was an officer
of a sister republic of America, with which our country was at peace,
acting under her authority and with a public force. We suggest to
you, and to the President, that our moderation was commendable; the
orders and conduct of Captain Dias were unnecessarily harsh; his sol-
diers took possession of some of our tools, utensils, materials, and
provisions, driving away the laborers from the cabins. The losses
which we have suffered in consequence of this, amount to many thou-
sands of dollars., We were prevented from taking in the guano which
was ready to be stowed aboard of our vessels, and constrained by the
military force to abandon the island, utterly failing to load some of
our vessels, whilst others had to take in but a part of their cargo.
‘The extensive contracts, therefore, which we have made to furnish
guano cannot be executed, and hence we have suffered heavy injury.
The salaries of our laborers, who could do nothing on account of this
unlawful and unjust interruption, amount together to a heavy sum.
The whole of the expenses which we have incurred in the business is
a dead loss. We have had to pay forfeit for charters and expenses of
demurrage and damages; besides all this, the consequences which have
directly resulted to us from the outrage, are such that they may be easily
foreseen by any merchant. They are embarrassing, and may well

310 AVES ISLAND.

lead to our ruin were not a speedy satisfaction granted to us. We beg
of you to consider the whole matter, and we trust that it will induce
you to take immediate steps for our protection.”’

Here it is laid down by the Americans themselves, and with bound-
less arrogance, that they might, and even should, have resisted Colo-
nel Dias, and that they deemed it an easy thing to capture both him
and all his force, including his vessels. Thus speaks Shelton, although
the Venezuelan officer had but a single vessel under his command.
According to his showing, his enormous expenses, his numerous labor-
ers, the ruinous consequences of his submission, the frivolous pretense
of Colonel Dias, the consciousness of his rights and of his physical
force, the certainty of his victory, confidence in the protection of the
powerful United States, the important interests of every kind involved
in his business, and the lawfulness of his occupation ; each and all of
these impelled him to prevent the interruption to his undertaking.
But, as they did not act in this way, and as he, who has it in his
power, and holding it to be his duty, to do one thing, yet performs
the reverse of it, may well charge himself with the consequences, it
will not appear strange that Venezuela should maintain that they, if
perchance they had any right, which is denied, stripped themselves of
that right by their own will, and are bound to put up with the conse-
quences of their own acts. No one will believe that they obeyed, in
consideration of the fact that Colonel Dias was an officer of a sister
republic of America, at peace with their country, and was acting under
the authority and through the public force of that republic. Persons,
convinced of the rectitude of their conduct, and of an intended unjust
violence against them, would not have abstained from the use of their
force against any one thus attempting to offend them, and especially
against the agents of a small and weak Spanish-American republic, as
they are all small and weak, which from those very circumstances
could not impress them with much respect. We find the proof of this
in the fact that they have explored other national guano islands and
taken that article from ‘them, without any regard for the rights of their
lawful owner. What, they, who in the pursuit of gain, did not hesi-
tate to commit a tort, for they had been clandestinely exporting guano
from other islands of Venezuela, would have abstained from justly
repelling a causeless injury inflicted by functionaries of that State, in
the transactions of Aves Island! But let us suppose them controlled
by a feeling of humanity. What stood in the way of their leaving
the island and entering protest, reserving to themselves the rights
which they now claim to have, instead of using the permit as they did,
and thence disqualifying themselves at all points, for denying Vene-
ziela a right, which they recognized, while on the island ?

The result of all that has been said is that the departure of the
Americans was not the upshot of a lawless and unjustifiable act, but,
on the contrary, the consequence of one assented to and authorized by
themselves. They did not then, nor afterwards, make opposition or
enter protest, either against the document or the order to leave. And
if they did, where is it? Why has it not been presented? For what
time and for what use is it held back ? :

Mr. Eames attributes great importance to the argument that, ‘if

AVES ISLAND. 31t

the claimants were, as against Venezuela, lawfully in possession of the
island when Venezuela found them, then surely they may rightfully
claim full reparation for being driven away by her public force,’’ be-
cause neither the fact or its inference has been either rebutted or de-
nied, nor yet has there been adduced any law, ordinance, or decree of
the republic, with the violation of which they are charged, and that,
therefore, the absence of such affirmations must be taken as an ac-
knowledgment.

Even though there were no express law forbidding the entrance,

appropriation, and advantages referred to, still no one could suppose |

them to be lawful, for the following reason :

‘‘Hvery State, therefore, has not only the right of sovereignty,
(imperium et potestas publica,) that is, the conjunction of all the sover-
eign rights and powers necessary to the ends of the State, but it is
capable also of acquiring and holding property. The right of State
property (jus in patrimonium reipublice,) consists in the power of ex-
cluding all other States, or foreign individuals, from the use and ap-
propriation of the territory and of all things lying therein. The
objects of this right are not only, first, the common property of the
society of which the State is composed, the public domain or the public
property, properly so called (patrimoniwm reip. publicum) things,
the property of which so belongs to the State, that the use of them,
like that of private property, is exclusively and immediately destined
for the ends of the State; but also, second, the estates or the property of

individuals, (private property, patrimonium privatum,) put under the

protection of the State, as things that may and should equally subserve,
in case of need, the attainment of a general end; and lastly, property
without an owner, (adespota,) constituting a part of the territory of
the State, which is to be considered as unoccupied or abandoned, in
reference to that State only and to its subjects, but not in reference to
foreign States or individuals.” (Kliiber, vol. 1, p. 108.)

“The State property is coextensive with the whole territory of the
State, namely, with that portion of the earth, with its appurtenances,
over which the State independently and exclusively exercises the right
of sovereignty.”

‘Not only the public property and that of individuals, but the
property also which has no owner (adespota) and which is found in
the territory are at the disposal and in the sovereign power of the
State. Now, all things included within the territory being referable
to one of these three classes, the general rule obtains that everything
which exists in the territory of a State is adjudged to be subject to the
sovereignty of said State until proof to the contrary. For this reason,
not only the inhabited soil, but uncultivated districts also, and the
seas, contained within the boundaries of States, constitute a part of its
territory, and all the products, natural or created by human industry,
which the territory embraces, belong to the State.”’

‘““By virtue of the right of property the government may, to the
exclusion of all strangers, not only possess and use the territory of the
State, but also dispose of it at will, and increase it by the right of
accession.”’

“The right of State property being independent of all foreign in-

312 . AVES ISLAND.

fluence, the result is, 3dly, that the State may exclude every stranger,
not only from the occupation of things which have no owner, (adespota, )
and from the use of its territory in cases of necessity, but also from
any other use that might be made of them, without the other party
imflicting any injury, in any manner, upon him; such, for instance,
as in cases of transit or residence, of commerce, settlement, or acquisi-
tion. The State is free not to allow such uses save under certain con-
ditions and restrictions, such, for instance, as that of allegiance, of
the payment of certain imposts, of subjection during sojourn in the
territory to the laws of the land, particularly to the right of escheat,
(droit d’aubaine,) to treatment as a temporary subject, &c. If, in
some States, policy, self-interest, or the humanity of the government
have induced it not rigorously to exercise those rights; foreigners can-
not, therefore, require such deference as a matter of right, unless by
virtue of a convention, which cannot be supplied even by relations of
good neighborhood. ‘To arrogate such a use to one’s self would be to
violate territory and incur a treatment appropriate to an offender.’’
[These passages are extracted from Kliiber, Modern Law of Nations
of Europe, tit. 2, section 1, chap. 1, property of the State. |
‘‘Hivery nation has a right, peculiar to itself, as well as exclusive,
to the dominion of the whole of the territory which it occupies. This
right embraces two things: 1st. The domain, by virtue of which the
nation may use, for itself alone, the territory for its own wants, dis-
pose of it, and draw from it all the advantages of which it is capable.
2dly. The empire, or the right of sovereign command, by which it
ordains and controls, at will, everything that transpires in the land.
‘‘The right of absolute domain is necessarily a peculiar and exclu-
sive one; because, if one have a full right to dispose, as he pleases, of
a thing, it follows that others have obsolutely no right to that thing;
for, if the latter had any, the former could not freely dispose thereof.
The private domain of individuals may in various ways be limited and
restricted by the laws of the State—and it is invariably so by the emi-
nent domain of the sovereign—but the general domain of the nation is
full and absolute, seeing that there exists no authority on earth from
which it can receive any limitation. As a consequence, therefore, it
excludes all right on the part of foreigners; and, as the rights of one
nation demand respect at the hands of other nations, so no nation can
claim any right to the country of another nation, nor dispose of it or
of anything which it contains, without the consent of the latter
nation. The national domain, by a lawful title, extends over what-
soever the nation may possess. It embraces its former and original
_ possessions and all the acquisitions which it may have secured by titles
just in themselves or admitted as such among the nations, as by
cessions, purchases, conquests in lawful war, &c. And by possessions
of a nation, we mean not the lands alone, but also all the rights
which that nation enjoys.’’ (Vattel, Law of Nations, lib. 2, cap. 7.)
‘‘When a nation has duly occupied a territory the right of property
which, ipso facto, it acquires to all it parts, authorizes their use to the
exclusion of all strangers, and the disposal thereof in any manner,
provided it shall not injure the rights of third parties.’’ (Marten’s
Law of Nations, tome 1.)

s

AVES ISLAND. 313

“‘The country inhabited by a nation constituted into a political society
belongs to that nation by virtue of its right to exclude all the other
nations. ‘Two essential elements are included in this right—the do-
main, by which alone the nation can use the country for its wants and
dispose of it for every necessary object, and the empire, or right of
sovereignty and command, by which it ordains and controls at will all
the transactions of the land.’’ (Olmeda y Lem, Elements of Public
Law of Peace and War, vol. 1.)

‘CA State, independently of the exercise of sovereignty over its terri-
tory, has the right of acquiring and possessing property.”’

“The right of property includes the right of excluding all foreign
States or individuals from the use and disposal of the territory, and of
all things therein lying, or of prescribing laws and conditions for those
to whom the State may grant such uses.’’ (Diplomatic Treatise by a
Former Minister, vol. 2)

“The effects of domain consist in vesting a nation with the exclusive
right of enjoying its forests, mines, fisheries, and of generally appro-
priating to itself all the products of its lands and waters, whether
ordinary, extraordinary, or accidental; the right of permitting passage
or navigation through them, or allow it under determined conditions,
saying always the rights of necessity and of innocent use as well as
those defined by treaties or usage; the right of imposing taxes on
travelers or navigators for the use of roads, bridges, causeways, canals,
ports, wharves, &c.; the right of exercising jurisdiction over all sorts
of persons within its territory; ‘and the right of requiring entering or
passing vessels to pay the accustomed honors in recognition of its
sovereignty.’’. (Bello, Principles of International Law.)

“The exclusive right of every independent State to its territory and
other property rests in the original title acquired by occupation, con-
quest, or cession, and subsequently confirmed by the presumption re-
sulting from the lapse of time, or by treaties or other compacts with
foreign States.”’

‘This exclusive right includes the public property or the domain of
the State, and things belonging to individuals or corporations within
its territorial limits.’’

“The right of the State to its public property or domain is absolute,
and it excludes that of its own subjects as well as that of other nations.
The right of national property with respect to things belonging to
private individuals or to corporations within its territorial limits is
absolute, inasmuch as it excludes that of other nations, but with respect
to the members of the State it is merely superior, and constitutes what
is defined as the eminent domain.’’ (Wheaton’s Elements.)

‘‘When a nation takes possession of a territory which belongs to no
one it is deemed to occupy empire, sovereignty, and mastery over that
territory at one and the same time, because, admitting that it is free
- and independent, it cannot be its intention at the time of establishing
itself in that territory to leave to the other nations the right to com-
mand, or any of the prerogatives whatsoever which constitute sover-
eignty. The whole of the circuit to which a nation extends its dominion
constitutes the limits of its jurisdiction, and is called its territory.’’
(Lectures on Natural and International Law, de Felice.)

«

314 AVES ISLAND.

The laws hereinafter laid down, and ruling both in Spain and Vene-
zuela, were also violated by those who made entry in Aves Island and
other national islands, besides the principles of the law of nations
already quoted, which are so many laws to the observance of which
the nations are reciprocally bound.

‘‘Waif property, (bienes mostrencos,) the movable or self-moving
property that is found to have been lost or abandoned, and the owner
of which cannot be ascertained, is called mostrencos in Spanish, because
it is to be pointed out, exhibited, and published, in order that the
owner may be informed of its discovery and claim his right.”’

‘‘Waif property is not to be confounded with vacant or with ab
intestate property. Vacant property is that, which being immovable,
has no ascertained owner ; ab intestate property is that which remains
without an owner through the demise of one who has left no will, and
who has neither descendants, ascendants, nor collaterals to succeed to.
his rights. This three-fold class of property is alike in this—that all
of them lack owners, ascertained owners at least, whilst there is this
distinction—that waifs are movable, landed estates immovable, and
that ab intestate property may be both movable and immovable. Be-
sides this, property may be in the condition of a waif through loss or
estray; it may be vacant for causes sometimes unascertained; and
again, it may be ab intestate from the death of the owner. Notwith-
standing this, all these properties are commonly known under the
general name of ‘mostrencos’ property, to be pointed out, made patent, —
and reclaimed.”’

‘‘ By the law of nations the ‘mostrenco,’ vacant, and ab intestate prop-
erty ought to belong to the first occupant, because it is really res nul-
ius, no man’s property; but by the positive law, princes reserving to
themselves the right of occupation, have appropriated it as their own;
and that which belonged to no one they have, not without reason, ap-
plied for the common benefit. Our legislation has moved in this course,
and it gives to such property the forms which we are about to exhibit.’’
(Escriche’s Law Dictionary.)

If the authority of Venezuelan law be called for, although all the
quotations herein made work as law, we refer to the prohibitions in-
volved in the following paragraphs of the law on seizures of the 10th
of May, 1839, and in force in the year 1854:

‘‘Art. 2. The penalty of seizure shall extend to everything that may
have been landed, or may be found landing without a lawful permit or
landing, or intended to be landed without a manifest and a written
permit of the proper custom-house or competent authorities in ports
not declared open, on coasts, in bays, creeks, or rivers, in canoes, boats,
or other crafts, of what tonnage soever; and the vessel itself shall in-
cur the same penalty, with all its tackle and apparel.”’

‘Art. 8. To all the efiects of the foreigner which may have been
landed, and which may be found concealed, collected, stored, or depos-
ited, or in any other manner whatsoever in the houses, bays, stations,
or other points of the coast or uninhabited points removed from the
inspections of the custom-houses and of the ports of entry, which places
lie under suspicion of fraud from their locality and their proximity to
bays, creeks, rivers, or ports not open to entry.”’

*

AVES ISLAND. . Sole

‘CArt. 9. To every foreign vessel, with its tackle and appareland cargo,
which may be detected anchored in any of the ports not open to entry
in any roadstead, bay, creek, or river, without permit from some
custom-house, for the purpose of receiving cargo of the produce of the
country in conformity with the exportation law.

“‘ Art. 10. To every national or foreign vesssel which may prove to
have made a voyage from the ports or coasts of the republic to any foreign
point without a lawful clearance, and to every vessel, national or for-
eign, that may prove to have sailed directly from foreign ports to a
point or to a port on the coast not open to entry for importation.’’

Article first of the law of the 28th of April, 1854: ‘‘Immediately
as a vessel will have moored in any of the ports open to foreign trade,
it shall be visited by the collector, or by such deputy appointed to that
end, and by the chief of inspectors, where such shall be employed,
accompanied by a chief and one, or more than one, inspector. If the
vessel should have come from a foreign port and with a cargo, the
captain shall be held to exhibit his letter of clearance and the manifest
of the cargo, on which must be stated the name of the vessel, the nation
to which it belongs, the captain’s name, that of the port or point from
which it comes, the number of packages which make up the cargo,
specifying whether they are boxes, barrels, trunks, hogsheads, &c.;
stating, also, the numbers and marks, and the port for which the
articles are intended, the number of the consignees, in accordance with
the bills of landing that may have been signed. There shall, besides,
be appended to the manifest a list of the ship’s provisions and the other
stores on board, for sails, rigging, and other uses of the same. After
the visit, one or more than one inspector will remain on board. If the
vessel shall have come on ballast, the captain will merely be required
to exhibit his clearance and a detailed list of the provisions and stores
for ship use, and a formal and rigorous examination shall be had to
ascertain whether she really sails a ballast.’’

We further invoke the authority of all the other articles of this law,
a compliance with which can only be enforced in ports open for foreign
trade. Equally applicable are those which have force in relation to
all the requirements which it prescribes as to the manner of carrying
on exportation, and especially that article of the law of May 6, 1833,
as follows:

‘* Art. 1. No growth or production of any kind, intended for foreign
countries or ports, shall be exported except from ports open to foreign
commerce.’’

The law of the 11th of May, 1854, upon maritime inspection, amend-
ing the law of 1843, which contains a like provision, makes it the duty
of oe revenue cutters to observe the following requirement of the sixth
article:

‘Tt shall be the duty of the captains of the revenue cutters to take
to the nearest port of entry—

“Ist. All foreign vessels, which they may find in any ports not
opened to foreign commerce, having, on board goods, growths, and
products of any kind.”’

‘‘Ath, All national or foreign vessels, navigating from our coasts to
any foreign port, with or without cargo; provided that they shall

316 AVES ISLAND.

exhibit no documents showing that they have cleared from some custom-
house.”’

According to the law of the 15th of April, 1854, the ports open for
importation and exportation were those of Ciudad Bolivar, Laguayra,
Puerto Cabello, La Vela, Maricaibo, and Barcelona, for importation for
consumption only ; and for exportation, the ports of Cumana, Carupano,
Cariaquito, Cano Colerado, Barrancas, Pampatur, Juan Griego, Soledad
y Cumarebo; and, temporarily, the ports of Guiria and Maturin, until
the establishment of custom-houses at Cariaquito and Cafio Colerado.

With the exception of Margarita, there is no island of Venezuela in
which ports have been designated and opened for foreign commerce,
nor for any other object of any nature whatsoever; it is, therefore,
evident that the Americans could not lawfully, and without violation
of all the principles and laws which have been adduced, either anchor
at Aves Island, land thereon, or introduce houses and implements, &., _
certainly much less apply to their own benefit and export a product of
the territory, or one inherent to it, such as is guano.

Mr. Eames thinks that Venezuela cannot, with any show of reason,
deny the acknowledgment, to which we have already referred, ‘‘be-
cause it is a fact of universal notoriety that these claimants in landing
on Aves Island in June, 1854, and proceeding to make the best use
that they could of that desert island, did nothing more than what all
men had been at liberty to do, and which they would have done when-
ever they might have deemed it expedient, at any period anterior to
the existence of the republic of Venezuela, and during that of its
existence, without any kind of impediment, prohibition, or reclamation
of any government, and less from all, from the government of Vene-
zuela.’’

Mr. Eames has been contented to assert these facts without adding
any proof of their consistency, even of the slightest kind. But in view
of the multitude of Spanish laws which forbid access to the possessions
of his Catholic Majesty in America, and which are still in vigor in all
cases in which they have not been supplanted by other enactments of
Colombia and Venezuela, in which States, though the rigorous policy
of the ancient metropolis may have been relaxed, this prohibition has
been kept up in the manner already explained, it is no easy task to
secure belief for such assertions as these. It may be that, in some cases,
foreign vessels, driven by stress of weather and by storms, or availing
of the circumstances of locality and of the seclusion of the island, may
have approached it, and that masters and passengers both may have
visited it, as was done, it is said, by the Dutch for the purpose of fish-
ing and gathering birds’ eggs. These facts, however, admitting their
veracity, which we do not admit, would not make in the least against
the dominion of Spain or of Venezuela, because as transient and clan-
destine visits only are here spoken of, without the slightest idea of
appropriating the island and putting themselves in leu of its owner,
without his privity, they could in no degree influence the integrity of
his rights. If evidence were adduced thatthe fact of such visits came
to the knowledge of one or the other of the States, and that they, in
spite of the knowledge that every one made such use of the island as
was exclusively reserved for the Spaniards or the Venezuelans, tolerated

AVES ISLAND. 317

such use, then, indeed, might it be argued that they had made aban-
donment of it, since it seems to imply a tacit renunciation of the advan-
tages of ownership. But Mr. Hames never can succeed in vindicating
such a position, nor yet that of the Americans and other foreigners in
arrogating to themselves the rights of dominion over the island ; and,
certainly, strange would it be that being derelict, as is supposed, and
being convertible to gainful uses, it never occurred to any nation, not
even to the United States, to which its acquisition would have been so
advantageous, according to Shelton, to take possession of it and reduce
it to its jurisdiction. It is well known that prescription rests on good
faith, lawful titles, continuous possession for length of time; and that,
as there is no one qualified to determine its duration among States,
unless it be by mutual consent, many public writers do not admit it to
be an instrument for either the acquisition or the loss of rights, holding
that universal law does not sanction it, nor positive law introduce it;
that, indeed, the powers frequently invoke it, and provide against its
effects by protests to secure their rights, which presupposes in them the
obligation of breaking their silence when that which they have no
intention of abandoning is usurped by any one; that their language,
on this head, has been various and contradictory, and that as no treaty
or no usage has determined the time required by prescription, nothing
could be gained by admitting it in mere theory.

“Still, we must confess, that it is often difficult to apply usucaption
and prescription among nations when these rights rest upon a pre-
sumption derived from a diuturnity of silence. Every one knows that
it is generally very dangerous for a weak State to put forth the merest
glimmer of pretension to the possessions of a powerful monarch. It
is, therefore, no easy thing to base a lawful presumption of abandon-
ment on the circumstance of along silence. Add to this that the head
of a society generally not having it in his power to alienate what be-
longs to the State, his silence cannot work detriment to the nation or
to his successors, even though it were held sufficient to warrant a
presumption of abandonment on his part. For, in such case, the
question would be whether the nation have forgotten to supply the
silence of its chief, or whether it has participated in it by its tacit
approbation.’’ (Vattel, Law of Nations.)

Both regret and astonishment has Mr. Hames experienced that the
Secretary of Foreign Relations should have said ‘‘the Americans
could never complain of their expulsion, unless they could show that
_it was lawful for them to enter on the island and export from it the
guano which it contains.’’

What! Does Mr. Hames forget that no one can justly deem himself
the owner of a thing of which he has possessed himself by virtue of a
title which, by its nature, cannot convey the right of property, nor
yet of a thing which he has wrested into his power without any title
at all? The observation was most natural when speaking of a claim
which is especially based on the circumstances of the Americans having
landed on the island, of their occupation of it, and their working upon
it—a thing that, it is assumed, any one had the right to do, and
which for many years had been done upon convenient occasions before
and since the existence of Venezuela, without the infringement of any

318 AVES ISLAND.

law and the violation of any jurisdiction—a legitimate pursuit, the

continuance of which it is supposed was disturbed and broken up by

the forces of Venezuela! It is necessary, therefore, to ascertain the

reasons which they had to imagine that Aves Island had been aban-

doned by its owners, and that, being res nullius, it was open to first

occupation. This inquiry ought to have suggested itself to them be-

fore their visit and settlement on the island, because by such only

could they have gathered the conviction that they were about to enter

upon a lawful pursuit. This, notwithstanding it does not appear from

the documents produced by the legation that they proceeded with that

usual prudence which would have controlled any in the like circum-

stances. What does appear from their concerted declarations is that

various American vessels went sailing over the waters of the Gulf of
Mexico, and to other parts, in search of guano islands; that one of

them found Aves Island; and that subsequently, without further con-

cern, they proceeded to work it for their own benefit. Their occupa- .
tion of it was not a peaceful one; they went to tempt fortune, with the

hope, no doubt, that their occupation being clandestine, would not be

discovered, led on, as they were, by the desire of easy and inexpensive

gain. But unfortunately for them the event was contrary to their

anticipations. The government was informed of their acts there, and

in other parts, and it took measures to put a stop to the injury.

Neither the possession nor the property of a certain thing can be found,

in its entireness, in several individuals; so that, in case that Aves

Island belonged to any one, the Americans, who laid hands upon it, |
could not have acquired a right to it; and then, even if they were ope-
rating in good faith, which is denied, no injury was inflicted upon
them in the act of excluding them from the enjoyment of such prop-
erty. Non facit injuriam qui jure suo utitur. It was the right of the
owner not to allow others to make use of productions inherent to his
property. ‘‘Itis certain that, according to admitted principles, pos-
session is exclusive. In the same manner that I cannot occupy the
spot on which you are, and that you may not sit down on the chair
which I fill; even so two persons cannot entirely possess any object
at the same time. One possession necessarily excludes another pos-
session bearing the same nature and resting on the same pretensions.
If you take possession of my stead, I cease to possess it ; if I continue
possessing it, you cannot possess. But what is impossible is, that two
coequal possessions, both of the same nature, should concur in one and
the same act; the one necessarily rejects the other.’’ (Troplong, De
la Prescription.)

‘‘ As it is impossible that when two individuals contend for the
property of one and the same thing, each one of them can have an
exclusive right to that property; so neither can it happen that if two
individuals who contend for the possession of one and the same thing,
each one of them, singly, should have a right to that possession.
Hence there being but one only that can be the true owner, there is
only one real possessor; whence it follows that if he who possesses it
is discriminate from the owner, his possession cannot be anything but
an usurpation.’’ (Merlin, Répertoire de Droit.)

Although Mr. Hames does not admit that the burden of proof lies

AVES ISLAND. 319

upon him, he has withal always alleged, probably to justify the con-
duct of the Americans, that Aves Island, though it may have been
discovered in remote times, was never taken into the possession nor
brought under the jurisdiction of any power; that it was a thing dere-
lict, and that, therefore, the discoverers of the guano on that island
had a right to appropriate it to themselves, without detriment to any
one. But one of two things, either this proposition ought not to have
been laid down, or, laid down, it ought to have been backed by the
necessary proof; because the onus proband: was either incumbent upon
Venezuela, as has been pretended, and, in that case, the Americans
were not bound to open their lips even in their own behalf, or the bur-
den lay on the Americans, and, in this view, little would it have
availed them to allege the exception. It is an axiom of jurisprudence
that he who avails himself of an exception passes from the attitude of
a defendant to that of a plaintiff, and assumes all the obligations of
the latter. Certainly it would be very just to invade the property of
another man, and then say to the owner, ‘‘this is mine, if you do not
prove to me that it is yours!”’ -

Mr. Hames insists that Venezuela is the aggressor, and that the
claimants are the victims. This no doubt grows out of the fact, that
he takes for granted the very question in debate. The question —
whether the island is, or is not, a portion of the public domain ;
whether it belongs to the country or to the Americans, and, in either
case, he avers the contrary. (?) He argues con., and the republic
maintains the pro. She maintains that the real aggressors were the
explorers, the invaders, and usurpers of another one’s property. She
argues that they were the violators of the principles of the law of
nations, and of the laws above adduced; that they were those who, in
an armed attitude, without authority from any sovereign, in the pros-
ecution of a voyage of discovery to guano islands, introduced them-
selves in Aves, Hermanos, Testigos, Munjes, and other groups of Ven-
ezuelan islands; that they were those who held no consideration in
respect; those who failed to take the most obvious precautions in the
act of proceeding in a hazardous undertaking; those who cloaked their
operations in darkness; those who skulked from the most visible parts
to go to others that were less so; those who had not the hardihood to
defend themselves, even by the allegation of the merest right; those
who confessed their wrong; those who resorted to beseechings, so that
they might be allowed to take in more guano; those who left their
own to enter the country of another people; those who were found
armed at all points; those who had gathered together a large number
of laborers; those who, in the act of entering a foreign territory, com-
mitted an act of violence; those who, in vindication of their conduct,
have not alleged a single, well established reason; those who readily
yielded to the merest intimation to them to depart; those who sponta-
neously admitted the absence of all title on their part, and the exist-
ence of Venezuela’s dominion; those who forewent the sacred right of
lawful defense to resist the supposed interruption of their pursuit;
those who committed other depredations, if possible; those, finally,
who, as the sum of these observations will show, have stood forth in
the light, and with all the characteristics, of piracy.

‘

320 AVES ISLAND.

It is not conceivable that the republic should be styled the aggressor
in this case, even had she, in order to drive them away, really applied
force, a course which, on one side, the proceedings of those men would
have amply warranted, whilst it would, on the other, have been justi-
fied by the rights, and even the duty, of the republic. To pretend
that individuals armed for war, could claim the right to approach
places not open to commerce, to land there with their armaments, to
import therein various articles, to settle on them to make use of a sub-
stance which is an accretion of the territory, to carry off, in reality,
several cargoes of that substance, and that Venezuela, the owner of
those places, should have been called upon for a public fore-announce-
ment of her title and right, before she could complain and claim back;
to pretend, lastly, that she was called on to give notice thereof to them,
and her representative to their government, informing them that she
was about to organize and dispatch an armed force there, is to attempt
to establish, between the Americans and the republic, a difference to’
_ which no State, jealous of its own dignity, can never consent; for all
men are reciprocally held to the observance of consideration, respect,
and duty among themselves, and he who is the first to fail in such
observance, concludes himself from all right of complaint if they are
not maintained in his regard.

In a passage of the note, to which this is in answer, it is said that
Venezuela sent out an expedition to look out for the Americans, find
them, drive them from the island, and discharge their vesséls, at the
cannon’s mouth, and despoil them of their houses, ‘‘ with depredation ©
on their property.’? Mr. Hames has not been satisfied with visiting
military agents of the country with most serious imputations of vio-
lence and fraud, but he proceeds, in a note to the government of Vene-
zuela, to say to it that it has ordered ‘‘robbery.’? The action of the
United States which, in the 1849, resulted in the expulsion of Minis-
ter Pengrin, for indulgence in language no way respectful to American
functionaries, though not within the excess to which Mr. Hames has
allowed himself to go, holds out a salutary example, and one worthy
of imitation as the best corrective for outrages which a diplomatic
agent may take the liberty to commit, keeping sacred the bounds of
moderation and respect, and defining in the most efficacious way the
path which he ought to pursue in the prosecution of his charge. It
is to be hoped that the Cabinet of Washington will turn its attention
to the manner in which Mr. Eames treats the government of the re-
public to which he is accredited, and will compel him to make repara-
tion by a recall of the offensive language, considering that Venezuela,
astonished, and patient beyond the requirements of her own self-respect,
refrained from acting for herself, as was done in Washington in the
case adduced, merely to avoid complicating the question in debate with
a novel incident—a sacrifice offered to her desire for the unalterable
maintenance of the friendly relations between: both countries; other-
wise there could be no other answer to such a charge.

Passing by this insult, the State is not accountable to any one for
its acts, provided they do not affect the rights of others. Hence it is
not called on to go into an investigation of the orders and instructions
of Colonel Dias, and the reasons which may have justified his dispatch

AVES ISLAND. 324

to Aves Island. If the execution of his duties have resulted in unjus-
tifiable damages to any one, let them be asserted; but beyond this, let
no one claim liber ty.

On the other hand, it can be no cause for astonishment that the Amer-
ieans should be asked for proofs of the lawfulness of their conduct.
They are the plaintiffs; they accuse Venezuela of having disturbed
their enjoyment of a right ; they say that they were unlawfully ex-
pelled ; they look for a eparation for their pretended grievances ; they
maintain that Aves Island belonged to no one; they allege that things
derelict belong to the first occupant ; they assert that the island was
never claimed by any power ; they affirm that it had never been
reduced into the possession, nor submitted to the jurisdiction, of any
one. They speak, besides, of the large outlays which they made, and
of the great losses incurred ; of the consequences, immediate and
remote, of their ejectment ; and, in virtue of all these, they claim,
from the republic, an indemnification not yet definitely set forth. Is
it too much, therefore, to ask them to make good all they advance?
We confess i ignorance ‘of any principle of law which puts upon the de-
fendant the burden of proof. On this head, see what Merlin says
of the word ‘‘ proof:”’

‘Tn this matter, jurisprudence admits three great principles. The
first is, that he who lays down a fact is held to the proof, because facts
are not to be presumed, and consequently the denial of the adverse
party is sufficient in itself to warrant the idea of their non-existence ;
whence it follows that the denial requires no proof. The second is,
that the plaintiff must prove the fact on which he grounds his com-
plaint, and that, in like manner, the defendant is held to prove the
fact on which he rests his defense. The third principle is, that he who
lawfully possesses a thing is not bound to prove that it belongs to him,
but that he who disputes the right to the property is held to make
proof of the fact, or of the titles on which he grounds his claim.”’

By all three of these principles, the claimants are compelled to meet
the obligation incumbent upon them, and, in consonance with uni-
versal jurisprudence, to prove the facts which they advance, to prove
the facts on which they rest their demand, to prove the facts on which
they stand to contest Venezuela’s right to the proprietorship, or to the
usufruct of the island.

Mr. Hames appears to think that Venezuela cannot allege the agree-
ment or document signed by Lang and Gibbs ‘‘ because its enlightened
government will assuredly never “recognize that, acting through the
agency of high functionaries, the commanders of its public forces, it
entered into agreements with usurpers and with violators of law, en-
gaged in depredations upon the property of Venezuela, and caught
flagrante delicto, in the violation of its law and its territorial sover-

elenty.”’

, On this point Mr. Hames mistakes. The convention, or ‘‘agree-
ment,’’ since Mr. Hames has chosen to give it that name in his note of
the 20th of December, is an act which cannot be imputed to the gov-
ernment, because Colonel Dias’s commission had a special character,
and his orders prevented him from granting such a permit. Thus he

Ex. Doc. 10 21

$22 AVES ISLAND.

acted without any authority of any kind, and therefore he could not
bind the government by his act. [!] Besides this, from the moment
that the government became informed of what had been done, it un-
conditionally disapproved it, and stood free from all co-responsibility
with its delegate, that had arrogated to himself functions which did
not belong to him. Still, this notwithstanding, his error grew out of
an excess of forbearance, and even of kindness, for the Americans,
not to mention the stress in which he found himself from shortness of
provisions for his garrison, with which the Americans offered to supply
him. Guilty though they were, and deserving of an entirely different
proceeding, seeing that it was not adopted, they ought to have been,
as indeed they were, grateful at the time, to him who treated them
with such consideration. In spite of the evident nullity of the permit
to which allusion has been made, there can be no obstacle thrown up
against the incontestable validity of the voluntary acknowledgment
of Lang and Gibbs, made on the spot, that the island belonged, not to
them, but to Venezuela, This voluntary acknowledgment they car-
ried out by confirming in writing what they had stated in words, and
made it every way ample to give a correct insight into their notion as
to the proprietorship of the island. Let the paper permit be called
“‘aoreement,’’ or whatsoever you please, it will still bear upon its face
the clear and unequivocal proposition that Aves Island belongs to
Venezuela. .

They were, certainly, characterized as mere copies, those rejected
depositions which Mr. Hames produced with his note of the 20th of
December, 1856, and this because it is the proper name for transcripts
of documents the authenticity of which is vouched for by no signature
at the bottom, whether in the Department of State or in the American
legation in Caraccas. Nothing of the kind is given to understand in
even the official note which describes them.

When the question of proofs, as admitted in Venezuela, is spoken
of, and when she is called on for no less a task than that of assuming
a great burden upon herself, it is thought proper that they should at
least accord with the provisions of her laws. According to those laws,
<¢documents are public and private: public documents are instruments
acknowledged before a register, or any other competent public officer,
the acts of courts, duly authenticated, and all acts of public functiona-
ries, and transcripts, copies, or certificates of said instruments of writ-
ing and said acts, legalized in the form prescribed by law. .

‘« Extrajudicial statements of witnesses, or anticipatory certificates
or vouchers shall not be admitted, unless those who have signed or
certified them shall make appearance and publicly and judicially con-
firm the truth of their contents, in which case it shall be the right of
the parties to cross-question those who have signed the documents.
From this are excepted those declarations and proofs made by virtue
of citation on the adverse party, on account of the impending departure
of a witness, or of such persons as are called on to depose, or on account
of malicious delay on the part of the plaintiff to come to trial, to be
proved in the manner provided for by this code.’’ (Code of Practice,
4th law, tit. 1, art. 13 and 16.)

It will be seen from the above, that the remark that the declarations

AVES ISLAND. 323

had not been brought forward with those requirements, could have
no other object than that of breaking the concluding force, which is
attributed to them.

Mr. Eames denies the objection, namely, that the deponents have an
interest in the claim, and that they are, zpso facto, incompetent; whilst
he avers that, as salaried agents of the claimants, the courts of all
countries hold them to be proper witnesses.

The objection still stands, even were the quotation above perfectly
certain. Let it be borne in mind that the declarations were brought
forward to invalidate the document signed for Colonel Dias, because,
as it is said, it was procured by fraud and violence. If fraud and vio-
lence there were, they could have been exercised upon those persons
only found on the island, namely, Lang, Gibbs; and the laborers. In
fact, Lang and Gibbs were the individuals who signed the permit; and
_ yet the attempt is made, through their verbal statements and those of

other individuals, to defeat what they declared in writing. In the
hypothesis that the violence and fraud were committed in respect to
Lang, Gibbs, and their companions, and not to their principals, it is
clear that the latter, who were in the United States, had nothing to
do with it, and that the former are solely and exclusively the parties
interested, even if it be only through their responsibility to their-con-
stituents. Ifa fact were spoken of, in which the claimants might
have intervened, in the presence of their salaried agents, their testi-
mony might be admitted in behalf of the constituents, although even
then not without some difficulty ; because the relations which grow
out of subordination and dependence are too closely binding entirely
to exclude the presumption of partiality from such a declaration. But
this is not the case. Lang and Gibbs have deposed to acts in which
they themselves were the actors, and to pretend to turn off the force of
those depositions, because the selfsame persons afterwards contradicted
them, is to put them in the attitude of parties and witnesses in the
case.

The other witnesses are entirely blemished by this fact, namely,
that being ignorant of the Spanish, a language in which Colonel Dias
was compelled to speak and write, as he was equally ignorant of the
English language, it was not in their power to understand a single
word, except toagh the medium of an interpreter; a task which
Lang performed, and consequently their declarations as to force, threats,
&c., come into the category of recollections of Lang’s conversations,
or, what amounts to the same thing, they are nothing but the multi-
plied testimonies of Lang himself.

Before dismissing this point, it may not be out of place to mention
a very significant circumstance. Mr. Eames, for reasons not known,
suppressed Gibbs’s deposition, as he did not transmit it with the other
declarations in December last. The attention of the secretary of rela-

tions having been drawn to this, he observed, that of the two who
signed the document, one had not deposed, and that the other assigned,
as a motive for his conduct, things different from those stated by the
other witnesses. At the time of his reply, Mr. Eames transmitted
the declaration which had been left out without explaining the reason
why it had been previously withheld; and then it was sent, not in

2, a AVES ISLAND.

manuscript, but printed on a paper, pieces of which had been cut out.
The meaning of this it has been impossible to ascertain; and as the
paper, in view of the caption at the top, was to contain nothing but
some questions put to Gibbs, and his answers to them, and in view of
the silence maintained on this point, it is lawful to infer that, in the
mutilated portions, there was something that damaged the claim,
whilst the object was to conceal it from the government.

Mr. Eames, in consequence of another observation of the Venezuelan
note, in the relation to the absence of resistance and of protest by the
parties, as also the failure immediately to claim against the effects of
the pretended violence, not a claim for their property, as he understood
it, proceeds to affirm that the parties did all of this.

The contrary fully appears from the frequently quoted as well as
respectable testimony of the three officers of the Venezuelan navy,
Colonel Dias, Lieutenant Pereira, and Commander Cotarro. Conyic-
tion may be enforced by the following reflection. Had the Americans °
believed themselves secure in their rights, they would not have failed
to go to work and resist the landing of the Venezuelan force, exclu-
ding it from the occupation of their property, repelling it by the force
of arms, or, at least, making some show of the reluctance with which
they yielded to violence ; stating to Colonel Dias himself the necessity,
in which they were placed, of submitting to him, and then, stopping
their work, depart from the island. What they did, instead of this,
we have already shown, and repetition is unnecessary.

But as they did not put up a protest on the act itself, which would
have been the proper time, they might have done so when they returned
to their own country. In so doing they could have had no other ob-
ject in view than the preparation of their claim, or that of their prin-
cipals, against Venezuela; if it be true that they were conscious that
their act had been one of a lawful character, not one of mere usurpa-
tion, and the removing of all doubt from their intention not to submit
to the consequences of their spoliation, making use of such document
when the occasion should offer for the discussion of this claim. If
they did not do so then, for what time did they reserve it? And if
they did so, why has it not been produced ?

Mr. Eames took care to notice the protest of the individuals who
went over to Aves Island in January, 1855, to take in cargoes of
guano, which they were not allowed to do, as they found the island
guarded by a Venezuelan force. Now, from the circumstance that
other papers of this nature were not sent, we may well infer that that
is the only one in existence. It also labors, in every respect, under
the defects which have been pointed out because either its transmis-
sion is useless or it drives Mr. Hames into a circle of contradictions.
It is for this reason that he has been asked clearly to State in whose
behalf the claim of indemnification has been preferred, an information
which cannot with justice be denied to the State which it is attempted
to burden with the consequences of an unjustifiable responsibility.

All the witnesses are discredited, particularly Lang and Gibbs, for
the good and incontestable ground specified by Mr. Hames himself
when, in order to enforce the value of their testimony, he says ‘‘that
they were the leading actors in the occurrences that took place.” As

-

AVES ISLAND. 325

such, and the act by which they signed the document which speaks
against them, bearing all the characteristics of a voluntary one, that
they should now allege that it is of no value, because it was the result
of force and fraud, with the hope that it will be believed on the
streneth of their words, is a pretension which cannot be admitted,
unless we would, at the same time, authorize man to sport with the
most sacred acts and laugh at his fellow beings. In no case can
a document be invalidated, under a plea of fraud and violence, by the
mere say of him who signed it, and who, in spite of that say, is met
by the best grounded presumptions.

The reasons assigned by those individuals for their conduct are not
the same, neither do they accord with those which are assigned for it
by what is termed the eye-and-ear-witnesses of the act, who were par-
ticipants in it by the fact of consulting together in that act. Let us,
however, cursorily examine their declarations, and ascertain whether
it be or not possible to find in them some likelihood of error:

“Joshua EF. Spofford, master of the bark Carlo Mauran, loading
with guano on Aves Island, for account of Tappan and Philo 8. Shel-
ton, of Boston, says that a Venezuelan armed schooner arrived on the
13th of December, 1854, landed an armed force, and took possession
of the island, lowering the American flag and hoisting in its place the
banner of Venezuela, threatening, at the same time, every American
there with expulsion from the island. Finally Colonel Dias drew up
document in Spanish, which he said was a permit for them to go on
loading the guano provided they put their armament under his au-
thority; that he was present when the tenor of the document was ex-
plained to Captain Gibbs, said Gibbs not understanding the Spanish
language; that, according to the way in which it was explained to
him, it was merely that Gibbs and Lang had to assist the garrison
left on the island with supplies of water and provisions, and he was
assured, in the most positive manner, that the document contained
nothing that went to establish the existence of a title to the island in
behalf of Venezuela; that he positively knows this fact, because Cap-
tain Gibbs asked him his opinion about it. Besides this, he certified
that Dias insisted, if they did not sign the document, that they should
have to leave the island forthwith; that Captain Gibbs, under these
circumstances, was compelled to sign the document, with the hope
that by doing so they would be allowed to load the vessels that were
there, as well as those which they were expecting; that Gibbs then
told the witness that if the document contained anything different
from what had been explained to him, he did not suppose that a paper
signed under such circumstances could be considered to be one of bind-
ing force.’’ This declaration is dated ‘‘ Boston, June 20, 1855,’’ and
acknowledged before Justice of the Peace Charles Horner. |

This witness makes no mention of the employment of force, but he
‘does of threat ; nor does he speak of any reluctance on the part of the
signers, or of any indications of resistance or opposition. He positively
knew that the paper contained no admission of the title of Venezuela,
because he was present when it was explained to Gibbs, and because
he consulted him as to whatheshould do. He does not refer to Lang,
and he was the only one who was consulted.

326 AVES ISLAND.

James Wheeler, in his first declaration made in Boston on the 8th
of June, 1855, acknowledged by him before John Clark, justice of the
peace, does not speak of Colonel Dias, nor of the document, nor of the
departure from the island. He merely relates the breach of trust
which he committed against Sampson, Tappan, and Philo 8. Shelton,
when employed by them in taking guano from a certain island in the
Gulf of Mexico, he was informed that Captain Gibbs, by order of his
constituents, had visited Aves Island and discovered a large deposit of
guano; he returned to Boston, gave up the service of that company,
and, revealing the secret of the discovery to Lang & Delano, pre-
vailed upon them to send him with the brig Comery to procure guano
there, and did procure it, arriving at the island before Gibbs’s vessel.

In his second declaration of the 15th of June, 1855, acknowledged
before Geo. B. Upton, J. P., he states that while he was on Aves
Island the American flag was kept continually flying, and that the
man-of-war Devastation having visited the island, he informed Cap--
tain D’Orsey that they held the island for the government of the
United States, and that they hoped that he would protect them as citi-
zens of that republic. He adds that the American flag was respected,
and that D’Orsey informed him that they had the right to keep the
island in the name of the United States.

The word of a witness who, from his own confession, stands forth
as a betrayer, deserves to be held for little or naught.

The third deponent is George M. George, first mate of the brig M.

H. Comery, and afterwards foreman for Lang & Delano, who ac- —

knowledged his declaration on the Ist of June, 1855, before Daniel
Sharp, Jr., a notary public of the city of Boston. After many irrele-
vant details, he gives an account of Dias’s arrival and landing; his
taking possession of the island, and the drawing up of the document.
He goes on setting forth that the other foremen were required to sign
it under threat of expulsion, and that Lang and Gibbs signed it, the
former in the name of Lang & Delano, and the latter in the name of
P.§. Shelton, in bodily fear, and to prevent outrage and bloodshed !
That the document having been signed, the Venezuela. armed schooner
left the island, having detailed a certain number of soldiers for shore
service. That the same vessel returned about three weeks afterwards,
and that the commander ordered all his people to leave the island
within twenty-four hours, but that the next day being Sabbath day,
they knocked off work. That on Monday they were surprised to find
a guard with crossed bayonets at their cabin doors, in the guano pits,
and on the wharf. That orders were given to the laborers to proceed
to the pits at the usual hour, and to pass on to load the boats; but
that the guard then ordered them to desist from all work, and that, as
one of the laborers insisted on working, a Venezuelan struck him with
a bayonet. That orders were then given to the foremen to imme-
diately leave the island, with all the laborers under their charge,
within a period of twenty-four hours, which was done by him, as he
then was head foreman in the absence of said Lang, leaving ashore a
lagge quantity of water, provisions, houses, the wharf, [the gangways? |
and the boats, because time was not allowed them to carry them off.
This witness states that the document—the contents of which he does

AVES ISLAND. 327

not describe—was signed through bodily fear, and to prevent outrage
and bloodshed, without adducing any reason that could produce such
fear, nor why, by signing it, they were preventing outrage and blood-
shed. Although the foreman of the works, he was not even consulted
by Lang and Gibbs, he being, like the former of these, an agent of
Lang & Delano. Then he had no reason to inquire into what was
occurring. His statement is inaccurate when he swears that the vessel
in which Colonel Dias sailed to Aves Island returned thither three
weeks afterwards, because Colonel Dias had come on board of the
General Falcon, but the latter was the schooner Trece de Diciembre.

The next declaration is that of Charles H. Lang, foreman to Lang &
Delano, and one of those who subscribed the document. The declara-
tion is acknowledged in Boston, June 21, 1855, before Samuel Brackett,
J.P. He, too, understood Spanish, having sailed for a number of
years in the Pacific ocean, along the coasts of Peru; so that, accord-
ing to the statement of the officers of Venezuela, they would readily
have taken him to be a Spaniard, had he not declared that he was an
American. fo well did he understand the Spanish language, that he
went on correcting a few slight mistakes that had crept into the docu-
ment. Besides, neither has he denied this, nor have the witnesses
referred to any one but Gibbs, when they speak of not understanding
the Spanish language and the explanations which were made of the
contents of the paper at the time when it was signed. This is so
much the more evident from the fact, that in order to understand
Colonel Dias, some interpreter was required, as he did not know the
English, or they the Spanish, language.

“‘He deposes to the arrival of Dias, who hoisted the Venezuelan flag,
in which particular he is in contradiction with Gibbs; and that Dias
immediately insisted that they should depart from the island, and,
seeing that they were not disposed to go off with such readiness, he
made some show of his forces, such as putting his soldiers through the
exercise, firing their guns, &c. That, finally, said Domingo Dias
drew up a document in Spanish, copy of which was annexed, ordering
the foremen to sign it or immediately to leave the island. That find-
ing themselves unable to leave then, because they had no vessel that
could carry him and some thirty laborers, citizens of the United States,
he saw himself compelled to sign the document, not thinking that, the
circumstances considered, it could be of any value except so far as it
put them beyond the reach of outrage for the time. That a few days
after he found an opportunity to proceed to the United States, and he
did so to give an account of the occurrences to those who had employed
him, Messrs. Lang & Delano, of the city of Boston.”

_ He is the only deponent who expresses anything like unwillingness
at the time to depart from the island, or who ‘asserts that Dias made
ostentation of his force, as, for instance, putting his soldiers through
_ their maneuvers, &c., a false assertion, because, as has already been
stated, the soldiers had not yet left the vessel for shore. He does not
even hint that he was deceived as to the contents of the document, or
that he was utterly unacquainted with the Spanish language; much
less does he hint that violence was offered to him, or that he was put
in bodily fear. The reason for his conduct was the want of vessels to

328 AVES ISLAND.

take him and his laborers away, and for this reason he felt compelled
to sign the paper, not considering it to be of any value save that, for
the time, it protected them from outrage. The reason is a false one,
because there were at the time three large vessels at anchor, one of
which of eight hundred tons’ burden, the other of five hundred tons,
the former being amply sufficient to carry all the laborers, their appa-
ratus and armament included. Besides this, the want of vessels couid
have had no other effect than that of delaying their departure, not of
forcing them to the signature of the document. .

‘¢William P. Gibbs, master of a vessel, on the 23d of August, 1855,
in the city of Boston, before Charles Herner, J. P., declares to the
same effect as J. F. Safford, and almost in his very words. What is
added by him to the declaration had, with some slight variations,
already been stated in George McGeorge’s deposition.’’

George W. Nickell’s declaration refers neither to Colonel Dias’s
permit nor to the departure of the agents and laborers of the Boston
companies. It merely sets forth the circumstance of his having sailed
from New York on the 15th of January, 1855, for Aves Island, with
the object of loading with a cargo of guano, which he was prevented
from taking in, because he was forbidden doing so by the Venezuelan
garrison of the island, from which he was ordered by the public force
to depart.

This very singular protest does not mention the ground on which
the protestant stands to urge the responsibility of Venezuela for the
damages which he suffered on that occasion. Whose was Aves Island? —
Was it Lang & Delano’s, whose agents arrived there first? Was it
Shelton & Co.’s, whose representatives reached there at a later period?
Was it George W. Nickell’s, who went to the island in January, 1855?
In order to maintain an attitude of consistency the legation has been
compelled to sustain the rights of Lang & Delano alone, without
attending to the fact, on the score of acquisition, that others, the agents
of Shelton & Co., had seen it before, but had not taken possession of
it. If in January, 1855, the island continued to be res nullius, the
whole structure of Mr. Eames’ claim falls to the ground, resting, as it
does, on the principle that ‘‘the discoverers of guano in a derelict,
uninhabited, and uninhabitable island, which was not included in the
jurisdiction nor reduced into the possession of any power, had a right
to land thereon and make use of it.’ This Mr. Nickell did not dis-
cover the guano; he neither took nor kept possession of it; he had no
intention of retaining the island until he had exhausted that substance;
he was not ordered to quit the island; he incurred no expenses in the
undertaking ; he did not present himself, for the first time, to the island
until it was actually occupied by the public force of Venezuela. Lastly,
he does not come within any of the cases applicable to the other claim-
ants. The observations suggested by the discovery of this document
among the others transmitted by Mr. Hames seem not to have deserved
an answer, a silence which argues that he discovered no way of issue
out of the difficulty.

The tardy and mutilated deposition of N. C. Gibbs was made on the
- 12th of April, 1856, before a notary of the city of New York, sixteen
months after the occurrence of the facts which it relates. Although

AVES ISLAND. _ 329

it ought not to engage the attention of the government, so long as no
explanation is given of the reason why it was not added to the others,
and how it happens to be mutilated by the clippings made in the paper,
still it contains several important points, which strengthen the defense
of Venezuela. For instance: ‘‘Dias landed one gun with its ammu-
nition, and ten soldiers, armed with muskets and other weapons.’’
“*T told him (Dias), in precise and unequivocal language, that I would
not leave the island, nor cease to gather guano, until I should be pre-
vented from doing so by a superior force; that I would resist, and that
he could not effect my expulsion with the force that he had there.”
_“T told Dias that we were in possession, and had been so peaceably for
several months, on a title which was good until some one showed a
better one.’’ ‘‘ Dias stated that he interpreted and translated the paper
to me, word for word.’’ ‘‘Dias boasted that he would take us, vessels
and all, to Venezuela to be judged for our violation of her laws and
robbery of her property.’’ ‘‘I fed the soldiers, and they did not
molest us; I took the officer to my house and found him also, and’ I
employed some of the soldiers in gathering guano, paying them in
clothing and provisions.’’ ‘‘I am bound to say that, in spite of Dias’s
threats, and the evident demonstration of his intention to carry them
out, I did not sign the paper from any fear of personal consequences
if I persisted to decline, or from any apprehension that, with the force
which he then had on the island, he could either subdue or expel our
people. Still I had reason to fear that he might make the attempt,
and I wished to avoid extremities, which might have resulted in effu-
sion of blood. Although I had no doubt that we could have taken him,
his soldiers, and his armed schooner, I wished to avoid such a necessity.’’
‘“My employers also sent two cannons, (both six-pounders,) two
dozen muskets, twenty-five pistols of the larger size, several revolvers,
and twenty-five cutlasses, twenty-five boarding pikes, and a full supply
of ammunition; also, a flagstaff, and a stand of American colors, to be
exhibited on the island. I took in the brig John R. Dow in the late
mentioned voyage some twenty-seven or twenty-eight men, mechanics
and laborers, besides the crew, which consisted of fifteen hands. After-
wards, from time to time, said employers sent other hands, so that, on
an average, besides the crews of the vessels, we generally had there no
less than thirty-five men, and, with the crews, they numbered sixty
men in the party which was under my charge, and which I employed
on the island from the day that we undertook the work until the day
when we were dispossessed of it.’’
““TIn pursuance of instructions of Shelton and at his cost, as his agent

and for his behalf, I sailed ia said brig John R. Dow to cruise along .

the Caribbean sea to discover guano islands. Leaving Baltimore in
the month of March, 1854, I spent some time-in such discovery among
the desert reefs or rocky islands of said sea, several of which I visited ;
‘and whilst I was thus engaged, about the beginning of April, 1854,
(the 6th of the month, I believe,) I found, in said sea, Aves Island,
afterwards named by Shelton ‘Shelton’s Island,’ which lies some-
thing like 15° 40’ latitude north and 63° 38/ longitude west of Green-
wich.”’ ‘After due exploration of the isiand and of its guano, speci-
mens of which I gathered, I sailed thence on the 7th or 8th of Apri

330 AVES ISLAND.

in said vessel and I visited other groups of said sea, (the Caribbean,)
and then proceeded as fast as I could to Arenas and other guano islands
in the Gulf of Mexico, where Mr. Shelton’s vessels and men were then
principally engaged in the guano business.’’ ‘‘ After sailing from
Boston in the year 1854, in the month of June, I arrived at Shelton’s
Island in the brig John R. Dow about the beginning or middle of
July, 1854, (the 15th of the month, I believe.) On the same day
arrived the aforementioned Captain James Wheeler in the brig Ma-
hala H. Comery, dispatched by Messrs. Lang & Delano, merchants,
of Boston, as he stated to me, in consequence of information which had
been communicated to them of the existence of guano there, as I have
already mentioned. Our vessels were in sight of each other when we
discovered the island, and there was not one hour’s difference in the
time of our arival. The next day I went ashore in company with
Captain Wheeler; and although I did not conceive that, under the
circumstances, either he or Lang & Delano had any lawful right, or, °
indeed, an equitable one to any portion of the island or to its guano,
and I thought that their claim to appropriate it to themselves was a
wrong done to Shelton; still, with a view of avoiding difficulties and
for the sake of peace, and because there was enough of guano for all,
T agreed with him to divide the island and the guano, and we accord-
ingly marked out our respective portions and concluded not to interfere
with each other until I had communicated with my principals, leaving
it to the parties interested to settle the question in the United States as
they should think best.
Let it not be forgotten that Gibbs’s is the declaration which the le-
gation has put forth with most confidence and commendation. The
legation says, ‘‘ that the minuteness of his details, his frank admis-
sions, and his moderate tone, though firm, everything stamps it with
- the seal of a faithworthy document; whilst the clearness of his narra-
tive distinctly proves that it is the testimony of an Intelligent witness. ’’
This being laid down, such a testimony gives most force to the argu-
ment adduced against the resort’to force and the commission of fraud.
Gibbs declares that ‘‘he told Dias, in plain and unequivocal language,
that he would neither leave the island nor stop taking in guano, unless
prevented by a superior force; that he would resist, and that the Col-
onel could not effect his expulsion with the force which he then had on
the island; that he had no doubt that they could have captured Dias,
his soldiers, and his schooner, and, to make good his declaration, he
enumerates the supply and quality of the arms with which his own
single party was provided, &., &c.; that he did not sign the paper
through any fear of personal consequences had he persisted in a refusal
to do so, or that he apprehended that, with the force under Dias’s orders
on the island, his people could be subdued or expelled.’’ ‘There was,
therefore, no reason for Gibbs entertaining any fear, present or remote ;
but he was, on the contrary, satisfied that Dias’s force was powerless,
as opposed to his, and hence the boastful language of his explanation.
After these asseverations, he goes on to show that he acted entirely in
opposition to what would have been expected at his hands, considering
the posture of things; and this, too, according to the statement of
the self-same Gibbs. He goes on to say that he had reason to believe

~ AVES ISLAND, 331

that Dias would attempt to eject him, and that he wished to avoid the
effusion of blood. The decision and the desire are so incompatible,
that it is not perceived how they could have emanated from one and
the same individual at the same time. If they were so resolved on
resistance, and so sure of the issue of the conflict, how comes it that
he refrained in order to avoid coming to extremities? Did he not care
about them when he came to the conclusion not to yield? Will the
man who had no intention of yielding, except to superior force, ex-
plain how violence could have been inflicted upon him by a force which
he despised, because he deemed it insufficient to compel his departure,
and because he entertained no doubt that he could capture the Colonel,
his men, and his schooner? Neither could the second schooner have
been adequate to subdue and eject his people, because the detachment
of fifteen men which she had brought put things in the same condition
in which they stood during Colonel Dias’s visit, whilst, with the ar-
rival of other vessels, the Americans had bettered their condition.

Mr. Hames insists that the two Americans who signed the document
acted under the influence of violence and fraud, being completely in
error as to its contents, from the fact of their not understanding the
Spanish language in which it was couched.

it will not be irrelevant here to transcribe the permit, which plays
such a part in this matter. Copied literally, it states as follows:

*‘1, Domingo Dias, a captain of vessel, second chief of the Vene-
zuelan squadron, and commissioner of the supreme government of the
republic, to watch over the uninhabited islands belonging to it in the
Caribbean sea, have agreed, provided that my government shall ap-
prove it, that Messrs. Charles H. Lang, agent of the firm of ‘ Lang &
Delano,’ of Boston, and Nathan P. Gibbs, agent of the company of
Sampson & Tappan and P. 8. Shelton, also of Boston, whom I have
found taking guano out of this island, shall—

“Hirst: Continue to take in cargo in those vessels which are now
loading.

‘“‘Secondly: That they shall continue to take in guano until the
arrival of the company, with which the government has made a con-
tract, or until the approbation or disapprobation of the supreme goy-
ernment shall reach the island. .

“Thirdly: And we, Charles H. Lang and Nathan P. Gibbs, bind
ourselves to afford all the assistance that may be required by the gar-
rison of this island.

“‘Wourthly: That, to this effect, we put our pieces of artillery and
our armament at the disposition and under the flag of Venezuela, to
which the island belongs; and

“Wifthly: I, Domingo Dias, second chief of the squadron, order
the commanders of the war vessels cruising in the Antilles, to respect
this grant, until the government will have otherwise disposed.

‘‘ Aves Island of the Windward, December 13, 1854.

“‘Signed,
| “NATHAN P. GIBBS.
‘CHARLES H. LANG,
‘“‘ Agent for Lang & Delano, of Boston.
“DOMINGO DIAS.”

\

382 AVES ISLAND.

This document, in the first place, shows a preamble, by which Col-
onel Dias, relying on the commission received from the government
to watch the uninhabited islands in the Caribbean sea, states that, on
condition that his government shall approve it, he grants to Lang and
Gibbs:

First: The privilege of continuing to take in guano on board of the
vessels which they had then loading.

Secondly: That they should do so until the arrival of a company, .
with which the government had contracted, or until the Boe of
said government should be received.

On their part, Lang & Gibbs bound themselves—

First: To extend all the assistance which the garrison of the island
might require.

Secondly: To put their artillery and armament at the orders and
under the flag of Venezuela, to which they acknowledged that the
island belong ed. ,

Finally Colonel Dias directs all commanders of vessels of war cruis-
ing along the Antilles, to respect his grant until the government
should otherwise ordain. And all three of them sign the document in
Aves Island of the Windward, on the 13th of December, 1854, Lang
appending to his name, and in the English language, the words
‘‘agvent for Lang & Delano, of Boston.’’

Now, the signers of the document understood perfectly well, as ap-
pears from the declarations, that it was a document allowing Lang and
Gibbs to continue taking in guano, provided they were to put their —
armament under the authority of Colonel Dias, and imposing upon
them the obligation of assisting}the garrison left on the island with water
and provisions. They add that they were most positively assured that
the document contained nothing by which they assented to the exist-
ence of any title to the island in Venezuela. Thus Safford asseverates ;
thus P. Gibbs, and especially thus, the shrewd N. C. Gibbs; so that
the violence and fraud consisted, according to the declarants, in the
words of the document, which embraces the acknowledgment that the
island belongs to the Venezuelan flag, and in all the rest they agreed,
knowingly of what they were doing, and with their free consent. So
certain is this, that N. C. Gibbs states that had he truly known the
contents of the paper, he would, at ali hazards, have refused to sign
it; that is, that had he known that “it contained any word admitting
the title of Venezuela.’ He, without any doubt, was ignorant that
‘‘it was a mere copy of his permit, which contained orders that they
should not be molested ; and that they should assist the soldiers, with
their men, guns, and other arms, to keep off intruders; and that he
consented to supply said soldiers with provisions and water ;’’ and he
thought that ‘‘if the paper was such, it could not damage him, and
its effect would be to prevent all new ‘difficulties.’

Hiven setting aside what has been stated in the commencement of the
document and the close of the fourth article, and reducing it to the
mere fact of the permit, it stands against the claimants in full force as
an acknowledgment of the dominion and sovereignty of Venezuela.
They, in the sense of their legation, were exercising a lawful pursuit,
using an article, their own property, and availing themselves of the

- AVES ISLAND. 3338

advantages inherent to an acquisition, which the whole world could not
dispute. What! could they consent that what belonged to them, as
masters, to do by right, should be granted to them as a favor by a tew
intruders? that they should have a short period of time allowed them
for their pursuits, when they had the power to carry it on indefinitely? .
that they should be reduced under the authority of the government of
Venezuela, when they were independent of all? that they should sub-
mit to conditions, although they were soresolute? When, in the range
of the history of mankind, was any master of a thing ever seen thus
to abdicate his rights? But if they did all this; if, more than this,
they carried out, by act of compliance, the obligations which they had
contracted in exchange and return for the permit which they had freely
accepted, acknowledged, and made use of, how dare they maintain
that they considered themselves as exclusive masters of the island and
of its guano? Of the guano, the price of which they had in part to
make good by the provisions, which they actually supplied? Did they
not know that the bare fact of admitting on the island a garrison,
allowed to remain stationed there, occupying, guarding, and governing
it in the name of Venezucla, was on their part an explicit acknowl-
edgment both of their own lawless possession and of the title of the
republic to that island? What can be the meaning of this obligation
to feed the garrison, and feeding it in reality? And this, at what
time? Why, when Colonel Dias, being absent, and having left behind
him ten men ‘‘ who troubled no one,’’ ‘‘whom Gibbs employed as
laborers,’’ and an officer whom ‘‘he entertained in his own cabin,’’
and all of them living in good understanding with the eighty Ameri-
can laborers. All pretext, even the slightest, had ceased to justify the
idea of ascribing their conduct to the effect of fear.- To allow Colonel
Dias and his men to come ashore; to consent that they should occupy,
garrison, and control the island; to receive and obey his orders ; to
accept and sign his permit; to comply with the condition of delivering
up their armament and supplying provisions, under which conditions
the permit was granted; to remain there in harmony and concord with
those appointed as their guard; to feed, and even, indeed, to employ
the soldiers at work, after the pretended threats had passed away, and
they had men, vessels, and arms; all these constitute a series of facts
that speak loudly against the claimants, and the power of which it
were vain to attempt to destroy. This is sufficient to decide the ques-
tion, since the foregoing reflections are suggested by the testimony
itself of the claimants, examined in the light of their own statements.
_ It has already been stated that the object of Venezuela was to prevent
the exportation of her property, which was carried on in her islands ;
and it is evident that in order to attain it, she required the application
of force, since its absence had encouraged foreigners in disregarding her
rights. Stillit wasapplied neither to procure Lang’sor Gibbs’ssignature
. to the permit, nor to enforce their departure from the island of Birds ;
so much so, that in the act of speaking of a permit, and of signing the
document, Colonel Dias, Commander Cotarro, and Lieutenant Pereira
were the only persons ashore. Indeed, it is no matter for wonderment
that force should not have been required to obtain that some men, who
had possessed themselves of an island to which they knew they had no

334 AVES ISLAND.

right, should depart from it as soon as its lawful owner presented him-
self there. If the expedition of Venezuela came with cannons, bayo-
nets, and powder, the Americans had more cannons, more arms of
every kind, more powder, and more men for the defense of what they
call their property. According to Mr. Kames’s note of the 20th of De-
cember, 1856, the agents of the company did not understand Spanish.
One of them, according to Mr. Hames’s note of the 31st of March, 1857,
did understand it, although very imperfectly. The observation as to
the paper ,having been couched and signed in the Spanish language
only, and not, as would have been natural, both in English and in
Spanish, is so much the more strange in view of what Wheaton says:
‘«The original equality of nations authorizes each of them to make use
of its own language in its intercourse with the others; and, to a cer-
tain degree, this right is still maintained in the practice of some
States.’’ Greater and more evident does that right become when we
speak, not of diplomatic correspondence between nations, but of merely

domestic acts. We know no State that has so abdicated its independ- |

ence as to issue its orders, or to reduce its acts to writing in the lan-
guage of all those who are required to respect them. The argument
involves the idea that the Americans constituted a power capable of
entering into relations with Venezuela.

Mr. Hames says that it is a declared act of fraud that the paper
should now be presented as an agreement, when it had been given to

the agents in the character of a permit. But he forgets that it was he

himself who thus characterized that document. In his note of the
20th of December, 1856, and no less than six times, he used the word
agreement to designate it; and because, in imitation of his language,
the government in its answer has so called it, it is therefore brought
under an imputation of fraud. There is no language to qualify such
a mode of proceeding. In the event of force being necessary to secure
the end of the expedition, the amount required would have been dis-
patched. Fraud was neither required nor was it necessary that it
should coexist with force. That which is required having been ob-

tained by means of one of these two things, the use of the other is
superseded, because either is sufficient for the object in view. The
witnesses, it is true, have declared under oath that there were violence
and fraud; but it is equally true that the officers of Venezuela have
deposed also under oath to quite the reverse, and, in this matter of
evidence, declaration stands opposed to declaration.

We cannot get at the motive which led the claimants to conceal the
existence of the document from their government ; nor why they did
not at once furnish those explanations which, to Mr. Hames, appear
so satisfactory to invalidate it and strip it of all effect.

Sum up all that has been alleged in relation to the document, and
it will be seen that there was no possibility for the employment of
either fraud or force. Not of the former, first, because there were
among the Americans some who understood the Spanish, and espe-
cially C. H. Lang, one of the agents, who was well versed in the
language. Secondly, because not only Commodore Cotarro, but Lang,
interpreted the permit, word for word. Thirdly, because in case that
they were not satisfied as to what they were doing, they ought not to

a te

AVES ISLAND. joo

have signed it. Fourthly, because if, as supposed, resort was had to
force, and the end attained, fraud could have been of no use, and thus
vice versa. Fifthly, because the title of Venezuela existed independ-
ently of any other consideration. Not of the latter, because, first,
only three officers were ashore before the signing of the document and
in the act of concluding it. Secondly, because the evident superiority
of the Americaus refute the possibility of fear which they allege.
Thirdly, because the agents stated the names of the constituent com-
panies, and provided the paper, ink, pen, and other appliances of
writing. Fourthly, because far from departing, they remained on the
island and availed themselves of the permit. Fifthly, because their
whole conduct is inconsistent with that of men who yield to violence.
Sixthly, because neither before signing, in the act of signing, or after
signing, did they offer the slightest resistance or protest. Seventhly,
because they did not protest in the United States. Highthly, because
no act of violence is adduced, nor blows, nor wounds, nor death.
Ninthly, because the supposed threat of expelling them from the island
was in fact impracticable... Tenthly, because the officers of Venezuela
declare that no such thing occurred. Eleventhly, because there is no
proof of violence. Twelfthly, because the witnesses brought forward
to establish the fact of violence are the very individuals who pretend
that they were the objects of that violence. Thirteenthly, because a
document cannot be annulled by the verbal declaration of the very
individual who signed it. Fourteenthly, because the declarations
were taken without notice to, and without the intervention of Vene-
zuela. Fifteenthly, because they are copies certified by no one. Six-
teenthly, because Gibbs’s declaration has been mutilated—for what
cause is not known. Seventeenthly, because it was not exhibited,
except upon the advertence of this government. Highteenthly, be-
cause the declarations of the Venezuelan officers contradict them at all
points. Nineteenthly, because, if force was used, fraud was useless
and vice versa. 'Twentiethly, because three of the declarations do not
mention force. Twenty-first, because in the unadmitted supposition
that threats had been uttered against them, having passed off unexe-
cuted, the Americans complied with the conditions of the permit, thus
confirming their own consent. T'wenty-second, because all the pre-
sumptions make against them. Twenty-third, because they could
defend, and ought to have defended, a possession which they said was
a lawful one; and yet they did not do so. Twenty-fourth, because,
admitting that they had rights, they renounced those rights by their
own act. ‘T'wenty-fifth, because the reasons on which they ground
their submission are wholly frivolous and incredible. Twenty-sixth,
because the declarants, with one exception, not understanding, as they
affirm, the Spanish language, their declarations fall back on Lang’s,
their interpreter, himself one of the signers. Twenty-seventh, be-
cause they alleged no right to the island, but, on the contrary, stated
that they were there, as they had been in other islands of Venezuela,
for the purpose of filching guano. Another fact which makes conclu-
sively against the claimants, is the secret and unlawful manner in
which they acted in the dispatch of the vessels sent to Aves Island,
even to the infringement of the laws of their own country. From

336 AVES ISLAND.

information sent by the legation of Venezuela in Washington, it ap-
pears that in the custom-house at Baltimore there is no entry made of
the arrival of the brig M. H. Comery, which left Boston, on ballast,
for Mogador, on the 22d of June, 1854, and proceeded to Aves Island ;
nor that the same custom-house shows any registry of the clearance of
the ship Kentucky, which sailed for Aves Island in the month of
September, 1854.

That the bark Carlo Mauran, the master of which, says Gibbs, was
Safford, and which was dispatched from Liverpool, at what date is not
stated, did not sail directly for Aves Island in December, 1854.
Neither the custom-house of New York, Philadelphia, nor Baltimore,
shows a registry of her clearance.

That the brig John R. Dow went from Boston to St. Thomas in
March, 1854, for account of Shelton and others. N. P. Gibbs deposes
that he sailed from Baltimore in this brig in the month of March,
1854, at Shelton’s cost, upon an excursion to the Caribbean sea in’
search of guano islands, and that having found the Aves, and gone to
Boston, he sailed thence about the middle, or the 20th, perhaps, of the
month of June, 1854, for Aves Island, with lumber, &c. The vessel

‘goes out with a destination to St. Thomas, and Gibbs says for an ex-
cursion to the Caribbean sea. He conceals his true destination, and
deceives the American authorities themselves. Inthe month of March
he undertakes a voyage from Boston, and in his declaration he substi-
tutes for that port the port of Baltimore. Are such falsehoods the
concomitants of an honest and lawful occupation ?

There is another point which deserves notice. This Gibbs was act-
ing incommon with Lang. Both, in the beginning, were in Shelton’s
service. They agreed to divide the island and the guano between them-
selves, leaving the question of ownership to their principals. They
moved in accord on every point. It even appears that Lang’s opinion
was the preponderant one; Gibbs, at least, to justify his conduct in
signing the document, invokes the example of Lang. Besides this,
the latter understood Spanish, and was, with Gibbs, the organ of
communication. In spite of all this, it is noticed that the legation is
inclined to separate the case of the one from that of the other, leaning
to Gibbs’s side.

Lastly, all the declarations appear to have been taken in June, 1855,
either by anticipation or after Mr. Hames had suggested that the docu-
ment altered the character of the question, and that the Americans
should be applied to for explanations in relation to it. It is easily to
be conceived that in such a juncture nothing was to be expected but

_ that by every means at hand they should bend themselves to the secure-

ment of the triumph of their interests at the expense of truth, and of
everything else that stood as an obstacle in their way. , Thus it was,
and in no other way, that those declarations were framed.

Mr. Eames considers it to be a most extraordinary and unjustifiable
thing that, in order to shut the door against this claim for indemnifi-
cation, we should insist on a paper which was signed solely to prevent,
and which did prevent a conflict, and perhaps a very probable destruc-
tion of life. ;

This is mere declamation, as we shall proceed to prove. The threat

AVES ISLAND. 337

which Jed them to sign the paper was that of compelling the Ameri-
cans immediately to quit the island, if we are to attach any credit to
the declarations. Going off, therefore, they would have avoided the
consummation of the mischief, satisfying at the same time every wish
of Colonel Dias, and, indeed, their own wishes, which certainly did
not turn toa fight. ‘This is evidently proved from the fact that when
on the 31st of December they were notified to leave, although they
were placed in more favorable circumstances than those in which they
stood at Colonel Dias’s arrival on the island, there was no conflict, no
bloodshed, no killing, but there was a quiet departure from it. Be-
sides all this, had they voided the island from the beginning, they
would have stood on more favorable ground to advance their claim.

Mr. Eames maintains that the term derelict applied to an island which
was known long time before but not reduced to any possession or in-
cluded in any jurisdiction—an island which he sometimes calls res
nullius—comes within the strictly legal and lexicographical meaning of
the word ; one which perfectly applied to Aves Island in June, 1854,
(perhaps July, see the declarations,) when the claimants commenced
taking out guano, and that there is no inconsistency in calling derelict a
thing that no one, that is, no power, either possessed or controlled.

The inconsistency does exist, as will be seen. Things derelict are
things abandoned by the owner with the intention not to hold them
any further as his own, and which may thus be acquired by the first
occupant. ‘The digest of the Roman law, from which the expression
has been borrowed, thus lays it down: ‘‘Qua ratione vertus esse videtur,
st rem pro derelicto a Domino habitam quis occupaverit, statim eum
Dominum effici. Pro derelicto autem habetur quod Dominus eamente
abjecerit ut id in numero rerum suarum esse nolit, idelque statim Domi-
nus ejus esse desinit.’’ (Instit., lib. 2, tit. 1, § 47.)

‘The Digest, in a series of separate articles, lays down the principal
circumstances which verge into a lawful ground of possession: such
are those in which a man possesses zs iy pro derelicto,
when one possesses himself of a thing that has been abandoned. In
all these examples, if he who sold, donated, settled in dower, gave in
payment, or abandoned, was not the owner, then property is not en-
tirely acquired, but there is a ground for prescription.’’ (Ortolan,
Historical Explanation of the Institutes.) ‘‘ Things that really belong
to nobody, res nullius, are as follows: first, those of which man has
not yet possessed himself, or which he has entirely abandoned ; in the
second place, things segregated from human commerce, and which are
termed things of divine right, res divint juris. As to the first, they
are the objects which the owner casts off, because he no longer requires
them,” &c., &c. (Ortolan, ibidem.) ‘‘The abandonment of a thing
made by any one with the will that it shall no longer be his, becomes,
for him who may possess himself of such thing, a just title, a convey-
ing title, to the property ; he who abandons, tacitly consents that the
dominion of the thing which he foregoes shall pass over to him who
took possession of it.’’ (Pothier on Prescription.) ‘‘If the owner
abandons anything movable or immovable, with the intent no longer
to include it in the tale of his possessions, whether because it be

Ex. Doce. 10 22

338 AVES ISLAND.

useless or onerous to him, or indeed through a mere whim of his
mind, he loses his dominion over such thing, and the first occupant
thereof converts it into his own.’’ (Laws 49, 250, tit. 28, part 3.)
“¢ St res pro derelicta habita sit, statim nostra esse desinit, et occupantis
jit.’ (Kscriche, Dictionary of Legislation—ad verbum, abandoned.)

But beyond this, the Latin verb derelinquere, from which derelict
is derived, signifies the same thing as abandonar in Spanish, which
means a man’s voluntary disseizing, and forever, of his own property.
Webster’s American Dictionary of the English Language, after addu-
cing the etymology above referred to, defines the word derelict to
mean left, abandoned, as an adjective; and as a substantive, in law,
to mean ‘‘an article of goods, or any commodity thrown away, relin-
quished by the owner.’’ .

But why quote other authorities, when Mr. Hames himself, driven
by the force of things, has uttered the following words: ‘‘ Not the
slightest doubt or difficulty can grow out of the fact, to which the
undersigned has been referred, namely, that the captaincy general of
Venezuela having been established in 1751, was the last of the conti-

‘nental governments constituted by Spain and embraced that part of
the continent of America which had not been comprehended in the
several continental governments previously formed. Because all the
territory of those continental governments originally formed a part oi
the jurisdiction of the government of St. Domingo, and they were
successively cut off from that jurisdiction. But besides this vast con-
tinental territory, the government of Santo Domingo, as appears from .
the laws of the Indies, published in Madrid, 1786, book 2, tit. 15, in-
cluded also all the Windward Islands, among which, as we have seen,
is found the Aves in question; and this group of islands never was
separated from that jurisdiction by Spain, nor assigned to the jurisdic-
tion of any of the continental governments, much less to that of Ven-
ezuela, which, in the beginning, was a dependency of New Granada,
and thus continued until the year 1751.”

If the government of Santo Domingo comprehended all the islands
of the windward among which Aves Island, now in question, is found ;
and if this group of islands never was, by Spain, separated from that
jurisdiction, nor assigned to the jurisdiction of any one of the conti-
nental governments, it is evident that it was reduced to the possession
and embraced within the jurisdiction of Spain, to which Santo Domingo
belonged. Let this acknowledgment be viewed in conjunction with
the one subsequently made by Mr. Hames, namely, that it was Spain
that discovered the Aves. .

The Aves, therefore, being derelict, as it is called by Mr. Hames,
must have had an owner, because, on the contrary, no one abandoned
his property in the island with the intent never to claim it again as
his own; and it could bear no other appellation than that of a thing
common to all, both before and after its discovery, under the supposi-
tion,that every one who chose might visit it, and make use of it, going
off immediately and leaving to others the privilege of doing the same
thing.

6 belie thus established that, even in Mr. Hames’s view, the Aves
belonged to some power, and was by it abandoned, and it returned to

4

AVES ISLAND. 339

the condition of a thing. liable to be acquired by occupation, it now
devolves upon him to point out the acts of the owner, significant of
this abandonment. ‘‘ As everything embraced in a country belongs
to the nation; and as none but the nation, or the person intrusted
with its powers, is authorized to dispose of any such thing, if it have
left waste and uncultivated places in the country, no one has the right
to take possession of them without its consent. Although they may
not actually be put to uses, still those places belong to it; it has an
interest in preserving them for future use, and it is answerable to no
one for the manner in which it makes use of its property.’’ (Vattel,
Law of Nations.)

In view of this principle and of the law maxim that the mere inten-
tion of possessing is enough to preserve possession for us, although
we may not bein the actual enjoyment of the thing ; licet possessio
nudo animo acquiri non possit, tamen solo animo retirert potest ; and a
consequence of the above mentioned point being that the ceasing of
enjoying a thing is not sufficient to warrant the loss of it, but that
there must also be an intention of abandoning its possession; it fol-
lows, beyond doubt, that proof of the abandonment is necessarily re-
quired, and so much the more required that if such proof be not made,
presumptions of bad faith must stand against the claimants, because
they do not ground their claim of possession on any title, in conso-
nance with the generally admitted doctrines.

Although many examples might be quoted to show how nations
accept and apply the rule of Vattel, it will be enough to mention one,
which is adduced by Raynal in his philosophical history of the Indies,
in relation to the Lucayas Islands: ‘‘ There are something like two
hundred of them,’’ he says, ‘‘all lying north of Cuba. The majority
of them are bare rocks on the surface of the waters. Columbus, who
discovered them upon his arrival in the New World, and gave the
name of San Salvador to the island where he landed, left no settlement
there, nor did the Spaniards thereafter make any establishments. But
in 1507, all their population was removed, and it soon perished in the
labor of the mines or in the prosecution of pearl fishery. This small
archipelago was left entirely deserted, when, in 1672, it occurred to
some Englishmen to go and take possession of Providence Island.
Having been expelled, seven or eight years afterwards, by orders from
the court of Spain; they returned in 1690, to be again expelled in
1703, by the united forces of Spain and France.”’

Here we have islands the bare and naked discovery of which Spain
could claim, islands in which she made no settlement, islands over
which she exercised dominion, and from which she repeatedly drove
away the English, who had occupied them, although they were unin-
habited at the time.

To the observations of the note of Venezuela as to the inability of
private individuals acquiring property in competition with a sovereign
State, Mr. Hames returns no answer, save one of threat; and the ques-
tion being thus forced from its appropriate ground, there is nothing
left of it but the extent of power of the contending parties. But the
government of the United States, which is aware that the rights of
nations are independent of their greater or less degree of strength, will

ee

340 AVES ISLAND.

not choose, like its minister in Caraccas, to discuss with this species of
argument which would necessarily defeat every attempt to go into a
question of principle. In this behalf we will add that such observa-
tions were intended to make manifest that, even though Venezuela
should not have acquired a title to Aves previous to the year 1854,
the occupation of that island by her must have countervailed the
occupation by the Americans and produced effects which theirs could
not operate. But in order to show that the argument, which com-
mended itself to a threat in leu of an answer, is not so very brainless,
a few quotations will be allowed from various expositors of the law
of nations, by way of sustaining authority:

“‘An independent individual, whether he have been expelled from
his country or have lawfully abandoned it, may settle down in a coun-
try which he finds without a master and there occupy independent
dominion. Any one afterwards attempting to possess himself of the
whole of the country will not be at liberty to do so with justice unless
he shall respect the rights and the independence of this individual.
If the same individual find a sufficient number of men who may choose
to live under his laws, he can found a new State in the country which
he has discovered and occupy its empire and dominion. But should
that individual merely pretend to arrogate to himself an exclusive
right over that country to constitute himself a monarch over it with-
out subjects, his foolish pretensions may well be laughed at, because a
rash and ridiculous occupation can produce no effect in law.’’

‘‘There are also other means through which an individual may
found a new State. Thus, in the eleventh century, a few Norman
knights founded a new empire in Sicily, after having rescued it from
the common enemy of christendom, because the usages of their coun-
try allowed men to leave their native land in quest of fortune on other
shores.’’ (Vattel, Law of Nations.) ‘‘This right includes two things:
Ist. Dominion, by virtue of which the nation can use the country for
its needs, dispose of it, and derive from it all the uses that are re-
_ quisite. 2dly. Government, or the right of sovereign command, -
though it controls and disposes, at will, everything that transpires in
the country.’’ ‘‘When a nation takes possession of a country that
does not already belong to some one it is considered to occupy in that
country empire or sovereignty at the same time that it exercises
dominion; because, its freedom and independence being granted, its
intention in the act of establishing itself in a region, cannot be to
abandon to others the right of commanding within it, nor to any of
those who continue under its sovereignty.’’ The same author says:
‘‘The general dominion of a nation over the lands which it occupies
is naturally united to empire, because, in the act of establishing itself
in a vacant country, the nation cannot intend to depend, in that coun-
try, on any other power. And how can it be possible that an inde-
pendent nation should not command within itself? For this reason
we have remarked that when a nation occupies a country it is pre-
sumed at the same time to occupy the empire inherent to it, but now
we proceed further, and we show the connection which naturally
exists between those two in relation to an independent nation. How
could it govern a country which it inhabits, and after its own notion,

AVES ISLAND. 841

if it could not fully and absolutely dispose of the country? And how
could it have full and absolute dominion of a spot which it could not
command? The control of another, and the rights inherent to it,
would deprive the nation of the free disposal of the place. If to this
be added the eminent domain which is an integrant of sovereignty,
the intimate connection between the dominion of a nation and its °
control will be better understood. Thus, that which is called the
“eminent domain’’ being nothing but the dominion of the body of the
nation, or of the sovereign who represents the nation, is ever con-
sidered to be inseparable from the domain of the sovereignty. The
‘useful domain,’ or that which is reduced to the rights which may
belong to an individual in the State, may be separated from the empire,
and there is no obstacle to its belonging to a nation in those places
which are not under its obedience. Thus, we find many sovereigns
holding fiefs in the land of other princes, and in that case they
possess them as private individuals.’’ The same author:

‘From the moment that a State foregoes or abandons a portion of
its property, an island, for instance, it ceases to be part of its territory,
and hence it belongs to no one—(res nullius.) From that moment it
is allowable for any other State to appropriate it to itself, and to bring
it under its dominion.’’ (Kliber, Law of Nations.)

“‘States acquire all that they can acquire, and they acquire it by
those means that are appropriate, and peculiar to those moral beings
or entities, and in proportion to their conditions of existence considered,
whether in relation to other States with which they form a secondary
society of a different order, or in relation to the individuals who make
up the whole body of each of them. The characteristics of property
and its different divisions impart a varied character to acquisition,
whilst, according to the nature of the latter, the conditions required
for this act of appropriation will be distinct, as will also the conse-
_quences be. States acquire pari passu, or in competition with other
States. States acquire within their own territory in the cases which
are determined by the laws.’’ ‘‘The former of these two classes of
acquisitions, namely: when a State acquires without its boundaries,
presents no important division. Hither the acquisition is made of res
nullius, of a thing belonging to no one, because it is not possessed by
any of the other States, or it is made of property that was occupied by
some one, whichsoever, of said States.’? (Spanish Law Encyclopedia.)

‘* A company purchased the rights of the original grantee, and other
~ companies succeeded the purchaser of the rights. The king abandoned
to them not only the useful domain, but also the empire, the jurisdic-
tion, and the military power. He merely reserved to himself the direct
domain and the right of appointing a governor, whose power was
merely nominal. LKven, then, it was the company that had the pre-
ferment of the governor whom the king was to appoint, and it had the
‘privilege of removing him.’’

** All these possessions were ultimately brought under the domain,
and they finally came to be national property in the year 1674.”’

‘But in all these transfers of ownership, it is invariably supposed,
the right of first occupancy had not vested proprietorship in the islands ;
that the king’s grant was the only title to property. This principle

342 AVES ISLAND.

deserves elaboration; but, in this instance, | am a mere historian.
(Merlin’s Repertory of Jurisprudence—ad verbum, occupation. )

Mr. Eames denies having said that ‘‘the United States in no way
doubt as to the eminent domain of Venezuela over the ‘ Aves,’ and that
they merely contest the peculiar right to the guano found in that

lace,’’ or, at least, he so modifies those words that they do not say
what they really import. Unfortunately there exists no written record
of what occurred when Mr. Hames gave assurance of this thing, and
that more than once, without any reservations of any kind, unless,
indeed, mental ones; but this, notwithstanding the assertion of the
undersigned, will not be called into doubt by any one who will reflect
that it tallies with and it is confirmed by the nature of the demand set
up against the republic. The United States do not claim the island
at her hands as their property; they do not ask for its evacuation and
surrender; they do not ask what the claimants desired; but they do
ask, solely and exclusively, for pecuniary indemnifications. The par-
ties interested in applying to their government baptized the ‘‘ Aves”’
under the name of ‘‘Shelton’s Island,’’ and proposed to cede it to their
government, an offer which does not appear to have met with an ac-
ceptance. It is also known that the question has been debated in the
United States as to whether the right of acquisition lay with the Con-
eress of the Republic or with the executive power; and that an act has
been deemed necessary declaring that the islands that might hereafter
be discovered, as ‘‘ Aves’’ is pretended to’ have been, shall belong to
the United States. |

Mr. Hames endeavors to overthrow the reasons deduced from the
assistance which he lent to Mr. Pickrell, supposing that nothing can
be inferred from it against the present claim.

Although this has already been amply spoken of in the beginning,
it may not be irrelevant to take the American note in consideration.
It begins, on this point, by saying that Mr. Hames’ intervention was
directed to protect the rights and interests which the Wallace contract |
secured as to the guano islands considered as justly belonging to Vene-
zuela, and, of course, in contradistinction with the ‘‘ Aves,’’ which was
not so considered. If such were Mr. Hames’ instructions, he certainly
had no heed of them when he was protecting Pickrell. A copy has
already been given of what he stated to his excellency the President
when he came to urge him to reinstate the Wallace contract ; and in
that there is certainly not one word which goes to except Aves Island.
At no time, more opportune, could it have been proper to state such a
reservation. Especially ought he to have proceeded with due frank-
ness and sincerity, when his excellency remarked to Mr. Hames that
it might be more apposite to settle the matter of the claimants before
Mr. Pickrell’s, pointing out to him at the same time that there was no
connection between the two things, because the ‘‘ Aves’’ were excepted
in the contract. But to induce the government, even by resort to
threats, to agree with Pickrell on conditions almost identical with those
agreed to with Wallace, to begin to insinuate, after the execution of
the new contract, and that in a manner indirect and circumlocutory,
that the insertion of Aves Island in it was made without any kind of
‘sanction or of support on the part of the government of the United

AVES ISLAND. 343

States, or of Mr. Hames; and now to assert that he excepted the
‘¢ Aves,’’ when he was lending his assistance to, Pickrell, is a conduct
which cannot be properly characterized. Never did the President of
the Republic, or the Secretary of Foreign Relations, or that officer for
the Interior and Justice, or any other person connected with the gov-
ernment, hear Mr. Hames say that he made such an exception, and the
testimony of all those persons is now invoked in opposition to Mr.
Eames’s. No such exception was made. Nor is it certain that the
note of the Secretary of Foreign Relations omits all mention of the
principal and conspicuous facts which are revealed in the protection
extended to Pickrell. The secretary spoke, as he ought to speak, in
this manner: ‘‘On such occasions as Mr. Hames had conferences on
this subject with the undersigned, and with his predecessor, both of
them stated to him the views of the government as to that claim, in
relation to which no written answer was hitherto given, both, because
at the time a mere announcement of it was made, and when it was
mentioned in an official note of the legation, it was so In an incidental
manner on the occasion of Mr. Pickrell’s application, and of the ques-
tion between Venezuela and the Netherlands. Mr. Hames himself
repeats, in the note alluded to and in which he puts in a formal de-
mand, that he deems it necessary to consult his government on the
agreement made with Colonel Dias, in view of which he is induced to
delay the presentation of the subject.’’ ‘‘The government hopes that
the foregoing observations will be considered as justifying the serious
objections which it entertains in regard of a claim, the formal discus-
sion of which is just zn limine, now that the legation has received the
documents and other vouchers which it was expecting to accompany
the presentation of said claim, which, therefore, cannot be invested
with the pressing character that would naturally attach to a matter
fully examined in every light; a matter not unattended by serious objec-
tions, requiring much reflection in the very act of its presentment; a
_ matter which from the start had labored under a variance of opinion
on both parts.’’

From the explanations which appear in the beginning of this note,
it will have been seen that this was all that the secretary of relations
could say, or ought to say, because, in truth, nothing else had taken
place, as may be easily inferred from the contents themselves of the
communication of the 20th of December, 1856; and hence the tumbling
down, as a baseless fabric, of all that Mr. Hames recalls and lays down
for the purpose of establishing the fact that there was an omission,
with the view of giving force to certain arguments, of circumstances
which, in his judgment, it was absolutely necessary not to allow to pass
in silence. The government of Venezuela was not called on to inquire
whether Mr. Hames was or was not in Caraccas in the month of De-
cember, 1854. Neither is it accurate to say that Mr. Hames clearly
_ and peremptorily refused to sanction the contract, inasmuch as it re-
ferred to the Aves, although, in the yaar 1855, in a conversation with |
Mr. Aranda, the minister of foreign affairs, he touched tpon a claim
which certain individuals, which found the island, intended to bring
forward.

Equally inaccurate is it to say that during the negotiation touching

344 AVES ISLAND.

Pickrell’s agreement, that there was any reservation as to the ‘“‘Aves’”’
and all the rights and claims of the present plaintiffs, whilst the
proper allusion as to what did occur on this head is made in the
already quoted passage, which appears in the opening of the Vene-
zuelan note of the 27th of February last. The words quoted further
back from the note in which Mr. Hames summed up the observations
made to his excellency, with the view of securing the new contract—
words which are a pure fountain of truth against him in this matter—
do not involve the sense which it is now attempted to give to them ;
but they thoroughly do the reverse. Will any one ever imagine that
an island, in which the existence of guano was positively ascertained
—ridiculously exaggerated into myriads of tons—could have been
excluded from the Pickrell matter on a claim of the legation which
sustained him ?

This note attempts to give some coloring of truth to such an excep-
tion, by insinuating that it was in consequence of it that there was
*‘ omitted all mention of the ‘Aves’ in the article, by which the trans-
ferees of Wallace, with a difference in his contr act, are granted the
usufruct of the guano islands of the republic; and afterwards another
article specified the ‘Aves,’ evidently with the object of releasing Vene-
zuela from all responsibility to said transferees, in the event that, on
account of this claim, or for any other reason, she should cease to pos-
sess or use it for her own benefit.’’ Admitting that in article fifth of
the contract with Pickrell it was expressed that, if from any contin-
gency, or from any cause, Venezuela should lose or renounce her do-
minion over the island of Aves, lying in 15° 45’ latitude, and longi-
tude 64° 45’, the term of fifteen years, in reference to said island,
should be understood to have elapsed, without any obligation on the
part of the government to make any indemnification for the unexpired
time, it is, in spite of such admission, roundly denied that the claim,
not yet presented at that time, was the cause, immediate or remote, of
such a stipulation. The truth is, that ever since 1854 ‘‘Aves”’ Island
had been an object of contention between Venezuela and the Nether-
lands, and that her claims specially engaged the attention of the gov-
ernment at the time when the arrangement with Pickrell was being
made. It was solely and exclusively in view of this controversy of an
international character, that the secretaries of the treasury and of for-
eign relations conceived the idea of such an article, which anticipated
and excepted the case laid down; and this, not through any doubt as
to the rights of the nation to the island, but because it might suit it
to cede that island, or in any other manner to dispose of it.

But there is one reason, above ail others, of a conclusive character.
Mr. Hames’s efforts to obtain the reinstatement of Wallace’s contract
either did, or they did not, include ‘‘Aves’’ Island. If they did not,
there was no room for the involvement of such a question with that of
the other Americans, nor for the reservations made in their behalf;
nor was there any for the salwtary influence which the satisfaction
given to one application would exert on the other, nor for any of the
views which Mr. Hames advanced upon that occasion. If, on the con-
trary, as it indubitably was so, he wanted the ‘‘Aves’’ to continue to

AVES ISLAND. 345

be the subject-matter of the contract, then the following doctrine must
be applied to him:

““The second point which we have noted down, is not susceptible of
much controversy, and all the doctors agree in proclaiming the fol-
lowing maxim: Protestatio contra factum nil relevat. In fact, what
should a protest avail when the act, against which the protest is made,
cannot be maintained on any other ground than on that of renuncia-
tion ?”’

For instance, if I pay an amount which I owe, protesting in the act
that I do not renounce the right of prescription, there-is, in that case,
in my conduct a flagrant contradiction, which destroys entirely the
value of my protest, and warrants its being considered as unwritten ;
because, if my indebtedness be barred by limitation, there is nothing
to compel me to pay it, and if I pay it, it is because I renounce the
right of prescription. The act is bound to carry more effect than can
empty words; areal, effective, and voluntary payment is more telling,
more worthy of consideration than lip reservations and words, often
scarcely weighed. (Troplong’s Treatise on Prescriptions.) .

Mr. Eames does this, and nothing else. He sustains a claim which
necessarily implicates the sovereignty and dominion of Venezuela over
the Aves Island; but, at the same time, he protests against the effects
that must result from his intervention in the matter, by closing the
door against another matter. In other words, the island belongs to
the republic, when she is wanted to grant its usutruct to Wallace’s
transferees; but it no longer belongs to the republic when she wishes
to discredit the pretentions of the claimants. If the guano be not
given to Pickrell she is threatened with a rupture of the friendly rela-
tions existing between the two countries; if the value of the preten-
sions of the present claimants be not acknowledged, the same good
understanding is brought into jeopardy. In requirements thus con-
flicting it is no easy matter to alight on the means of pleasing and of
securing the peace and friendship of the two States. There is no as-
surance that what is requested and preferred as necessary and most
pressing may not, in other circumstances, be converted into a wrong
which would also suggest a necessary and most urgent reparation.

Be this as it may, there is, from what has been shown, abundant
reason for denying any value or consequence to the reservation made
by Mr. Hames in behalf of the claimants; at the very time, too, when
he was working, sustaining as he did, even to the extent of threats,
the reinstatement of the rights conferred on Wallace, or, what amounts
to the same thing, the inclusion of Aves Island in the Pickrell contract.
Venezuela, therefore, is bound to insist on all the arguments which she
has alleged on this head.

Mr. Eames has not confined himself to pretending that the Ameri-
cans are not held to prove the legality of their conduct, but he actually
_ shifts the burden over to Venezuela, which he calls the aggressor. He
has gone further, and declared that whatever pretension to title is pre-
ferred by Venezuela in Aves Island does not present sufficient grounds
to justify a discussion ; and he said this after having stated that he had
not expected to be told that Aves Island belonged to the republic pre-
vious to 1854, as the successor to the rights of Spain that discovered
that island. So that, whilst he wishes to put the burden of proof on

346 AVES ISLAND.

Venezuela, he considers as useless whatever evidence she may bring

forward to make good her dominion over the island; or, in other words,

that his demand should be acceded to without any discussion, merely

because, in his judgment, there is nothing to justify it—a judgment

which he rests on this: that it is not pretended that Venezuela can

allege any title to Aves Island here spoken of on account of contiguity ;

that nowhere is there mention made, in print, of any title or of pre-

tense of a title to the island on the part of Venezuela; that there is

no reason to believe that there can be produced any unpublished docu-

ment written previous to the year 1854, and existing in the archives of
any government, in which the pretension even of such a title is alleged

on the part of Venezuela; that it is not pretended that she ever as-

serted jurisdiction over the ‘‘Aves,’’ nor that she ever made, prior to

1854, any exhibition of title to it such as another government should

respect; that neither has it been proved, nor yet ascertained that prior

to 1854 any citizen of the republic of Venezuela had ever visited that
island either in a private or in an official capacity; that the govern-

ment of Venezuela, acting through its commissioners thereto duly

authorized, announced to the world her official renunciation to all title

or pretension to Aves Island, by not mentioning it as a part of the

territory of the republic in her large map, nor in Mr. Codazzi’s geog-

raphy, an agent intrusted with the management of that extensive work,

in reference to which he goes into an extensive dissertation, for the pur-

pose of establishing the perfection of his labors, both from the assist-

ance and remuneration which were given to the author, and from the
estimation in which it was held in foreign countries, not to speak of
that of the government of Venezuela.

The right of Venezuela to Aves Island cannot be rejected on the
score of contiguity, because, according to the law of nations, islands
adjacent to a continent are reputed to be natural dependencies of the
territory of the nation which possesses it, unless there be proof to the
contrary ; because to such a nation, infinitely more than to any other
nation, is the dominion of such islands important for its security both
by land and by sea; and because Aves Island has no continent more
immediate than that of Venezuela, since, although it be nearer to the
possessions of other nations, those possessions are mere colonies or
isles themselves, which up to a certain time also belonged to Spain.

Without admitting the necessity of a previous declaration of right
to a territory, in order to secure its effective possession, we hold it to
be certain that what is found in print is not a mere mention, but con-
tains express declarations that the Aves Island under discussion be-
longed to Colombia, and belongs to Venezuela. Such are the declara-
tions contained in article sixth of the fundamental law of union of the
people of Colombia, and of the constitution of that republic, which in
the former says: ‘‘The territory of the republic of Colombia shall be
that which is comprehended within the limits of the ancient captaincy
of Venezuela and the vice-royalty and the captaincy general of the
new kingdom of Granada; but the designation of its more precise
boundaries is reserved for a more opportune period.’? Whilst the second
says: ‘‘The territory of Colombia is the same that was comprehended
in the ancient vice-royalty of New Granada and the captaincy general

AVES ISLAND. 347

of Venezuela.’’ And article fifth of the constitution, which obtained
in Venezuela in the year 1854, which says: ‘‘The territory of this re-
public includes all that, previous to the political transformation of 1810,
was denominated captaincy general of Venezuela,’’ in which captaincy
was comprehended. Aves Island, according to the royal letters patent
which created the audience of Caraccas, as will hereafter be explained,
subjecting said island to its jurisdiction. The jurisdiction of Vene-
zuela was, therefore, established over the island under the Spanish
domination by virtue of a document which is, perhaps, unpublished.
Now, admitting the case that this island should never have been visited
by any Venezuelan, it certainly is no proof that it had no owner, since,
as has already been stated, a country may remain uninhabited and still
have an owner ;*whilst to be susceptible of occupation it must be unin-
habited and without an owner. That Mr. Codazzi should have been
commissioned for the construction of plans of the provinces of Vene-
zuela—that he should have collected geographical, physical, and statisti-
cal information—that the time for the presentation of the results of his
commission should have been extended, because much of his time had
been otherwise devoted to a different service—that orders were given
to assist him with funds and all such data as he might deem necessary
for consultation—that his work was appreciated in France—that the
Venezuelan congress considered Mr. Codazzi’s services to be highly
important in the construction of the map of Venezuela and in the pub-
lication of the geography and history of the country, and for these
reasons allowed him a number of copies of his work in payment of the
$15,000 which had been furnished him for the engraving of the map
of the republic and the printing of his geography and history. Nothing
of all these proves that his work was an official one in the true sense
of the word, and much less that it has been approved for perfection or
accuracy in all its parts. ULetit be remarked that his publication was
not made at the nation’s expense, nor that it was declared official by
any public act. A work may be worthy of appreciation, yet not, there-
fore, be free from errors; much more so if it be an intricate work and
require a long examination of the matters treated of. Mr. Hames goes
on with the analysis of the proposition that the island beionged to
Venezuela prior to 1854, as the successor of Spain who discovered it,
for the purpose, as he says, of pulling it to the ground and scattering
it to the winds; but instead of weakening he has strengthened it still
more, as will be seen.

The United States, says Mr. Hames, maintain that the ‘‘Aves’’ was
never reduced to the possession of Spain, or that, if it was so, it was
soon abandoned and derelict, and that if the title of Venezuela to
claim a right to that island is derived from that which Spain had, it
would then become necessary to prove the truth of nine propositions
which he lays down, the first of which only he admits, namely: ‘‘The
_ ‘Aves’ was discovered by Spain.’’

Spain discovered the new continent, and by her exertion conquered
a large portion of it, introducing there her population, her civiliza-
tion, and her industry. Equity demanded that she should be consid-
ered by the European powers as the original mistress of those lands,
and she effectually was so considered. The right of first occupancy,

348 AVES ISLAND.

and the act of taking possession in the name of the sovereign of him
who made the discovery, was the controlling law of those days—a law
which was recognized and sanctioned by the bull of Alexander V1,
issued on the 4th of May, 1493, and which was received and observed.as
a lawful exponent of the public law of those days. _ Hence it was that
the emperor Charles V, and his son Philip II, declared in the law 1st
Tit., Ist Book, 3d Digest of the laws of the Indies, that by act of do-
nation of the Holy See, and by other just and lawful titles, they were
lords of the Western Indies, islands, and mainland of the Ocean sea,
discovered and to be discovered. If other Huropean powers. came to
occupy some lands on the continent or in the islands within the limits
assigned to Spain, it was only by direct concession or by act of war.
Hence the fact, that the island possessions of powers other than Spain,
rest on the treaties of peace by which she has ceded such dominions,
and has recognized them in other conventions. But the lands that
are possessed by sale, cession, or treaty of peace, are necessarily lim-
ited by the contract; and there is no act by which Spain cedes the
island spoken of to any other power. It must, therefore, be consid-
ered as the original property of Spain, excluding the presumption of
an abandonment of it on her part, in view of Law, Title, and Book of
the Digest of the Indies, already quoted, as also 2d book, title 15, of
the Laws of the Indies, published in Madrid, in 1786, quoted by Mr.
Hames himself to prove that the Windward Islands, and among them
Aves Island, formed part of the jurisdiction of the government of Santo
Domingo, adding that this group of islands never was separated by ~
Spain from that jurisdiction, nor assigned to the jurisdiction of any
other of the continental governments, and much less to that of Vene-
zuela, which, in the beginning, was a dependency of the vice-royalty
of New Granada, and thus continued to be until 1751.

Mr. Eames, doubtless, is ignorant of the fact that his Catholic Maj-
esty, by royal order of the 13th of June, 1786, decreed that Maracaibo
should continue united, as it was, to the captaincy general and the
intendency of Caraccas; and to avoid the grievances suffered by the
inhabitants of said captaincy, in being compelled to go on appeals in
their suits to the pretorial court of Santo Domingo, he established an-
other one in Caraccas, composed of a controlling dean, three auditors,
and a crown attorney, allowing the same number of officers to the
court of Santo Domingo, and restricting its district to the Spanish
portion of that island, to Cuba, and to Puerto Rico. The jurisdiction
of the court of Santo Domingo was therefore limited by the territory
of the islands mentioned; whilst to the jurisdiction of Caraccas, then
recently created, was subjected the rest of the territory, which pre-
viously was placed under the jurisdiction of the former court. If, as
Mr. Hames says, all the territory of those continental governments
originally formed a part of the jurisdiction of the government of Santo
Domingo, and were successively cut off from it; if, according to the
laws of the Indies, the Windward Islands were part of the territory
subject to the jurisdiction of Santo Domingo ; and if, by virtue of the
royal letters already quoted, said islands were not comprehended in
the territory to which the jurisdiction of the court of Santo Domingo
was confined, Mr. Hames will be compelled to acknowledge that said

AVES ISLAND, 349

royal letters cut off the Windward Islands from the jurisdiction of Santo
Domingo, and, among them, Aves Island, and brought them under
the jurisdiction of Caraccas, if they had not been placed within it long
before and from the very creation of the captaincy of Caraccas.
Spanish America becoming independent, and different governments
having been organized in the different sections, each one of them re-
sumed, within the territory of each section, the rights of the original
government, because each one of them, in that respect, stood in the
stead of Spain, the original conqueror.
_ The dominion of a nation in a certain territory is attended by its
Jurisdiction over it ; in other terms, by a mixed empire; and vice versa,
jurisdiction over a territory involves dominion in that territory, unless
there be proof to the contrary. Colombia having asserted her inde-
pendence, resumed her dominion in all the territory which had previ-
ously been subject to the jurisdiction of the sections of which it was
composed, and the latter being cut off from the former, they fully
passed into the mixed empire over that part of the territory which
Spain had originally intrusted to their jurisdiction. This explain-
the expression ‘‘successor of Spain,’’ which was used in regard of Ven-
ezuela in a previous note, without intending to ascribe a general char-
acter to that succession, as Mr. Hames seems to have understood.
Admitting, as Mr. Hames has done, the first of his propositions, the
government of Venezuela will only have to advert to the deductions
trom that admission, and to the analysis of the following propositions.
In the controversy which arose between the United States and Great
Britain, they maintaining their right to the territory situated between
the Rocky Mountains and the Pacific ocean, and between 42° and
54° 40! of north latitude, rested their claim on the following grounds:
First. A prior discovery of the mouth of the Columbia river, made by
Captain Gray, of Boston, in the year 1792. Secondly, in the first
discovery of the headwaters of that river, and a survey of its course
down to the sea, made by Captains Lewis and Clark in 1805 and 1806,
and on the establishment of the first posts and settlements made by
citizens of the United States in the disputed territory. Thirdly, on
the acquisition, by the United States, of all the titles of Spain which
were derived from the discovery by Spanish subjects to the coasts of
the region in question, before they had been seen by people of any
other civilized nation. Fourthly, on the ground of contiguity, which
ought to give the United States a right to those territories stronger
than any that could be adduced by any other power. ‘‘If,’’ says Mr.
Gallatin, ‘‘ Great Britain have considered that a few factories on the
shores of Hudson’s Bay give her an exclusive right of occupation as
far as the Rocky Mountains; if the new establishments on the more
southern coasts of the Atlantic justify a claim to the southern seas,
which in fact was asserted as far as the Mississippi—the right of mil-
- lions of American citizens, who are already within reach of those seas,
cannot be repelled without inconsistency. It will not be denied that
the extent of a contiguous country to which an actual settlement gives
a prior right, must, in a considerable degree, depend on the magni-
tude and the population of the establishment and on the facility with

350 AVES ISLAND.

which adjacent and vacant lands may, in a short time, be occupied,
settled, and cultivated by such population, connected with the proba-
bility that their occupancy and settlement may come from other parts.
This doctrine was admitted, in all its latitude, by Great Britain, as
appeared from all the privileges which, extending from the Atlantic
to the Pacific, she granted to colonies then established on the rivers
only of the Atlantic. Much more natural and much stronger is the
claim when it is made by a nation whose population extends to the
central parts of the continent, and whose dominion is acknowledged
by all who reach the Rocky Mountains.’ (Wheaton’s Elements.)

Here we see that the United States themselves have alleged discov-
eries, and especially Spanish discoveries, as a source of right to the
Oregon territory. It is evident, therefore, that they cannot jobject to —
those principles which they themselves have invoked and maintained
in questions of proprietorship of territory, when Venezuela, in her
turn, applies those principles to her use, as the successor of Spain.

It follows, in like manner, from the fourth of those grounds, that
Venezuela, being a portion of the continent nearest to Aves Island,
and of a greater extent, and having a greater population than any of
the islands neighboring on the “Aves, no one can call in doubt the
superiority of the title which Venezuela holds to claim Aves Island as
adjacent land. .

Mr. Eames’s second proposition is, ‘‘ that Spain grounded her title
to Aves Island on the right of discovery, or on any other ground. No
one has hitherto denied to Spain the right of first occupancy and dis-
covery of the new world. All nations have either tacitly or expressly
recognized that right. She did not discover Aves Island only to
which she gave the name. She discovered continents and islands.
She peopled the former and the majority of the latter. Many of these
were adjacent to Aves, which remained, as it were, clasped within her
immense American dominions. She therefore required no actual and
continuous occupation of Aves Island, whether ‘‘ because all that is
found within the precinct of the territory of which a nation has pos-
sessed itself, and which has not been divided among the individual
members thereof, or the particular communities of which it is com-
posed, continues to be common to the whole nation, and constitutes
what is called public property,’’? (Merlin’s Repertory,) or because the
island was naturally to be considered as an appendage or dependency,
eens and politically of the continent, which belonged also to said

pain. |

On the other hand, an island which the claimants call a barren and
uninhabited rock, offering no inducements, was not susceptible of a
permanent occupation, equal to that held by the Spaniards in other
localities, calculated to sustain life, to warrant cultivation, hunting,
and fisheries, &c., but of an occupation in habitu, such as Venezuela
has held and she still holds of that island, and of almost all the other
islands of her right. But why longer discuss this point, if Mr. Hames
here recognizes, against his will, perhaps, the just title of Spain to
‘‘Aves’’ Island, and the fact that she exercised jurisdiction over it,
when he quotes book second, title fifteenth, of the Digest of the Indies,
to prove that the government of Santo Domingo comprehended the

AVES ISLAND. 301

Windward Islands also, and among them Aves Island, adding that
this group of islands never was separated from that jurisdiction by
Spain, and thus recognizing that the eminent domain was in said
island. To the book and title already quoted, may be added book
ninth, title forty-second, Digest of the Indies, by which, through various
letters royal, from 1591 up to 1634, the navigation and commerce of
the Windward Islands were regulated and controlled; title second,
book fourth, also of said Digest, which regulates discoveries by sea,
providing, by the first law, that no one should proceed to the Indies,
to make new discoveries, without royal permission. Do not all these
provisions reveal the exercise of jurisdiction on the part of the govern-
ment of Spain in the Western Indies, islands, and mainlands of the
ocean sea, of which the King has been declared lord and master by
the first law, title first, third book of the Digest of the Indies, whilst
they indicate his decided intention to retain the dominion of all that
vast territory? Is it not a principle recognized in law, that the mere
intention is enough to retain possession? Merlin, in his Repertory of
Jurisprudence, ad verbum “ possession,’’ says: ‘‘ In order to lose pos-
session of a thing, it is not enough that we should cease to have the
enjoyment thereof. It is required that we should have had the inten-
tion of abandoning that possession.’’

The foregoing expositions demonstrate the truth of the third propo-
sition: that Spain maintained her title to Spain, not only up to the -
date of the foundation of the captaincy general of Venezuela, exclusively
deemed satisfactory by Mr. Hames, but that she also maintained it
subsequently to that time.

The fourth proposition is, that Spain included, at the time, Aves
Island in the captaincy general of Venezuela. In the absence of the
original document by which this captaincy was erected, we have the
royal order already quoted, bearing date June 13, 1786, instituting the
court in Caraccas, and circumscribing the district of Santo Domingo,
to Spanish portion of that island, to Cuba, and to Puerto Rico, thus
bringing under the jurisdiction of Caraccas, the territory dismembered
from that of Santo Domingo, a part of which the Windward Islands,
the ‘‘ Aves’’ included, had been. The Windward islands, therefore,
remained under the jurisdiction of the captaincy of Caraccas, where the
new court had been instituted to obviate all prejudices to its inhabitants.

The fifth proposition is, that the ‘‘ Aves’’ continued under the juris-
diction and in possession of that captaincy general until the date of its
independence, under the name of Venezuela. The truth of this propo-
osition lies in the fact that Spain made no change in the jurisdiction
allowed to the captaincy general and to the court of Caraccas, and
neither adjudicated nor ceded the ‘“Aves’’ to any foreign power.

The sixth proposition is, that when the republic of Colombia came
to be organized, the ‘‘ Aves,’’ as a part and parcel of Venezuela, fell
- into the power and came under the territorial sovereignty of that
republic. Than this, nothing more natural. The jurisdiction, dele-
gated by the government of Spain, and which was exercised by the
captaincy and court of Caraccas, inured to the independence of Vene-
zuela, and she resumed her dominion in the territory, over which her an-
cient authorities had exercised jurisdiction in the name of the sovereign,

| Bae AVES ISLAND. a

’ whose allegiance was abjured ; and when the republic of Colombia was
founded, the dominion and soverignty which Venezuela held over her
territory passed over to Colombia, which dominion and sovereignty she
maintained until Venezuela, in separating from her, reassumed them;
and she has maintained them, because there is no evidence that either
the one or the other has made any cession of territory, or an express
declaration of abandonment of any portion thereof, so as to justify the
judgment that it is derelict. On the contrary, if Venezuela have made
any manifestion, it has been in the inverse sense, so that her rights
should never be deemed to have been abandoned. Thus it may be seen
that the law of May 3, 1838, declares the existence in full vigor of the -
pragmatic (ordinances) cedules, orders, decrees, and resolutions of the
Spanish government, sanctioned up to the 10th of March, 1808, which
had been held in observance under said Spanish government within
the territory which now forms the republic, and also of the laws of the
Digest of the Indies, and of other enactments. Thus it is seen, in the
treaty of peace and recognition between Venezuela and his Catholic
Majesty, that the latter, after renouncing by article first all sovereignty,
rights, and actions over the American territory known under the an-
cient name of captaincy-general of Venezuela, recognizes her, in article
second, to be a free, sovereign, and independent nation, consisting of
the provinces and territories mentioned in her constitution and other
laws, and of other, whatsoever, territories or islands which may belong
to her.

This much, said in relation to the sixth proposition, proves the truth
of the three following ones enunciated by Mr. Hames: that Colom-
bia preserved the title and possession of the ‘‘Aves,’’ both of which
passed over to Venezuela when she separated from the former, and
which she has preserved up to this hour, without being disturbed therein
by any one, since no one had there exercised any act that ever tended
to question her possession until a few Americans, disregarding the
rights of property, commenced to take out guano from said island, and
that after having done the same thing in other islands belonging to.
Venezuela. From the moment that she was informed of this, what was
her duty to prevent the prevalence of the idea that the law renounced
her rights? Her forbearance might afterwards have been invoked
to justify against her the presumption of a juris e¢ de jure abandonment;
and, in order not to leave room for such an allegation, the President
ordered that the island should be garrisoned by a force of the govern-
ment, and the Americans on the island be notified of the fact that said
island belongs to Venezuela, so that they should not plead ignorance ;
and, if he instituted no proceedings against them in pursuance of the
laws of the country, it was to avoid, by all means, whatever might
effect in any way the friendly relations of the United States; and it is
- to him a source of regret, of deep regret, that what was an impulse of
generosity on the part of the government, should be adduced by Mr.
Eames as a proof that the proceeding of the Americans were lawful.
By this act the government furnished sufficient evidence that it had no
intention of abandoning its rights, and barred prescription, ‘‘ for which
there is no determinate period of years, because it depends on the nature
of circumstances and things.’’ (Vattel, vol. 2, § 142.)

AVES ISLAND. 358

_After the nine propositions, which Mr. Hames thinks are not proved,
or not susceptible of proof, the first excepted, and yet which have
already been proved, he goes on to say that the ‘‘ Aves’’ was known and
used as derelict for a period of two hundred years, just as he had already
stated in the same note, namely: ‘‘ That, in the judgment of the United
States, this ‘Aves’ Island, having been known for a long period of
time, but not having been reduced to possession, nor included in any
jurisdiction, was derelict, according to the strictest legal and lexico-
graphic sense of the word, in the month of June, 1854.’’ And how can
Mr. Hames maintain that ‘‘Aves’’ Island was not reduced into pos-
session, nor included in any jurisdiction, when he himself has main-
tained in the same note that, according to the laws of the Indies, the
Windward Islands, the ‘‘ Aves’’ included, were part of the territory
subject to the jurisdiction of Santo Domingo? And how can Mr. Eames
maintain that ‘‘ Aves’’ Island ‘‘was known and used as derelict for
two hundred years?’’ when the very laws of the Indies were on the
18th of May, 1680, ordered to be respected and observed, as may be
seen by the law at the head of the Digest, which defines the authority
of the laws of said Digest, among which are found those which exclude
the idea of the abandonment of ‘‘ Aves’’ Island, so that two hundred
years have not elapsed, not even since that date, and much less since
any other posterior date, from which the abandonment of the island
could have commenced. This never took place; but Mr. Eames, wish-
ing to make it appear so, has been, in spite of himself, forced into such
contradictions. Mr. Hames involves himself in difficulties. He main-
tains that Aves Island is derelict, which presupposes that it had a
former owner, who abandoned it; and at the same time he maintains
that it never was reduced into possession, nor included in any jurisdic-
tion, which is tantamount to saying that it never had an owner; and,
again, and at the same time, he maintains that it was submitted to
the jurisdiction of the government of Santo Domingo, a dependency of
Spain, which means that Spain was the owner of the island. The
document upon which he grounds all this does not date two hundred
years back for its sanction, and yet he says that Aves Island was known
and used, as a derelict, for two hundred years.

One by one have all the arguments of Mr. Eames’s note of 31st of
March last, been met and answered. And this has been done as
promptly as was consistent with the necessity of taking some measures
to sift out the truth and, among these, of procuring certain informa-
tion from the United States themselves, and abiling the consultation
of the government council, to which it was the duty of his excellency,
in his judgment, to submit the question, and upon whose opinion,
which it was necessary to await, the present note has been prepared.
New reasons have been advanced; the title of Venezuela to the Aves
has been produced; adverse principles have -been impugned; how ~
aouch the other party ignored has been brought forth into knowledge;
what it considered to be impossible is demonstrated ; the conduct of
Venezuela is completely justified. She still more fully unravels the
causes which have forbidden her accepting a responsibility for damages.

The duty of watching over the national interest, joined to an.assur-

Ex. Doc. 10 23

354 AVES ISLAND.

ance that she had committed no wrong against the claimants, made it
imperative upon her to maintain herself as she has done. The Presi-
dent of the republic cannot bring himself to believe that the President
of the United States, in the opinion of whose minister, according to
his declaration on the 31st of March last, the discussion, so far as he
was concerned, stood closed, can think in a manner very different from
Venezuela’s in view of the foregoing defense and of the substantial
grounds upon which it rests. To entertain any other expectation
would be to warrant the idea that an extraordinary change has taken
place in the sentiments of the United States in respect to Venezuela,
and that every notion of good will and even of mere consideration has
disappeared from the relations of both countries. The republic could
not have had the intention of giving offense either to citizens or to the
government of the United States, and it deems that this declaration,
as spontaneous as it is sincere, will dispel even the shadow of a doubt
on this head. Every claimant, it cannot be denied, calls into action
all the influential means which he may command to reach the ends of
personal advantage, without much sparing of imputations, serious and
absurd as they may be, against the State from which he makes a de-
mand. But the government of the United States is far too enlight-
ened not to appreciate the peculiar circumstances of each individual,
or to adopt the swervings of personal interest. Could the government
have satisfied itself that it has committed an act of injustice, it would
not have delayed to make a due reparation. That the government
has acted under the control of mature deliberations and deep convic-
tions, and: not ‘in mere caprice, will be evident to any one who will
peruse the present document with calm reason. It can have no in-
terest in justifying wrong, much less in doing so, to the detriment of
the United States, whose esteem it labors to deserve by every possible
means. If it refuses to acknowledge the responsibility in question,
it completely vindicates its course of proceeding. If it repels the
charge of dilatoriness, it shows on how slight a foundation it rests.
If it questions the proofs brought forth. by the claimants, it opposes to
those better proofs and unanswerable objections. It relies as much on
its just rights as it does on the high equity and rectitude of the gov-
ernment of the United States, without which all attempts to establish
conviction were worse than vain. This is one of the principal reasons
which have moved the government directly to appeal to that of the
United States, which will immediately, and for itself, inquire into
things with an unprejudiced mind. Venezuela has given proofs not
to be disregarded, some of them quite recently, of the high esteem in
which she holds her friendly relations with the United States. She
has, upon all occasions, deferred to their wishes, accepted the com-
pacts which were proposed to her, has done justice to their reclama-
tions, has strived to remove all the obstacles that might trammel her
purpose of drawing the two countries into closer bonds. Such are her
sentiments now and such will they continue to be, notwithstanding a
regretful difference of opinion about a pecuniary claim, which ought
in no event to assume such an aspect as to jeopard the peace of two
republics admonished by their mutual interests of the necessity of
living in cordial harmony.

AVES ISLAND. 355

His excellency the President of Venezuela hopes that his excellency
the President of the United States will stand in this expected position,
under an abiding trust that he will not overlook these considerations
when he will have come to weigh in the scales of his eminent and
impartial judgment, all and each one of the reasons scattered through
this note.

The documents used herein are marked by the letters A, B, C, D,
EK. The first embraces the measures taken previous to the declarations
of Colonel Domingo Dias, First Lieutenant Pereira, and First Com-
mander Manuel Cotarro, together with the declarations themselves.
The four following letters refer to official communications of the min-
ister of war and of the navy, and of Messrs. T. Leon Coronado and
P.8. Laroche, commanders of the national armed vessels to which
they refer. Finally, the letter F looks to the royal order of his
Catholic Majesty, given at Aranjuez, on the 13th of June, 1786, which
constitutes Venezuela’s title to Aves Island.

The undersigned, Secretary of Foreign Relations of Venezuela,
avails himself of the present occasions to tender renewed assurances
to the Secretary of State of the United States of his most distinguished
consideration.

JACINTO GUTIERREZ.

His Excellency Tur Secretary oF STATE

of the United States.

Ae

[Translation.]

SECRETARYSHIP OF STATE IN THE OFFICH OF WAR AND MARINE, DIVISION OF
MARINE.

Caraccas, May 15, 1857.
To the Commanding General of the Province :

Under date of the 13th instant the Secretary of Foreign Relations
says to me what follows:

‘The executive authority, having agreed to the recommendation of
the council of government on the subject of the reclamation made by
the legation of the United States in behalf of the Americans who
were taking guano from the Island of Aves, has determined that
Colonel Domingo Dias and the subordinate officers who accompanied
him thither, or who remained there until the 31st of December, 1854,
shall depose before the competent authority, and with due solemnity,
in reference to the points contained in said report, which says:

‘«<Phe council of government has made itself acquainted with the
statement of reclamation made by the minister resident of the United
States in behalf of the Americans who set about taking guano at the
Island of Aves; and one of the principal points of that statement

856 AVES ISLAND.

being the imputation of fraud and force which is made against Colonel
Domingo Dias in order to invalidate a document signed by the two
overseers of the laborers on the island, acknowledging Venezuela’s
title therein ; it is deemed proper, before this body gives an opinion,
to place in a clear hght what really occurred on the occasion as well
as other points, which it thinks will be successfully done by the fol-
lowing interrogatories to Colonel Dias and other officers of the marine
of Venezuela who accompanied him, or who remained on the island
until the 31st of December, on which day in the afternoon the Ameri-
cans who were there retired. |

“¢<1st. How was the island of Aves at the time of your arrival;
who were on it; what were they doing; what had they there; and in
what manner did they justify their presence there? Did they oppose
the landing of the Venezuelan force, and allege any right to the
island, either by considering it as belonging to ‘the United States, or
as a thing common or peculiar to them?

“¢¢9d. What took place between the Americans and you, and led
to the drawing up of the document which you and two of them signed?

“<<3q_ Who acted as interpreter to explain to Lang and Gibbs the
tenor of said document, or of the permission you gave them to con-
tinue taking guano ?

“<¢d4th, Whether said gentlemen or others of those who accompanied
them were acquainted with the Spanish language? and state, in that
case, who they were.

<¢5th, Whether the Americans who signed the document were
well acquainted with the value and force of each and all of its articles?

‘¢¢6th. Whether the act of signing it was entirely voluntary on
their part, or was it the effect of compulsion in any respect?

“‘<Tth. How many individuals composed the Venezuelan guard,
and what munitions of war had they, and how many Americans were
there, and what were their means of resistance?

‘¢¢8th. What provisions, implements, machines, timber, rope,
houses, furniture, or other effects, had the Americans on the island;
and of these things, what remained there, and for what reason, when
they retired from the island on the 31st of December, 1854?

‘““< 9th. What preparatory labors had been performed for removing
the guano; what labors are requisite for the digging out of this sub-
stance ; whether they had already any guano ‘piled up ready to be
shipped ; whether they shipped it in virtue of the permission which
you gave them to continue doing so, or it remained on the island ?

“10th. What is the size of the island of Aves, and what are its
productions and its capacity for habitation ; and is it easy to approach
it and to land? And ~

‘©¢11th. Whether on the arrival of Colonel Dias at the island of
Aves, and before signing the document to which the second interrog-
atory relates, there were anchored at the island any American vessels,
of those which were loading with guano, on board of which might
have embarked not only Charles H. Lang and thirty laborers, which
he says he had, but also all the other ‘Americans who were ‘on the .
island ?’

‘You will be pleased to indicate to me the day on which this act

AVES ISLAND. Biiy i

takes place, in order that Mr. Hames may be invited to witness it, if
he thinks proper ?’’ je

And the executive authority having directed me to send you a tran-
script thereof, and to authorize you to be pleased to cause Colonel
Domingo Dias, the captains of frigate Manuel and Luis Cotarro, who
commanded the schooner-of-war Falcon, which performed the commis-
sion to the island of Aves; the second lieutenants, Avelino Rodriguez
and Pablo Garcia, subordinate officers on the same; the first heuten-
ant, Nicolas Pereira, adjutant to the first named officer ; and the second
lieutenant, Jesus Maria Arrillaga, now second in command of the
schooner-of-war Monagas, to appear before your command, in order
that they may give their depositions in regard to the points mentioned,
it being incumbent on you to notify in advance the minister resident
of the United States of the predetermined day, in order that he may
be present at the proceeding, if he thinks proper.

I am your obedient servant,
CARLOS L. CASTELLI.
A copy.
GUTIERREZ.

CoMMANDING GENERAL’S OFFICE,
Caraccas, May 18, 1857.

Let the determination of his excellency the executive authority be
complied with. For this purpose the 30th instant, at twelve o'clock
in the day, is fixed—heing appointed as secretary, Lieutenant Olegario
José Meneses, who swears duly to discharge the duties intrusted to
him. Let the suitable summonses and notifications be made.

MANUEL CALA,
General.
T. F. pe LA GUERRA.
Adjutant of the post.
O. Jos# Munuszs.

On the same date the necessary notifications were made.

On the 30th of the same month appeared before this command
Colonel Domingo Dias, thirty-three years of age, commander of the
Penh of Laguayra, who, having first been sworn according to law,
said :

Question. How was the island of Aves at the time of your arrival ?
He replied, that when he reached it, on the twelfth of December, at
seven o’clock at night, three vessels were anchored there. ,In the
morning of the following day he went ashore, in order to ascertain
what they were doing there, and it turned out that they were anchored

for the purpose of loading with guano; and, moreover, that some

eighty individuals were on shore, engaged in digging it out and
putting it on board.
Question. Who were on the island? He replied, some Americans,

who were directed by two individuals that represented two firms in

the United States.

=

358 AVES ISLAND.

Question. What were they doing? He replied that he had already
stated.

Question. What had they there, and in what manner did they jus-
tify their presence there? Did they oppose the lauding of the Vene-
zuelan force, and allege any right to the island, either by considering
it as belonging to the United States, or as a thing common or peculiar
tothem? He replied, that they had there some twelve houses and a
kind of wharf to facilitate the shipping of the guano; that on exam-
ining them in regard to the matter of their presence there, Mr. Lang,
one of the agents of the two firms referred to, replied that they had
been on a number of the islands belonging to Venezuela; that on
many of them they had found guano; that from some they had dug
this substance, as from the Brothers; that they had taken a schooner
load, and that they had fixed themselves on the island of Aves be-
cause there it was not so easy for Venezuela to discover them. This
is the way in which they justified their presence there. In regard to
the landing, there was no resistance, and they not only alleged no
right to the island, but agreed with the deponent that it belonged
neither to the Union nor to themselves.

Question. What took place between the Americans and you, and
led to the drawing up of the document which you and two of them
signed? He repled that on their answering in the manner they did,
and in pursuance of the orders of the government to prevent them from
continuing to take off guano clandestinely from our islands, he sum-
moned them to stop their labors. Thereupon they made known the
losses they had sustained, one of their vessels having stranded, and -
another having been stoven in, and the sums which they had expended
on the houses and wharf, in order that in view thereof, they might be
permitted, on the score of humanity, to continue loading their vessels,
which had not yet sufficient guano on board to serve for ballast. This
is what took place between us, and occasioned the document to which
the interrogatory refers.

Question. Who acted as interpreter to explain to Lang and Gibbs
the tenor of said document, or of the permission you gave them to con-
tinue taking guano? He replied, Mr. Lang, who spoke Spanish per-
fectly well, for he said he had navigated for a long time in the Pacific
on the coast of Peru, and who, if he had not said he was an American,
would have been taken for a Spaniard; that he, Dias, did not know at
that time a single word of English, as the little knowledge of it he
now has was acquired in the United States, where he lived for one
year, from 1855 to 1856. It ought also to be observed that Captain
Manuel Cotarro, who commanded the schooner-of-war which conveyed
him, knew a little English, and assisted Lang, though imperfectly, in
the translation.

Question. Whether said gentlemen, or others of those who accom-
panied them, were acquainted with the Spanish language, and state,
in that case, who they were? He replied, that of those who accompa-
nied them, two of the laborers, one a Peruvian and the other a Chilian,
spoke Spanish, but he does not know their names; that the rest he has
stated,

Question. Whether the Americans who signed the document were

AVES ISLAND. 359

well acquainted with the value and force of each and all of its articles ?
He replied, yes, they were well acquainted with their value and force,
for Mr. Lang and Captain Cotarro translated the documenta second
time for Gibbs, who was the one who did not understand Spanish.

Question. Whether the act of signing it was entirely voluntary on
their part, or was the effect of compulsion in any respect? He replied
that it was entirely voluntary ; that they not only thanked him ver-
bally, but with demonstrations of gratitude for the benefit he had
~ conferred on them, compelling him not only to dine with them that
afternoon, but loaded him with presents, which he took with him to
Laguayra. On the other hand, he could not have had printed in said
document the names of the houses to which they belonged.

Question. How many individuals composed the Venezuelan guard ;
and what munitions of war had they ; and what were their means of
resistance? He repled, that the garrison that he left on the island
consisted of ten men under command of First Lieutenant Nicolas
Pereira; that they were taken from the twenty-five to twenty-seven
which formed the schooner’s whole complement; that they were armed
each with his musket and he does not remember how many cartridges,
(paquetes,) and a four-pounder with twenty-five loads; that he has
already stated that there were some eighty Americans; that they had
about fifty pairs of pistols, carrying an ounce ball, forty or more guns,
some boarding pikes and axes, two small cannon, six pounders to eight
pounders, with corresponding balls and a certain amount of powder,
which was not less than two quintals.

Question. What provisions, implements, machines, timber, rope,
houses, furniture, or other effects had the Americans on the island ;
and of these things what remained there, and for what reason, when
they retired from the island, on the 31st of December, 1854? He
replied, that he does not know what provisions ; that in regard to im-
plements, they had some seventy to eighty wheelbarrows, and the
shovels requisite for that number of individuals to work, of whom some
were filling and others were loading ; that in regard to machines, he
did not see any; that the only timber was that of the vessel which had
been lost ; that he did not see any rope; and that he has already men-
tioned the houses ; that the furniture which he saw was that belonging
to the cabin of the brig which had been lost, and consisted of a table,
a looking-glass, some ship’s chairs, and a chronometer; that he cannot
say which of these things remained there, nor for what reason, if any
remained, as he was only on the island on the 13th of December ; that
concerning this last matter, information can be furnished by Captain
Joaquin Vale, and the first lieutenant, Nicolas Pereira.

Question. What preparatory labors had been performed for removing
the guano; what labors are requisite for the digging out of this sub-
stance; whether they had already any guano piled up ready to be
shipped; and whether they shipped it in virtue of the permission
which you gave them to continue doing so, or it remained on the
island? He replied: A wharf had been constructed for shipping it ;
that for digging it no labor was requisite but removing a foot of earth
from the top, xt being already in a condition to be taken up with a
‘shovel; that they had no guano piled up, because such an operation

360 AVES ISLAND.

was not necessary; but that, according to the accounts of Lieutenant
Pereira, they continued loading the vessels which were there and those
which arrived afterwards.

Question. What is the size of the island of Aves, and what are its
productions and capacity for habitation; and is it easy to approach it
and to land? He replied, that it was about 700 varas [Spanish yards |
long, and 125 broad, and some twelve to fifteen feet high, [Spanish
feet;] that its sole production is guano; that it is not adapted for hab-
itation, because in violent storms it is covered by the sea, and it is -
impossible to obtain fresh water on it; that it is easy to land on it,
but not so easy to approach it, as it is remarkably flat.

Question. Whether, on your arrival at the island of Aves, and be-
fore signing the document which was agreed to, there were anchored
at the island any American vessels of those which were loading with
guano, on board of which might have embarked not only Charles H.
Lang and thirty laborers, which he says he had, but also all the other
Americans who were on the island? He replied, that he had before
stated there were three vessels, and that they would very well hold all.
the individuals who were laboring on the island, with all their effects,
as one of them measured eight hundred tons, and was of itself alone
capable of holding them.

At this stage, the witness made known that, as the interrogatories
were terminated, he had something to add on his own part, which
being allowed by the court, he stated as follows: That Lang had made
known to him that the island was divided into two portions, and there-
upon showed him the boundaries; that one portion, to wit, the larger,
was that on which he was digging, and that the other, on which Gibbs
was digging, had not enough guano to load the two vessels which were
at anchor.

And the witness having signified that he had concluded, and this
deposition having been read to him, together with his additional state-
ment, he said he had nothing more to add, and that what he has stated
is the truth, and he formally ratifies and signs it.

MANUEL CALA, General.
DOMINGO DIAS, Deponent.
O. JOSH MENESES.

On the ist of June, of the same year, appeared the first heutenant,
‘Nicolas Pereira, thirty-one years of age, who, having been sworn
according to law, on being interrogated, said:

Question. How was the island of Aves at the time of your arrival ;
who were on it; what were they doing; what had they there, and in
what manner did they justify their presence there; did they oppose
the landing of the Venezuelan force, and allege any right to the island,
either by considering it as belonging to the United States or as a thing
common or peculiar to them? He replied that there were three ves-
sels of the American flag anchored at the island; that there were on
it some eighty Americans, all men, and no women or children, and
were under the direction of Mr. Lang and of Mr. Gibbs; that these
Americans were taking guano from the island; that they had two
pieces of artillery of six-pound caliber, with the appropriate ammuni-

AVES ISLAND. 361

tion, some fifty muskets, some thirty rifles, thirty cutlasses, some
twenty-five boarding-pikes, and some fifty pairs of pistols carrying an
ounce ball; and that, as regards their justification for being on the
island, they represented that they were there taking guano, and that
they did not take it from islands nearer the mainland, although they
had found guano on them, because they might be discovered, and that
from one of them only they had taken a schooner load; that he does
not state the name of the island from which they took a schooner-load
because he does not remember it ; that they did not oppose the landing
of the Venezuelan force, nor allege any kind of right to the island ;
and that they asked Colonel Dias to allow them to load the three large
vessels which they had there, and others which, dispatched by their
firms, might subsequently arrive, and this in consideration of the
losses they had suffered and the expenses they had incurred, to which
request Colonel Dias yielded, but only till the government should
otherwise dispose, his act being wholly one of humanity, since he had
not the power to concede so much, as the colonel himself told them.

Question. What took place between the Americans and Colonel
Dias, and led to the drawing up of the document which he and two of
them signed? He replied, that Colonel Dias granted them a favor in
permitting them to continue taking guano, and they asked that he
would grant it in writing; at the same time, they offered to render
the guard every assistance which it might need, for the colonel had
made known to them that he left but little provisions and water, and
it was under these circumstances that the writing was drawn up which
has been spoken of; and observing that they had a large number of
fire-arms and side-arms in proportion to the small guard which re-
mained, he said to them that those arms were to be guaranteed by the
military, to which they agreed. That the arms referred to have
already been mentioned.

Question. Who acted as interpreter to explain to Lang and Gibbs
the tenor of said document, or of the permission which he (Dias) gave
them to continue taking guano? He replied that Mr. Lang acted as
interpreter to Mr. Gibbs; that Mr: Lang spoke Spanish with such
entire perfection that he needed no interpreter, but, on the contrary,
corrected some small mistakes which were made in the writing ; that
the document was written by the deponent in his own handwriting, in
their house, on their paper, and with their pen and ink, which they
voluntarily presented to him for that purpose.

Question. Whether said gentlemen, or others of those who accom-
panied them, were acquainted with the Spanish language, and state,
in that case, who they were? He replied that besides Mr. Lang, who,
as he has said, spoke Spanish, there was a Peruvian Indian, called
Santiago, and a young Chilian, called Francisco, whose surnames he
does not know, who acted continuously as interpreters after Mr. Lang
had done so.

Question. Whether the Americans who signed the document were
well acquainted with the value and force of each and all of its articles ?
He replied that with respect to Mr. Lang, he could answer that he was
well acquainted with their value and force; that, with respect to Mr.
Gibbs, he believed that he perfectly understood them, for when the

362 AVES ISLAND.

deponent wanted bread, he had nothing else to do than to point to the
number of the article in the manuscript, which has been mentioned,
in which it was stated that whenever the deponent should need any
provisions they would furnish them, until some government vessel
should arrive.

Question. Whether the act of signing the document was entirely
voluntary on their part, or was the effect of compulsion in any respect ?
He replied that it was voluntary; that he did not see among them the
slightest appearance of doubt, apprehension, or mistrust; and that
there was no kind of threats or coersion in that act.

Question. How many individuals composed the Venezuelan guard,
and what munitions of war had they; and how many Americans were
there, and what were their means of resistance? He replied that
during the act of signing the writing that was made, there was not a
single soldier on shore; that afterwards ten men were landed to form
the guard; that they had ten guns, ten cartridges, and a four-pounder .
cannon, with its ammunition; that with respect to the number of
Americans, he has stated it; and that their means of resistance was
the arms which have been mentioned, and the powder to be used with
the fire-arms.

Question. What provisions, implements, machines, timber, rope,
houses, furniture, or other effects, had the Americans on the island;
and of these things, what remained there, and for what reason, when
they retired from the island on the 31st of December, 1854? He
replied that with regard to provisions he was entirely ignorant of what
they had; that they had hand-barrows and some shovels and picks ;
that they had no machine; that they had some pieces of board on
which they ran the wheelbarrows; that they had no rope; that they
had from eleven to thirteen wooden shanties, the best one of which
was sold to the deponent for a pound, and belonged to Lang ; that an-
other, in which Gibbs lived, was granted to deponent for the guard,
at the time of deponent’s going ashore ; that the rest, almost entirely,
were unroofed and completely demolished by them; that these houses
were so fragile, that those to the eastward were heavily stowed with
coral stone to protect them from the force of the wind; that, moreover,
they had some launches by which they conveyed the guano on board,
one of which they sold to the captain of frigate Joaquin Vale, at from
a doubloon to twenty-one dollars; they left two worthless ones ashore,
because they could make no use of them: another worthless one they
set on fire, and the rest they took with them; that there remained,
therefore, on the island, the leavings of the demolished houses, the
house which they sold to the deponent, the one which they gave for
the guard, and in the water some floating timbers of a wharf, which
they destroyed contrary to their will, and which was composed of some
pine logs, some useless pine flooring, and pieces of board already worn
out by the frequent use which had been made of it; that after they
had made known that they had finished loading, and that there was
nothing more which they wished to carry away, they sold him twenty-
five barrels of water that were on shore for twenty-five dollars in coin.

Question. What preparatory labors had been performed for removing
the guano; what labors are requisite for the digging out of this sub-

”

AVES ISLAND. \ 3638

stance; whether they had already any guano piled up ready to be
shipped ; whether they shipped it in virtue of the permission which
was given them to continue doing so, or it remained on the island ?
He replied that, for the removal of the guano on the Island of Aves,
no preparation was necessary, except to take a little sand from the
top, to place the guano in the carts, and to ship it, an operation which
is performed with the shovels, and consequently there were no prepar-
atory labors; that there was no guano piled up, because it was not
necessary, as may be understood from what he has already stated ;
that, accordingly, they went on taking guano, and went on shipping
it in virtue of the permission which had been given to them.

Question. What is the size of the Island of Aves, and what are its
productions and its capacity for habitation ; and is it easy to approach
it and to land? He replied that he did not know its exact size, but
that it is some five hundred varas from the northeast to the southwest,
which is its greatest length, and some hundred and fifty varas wide
at the center, which is its greatest breadth ; and that it 1s from about
eleven to thirteen feet high; its latitude 15° 40’ 20” north, and its
longitude is found in the meridian of Isla Blanca; its only production
is guano; it has no capacity for habitation, because it lacks water and
is washed by the sea in storms, a thing which happens every year at
the equinox ; it has a cove to the west southwest, which is very dan-
gerous when the winds are from the north, and everywhere else it is
surrounded with reefs which render a landing impossible.

Question. Whether on the arrival of Colonel Dias at the Island of
Aves, and before signing the document to which the second interrog-
atory relates, there were anchored at the island any American vessels,
of those which were loading with guano, on board of which might
have embarked not only Charles H. Lang and thirty laborers, which
he says he had, but also all the other Americans who were on the
island? He replied, that there were three vessels there of heavy ton-
nage, as he has before said, and that one of them alone was sufficient
to carry eighty men, according to Spanish regulations, for the vessel
measured eight hundred tons, as he was informed by her own captain
and Mr. Lang; that there was another measuring five hundred tons,
which was the bark Corcor, belonging to the firm of Lang & Delano ;
that, as to the third, he does not know how many tons she measured,
but she was also a vessel of large size; that the first-mentioned vessel
was called the Amazon, and her captain spoke Spanish; that this
statement in regard to the captain refers to article four, or the fourth
interrogatory of those which he has already replied to, and that, in
consequence of what he has already stated in regard to the capacity of
the vessels, he thinks that all of them could have embarked, with all
their goods and chattels, if they had so desired.

On this, his deposition being read to him, he said that what he has
stated is the truth, that he has nothing to add or take away from it,
and that he ratifies and signs it.

MANUEL CALA, General.
NICHOLAS PEREIRA, Deponent.
O. JOSE MENESES, Secretary.

364 AVES ISLAND,

On the fifth of June, of the same year, appeared before this com-
mand Captain Manuel Cotarro, forty years of age, an officer, with an
invalid’s certificate ; and he having been sworn in legal form to state
the truth in answer to what he should be asked, the commanding gen-
al proceeded to address to him the eleven interrogatories mentioned in
the letter of the Secretary of State in the offices of war and marine,
dated the 15th of May last, which begins the papers in this record.

To the first interrogatory hé said, that on the 12th day of Decem-
ber, 1854, he arrived at the Island of Aves, and landed on it on the
13th, at six o’clock in the morning, by direction of Colonel Dias; that
he found on the island some eighty Americans, who had three vessels
at anchor ; that these individuals were employed in taking guano and
in shipping it; that they had there a kind of wharf, which consisted
of some wooden beams of a wrecked vessel, fragments of which still
remained on the shore; that they had also about a dozen small houses

or shanties, which were constructed of old timber, perhaps of wrecked |

vessels; that the Americans stated to them that they were on the
island in search of guano, as they had been on other islands of Vene-
zuela with the same object; that they did not oppose the landing of
the Venezuelan force, but on the contrary, sent them launches in order
to land the soldiers, the water, provisions, and a four-pounder cannon,
with its corresponding ammunition, as a defense for the guard; that
they did not allege any right to the island, but, on the contrary, after
making known the reason of their being there, which was to seek for
guano, they said they might be permitted to finish loading their ves-
sels, as they wanted to compensate themselves for the damages they
had sustained by the loss of some of their vessels, expenses of the
enterprise in which they were engaged, and labor on the small houses
and a kind of wharf which has been mentioned; that these represen-
tations were made in such a supplicating manner that nothing less
could be done than to yield to their request; that the Americans re-
ferred to were all men, no women or children being seen among them,
were clad in the dress of sailors, and belonged to two companies, at
the head of which appeared two gentlemen named Lang and Gibbs.

The second interrogatory being addressed to him he said: That on
granting them the favor to finish loading the vessels, as already men-
tioned, the Americans demanded that the permission should be given
to them in writing, in consideration that they might meet Venezuelan
vessels and have to prove their right to the cargo they were carrying ;
that on this account the document mentioned was granted to them, in
which was specified the concession made to them, and the reason for
it; and the national vessels-of-war were prohibited from preventing
said persons from finishing their loading; that, besides said document,
the Americans asked for an order to the officer who remained on the
island in charge of the guard, to the end that the vessels mentioned
should not be prevented from continuing to load.

The third interrogatory being addressed to him he said: That the
deponent acted as interpreter to explain the document in conjunction
with Lang, an individual who understood Spanish.

The fourth interrogatory being addressed to him he said: That,
besides Mr. Lang, he remembers that there were two persons from the:

ek

AVES ISLAND. 365

Hast Indies who were also acquainted with Spanish, whose names he
does not recollect.

The fifth interrogatory being addressed to him he said: That the
Americans were as well acquainted with the force and value of each
and all of the articles of the document as the deponent; it was read
and translated to them more than ten times, and explained article by
article.

The sixth interrogatory being addressed to him he said: That it was
voluntary, as well as solicited by themselves for a security, as has been
stated ; and, consequently, that there was no appearance of compulsion
in any respect.

The seventh interrogatory being addressed to him he said: That the
Venezuelan guard was composed of twenty-five men, of whom ten
remained on shore; that they had ten muskets, ten cartridges (paquetes),
and a four-pounder cannon, with its ammunition; that the number of
the Americans he has already stated; that the Americans had two four-
pounder cannon, with their corresponding balls and powder, a number
of rifles, say forty or fifty, and a like number of pairs of pistols, a few
more or less.

The eighth interrogatory being addressed to him he said: That they
had some casks, some containing water and others empty, two barrels
of meat, half a one of pork, a barrel of flour commenced on, and a hog;
this in regard to provisions; that of implements, he saw shovels, crow-
bars, and wheelbarrows, but all in very small number; that they had
no machines; that they had no timber; that the houses he has already
mentioned, twelve small shanties; that of furniture, he saw some, such
as a table, a sofa, a looking glass, and a chronometer, articles belong-
ing to a wrecked vessel, as he noticed by the make of them, and as Mr.
Lang himself said they were; that, besides what he has stated, there
_ were no other articles of any kind on the island; that he cannot say
whether those articles remained on the island or not, the whole or a
part of them, as the deponent left on the said thirteenth day.

The ninth interrogatory being addressed to him he said: That there
were no preparatory labors for removing the guano; that to dig out
this substance it was only requisite to take off a layer of sand and take
it out with shovels; that there was no guano-piled up, because as fast
as they dug it out they shipped it; that during the thirteenth day the
déponent saw the Americans continuing to load with guano in virtue
of the permission which Dias gave to them. ?

The tenth interrogatory being addressed to him he said: That the
Island of Aves is about 700 varas long by about one hundred and
twenty-five wide, and some twelve to fifteen feet high; that it produces
nothing but guano, as there is not even a single bush on it; that it is
not adapted for habitation in consequence of being frequently inundated
during heavy storms, and because it is impossible to obtain fresh water
on it; that it is not easy to approach it and to land, because there is a
heavy sea, and the anchoring ground is distant.

The eleventh interrogatory being addressed to him he said: That
before the signing of the document or permission, to which the second
interrogatory relates, the same three vessels which have been previously
mentioned were there, for he found them on his arrival and left them

/

366 AVES ISLAND. :

at his departure from the island; that these vessels were sufficient for
Mr. Lang and his laborers to embark on, as the smallest one would
hold five hundred tons, and one of them measured eight hundred tons;
that, as he only staid at the island one day, he does not remember the
names of these vessels.

On his deposition being read to him, he said that he had nothing to
add or take away, and that all that he has stated is the truth, which
he ratifies in form and signs.

MANUEL CALA, General.
MANUEL DEL COTARRO, Deponent.
O. JOSE MENESES, Secretary.

CoMMANDING GENERAL'S OFFICE,
Caraccas, June 10, 1857.

Let these proceedings be returned to the Secretary of State in the
offices of War and Marine, inasmuch as the other officers mentioned
are not now at this post.

MANUEL CALA, General.

A copy. GUTIERREZ.

B.

[Translation. ]
Republic of Venezuela.

SECRETARYSHIP OF STATE IN THE OFFICES OF WAR AND MARINE, DIVISION
- OF MARINE.

Caraccas, October 25, 1855,
26th year of the law and 45th of Independence.

Mr. Secretary of State in the Office of Treasury:

In the log-book of the war-schooner Monagas, which has arrived at
Laguayra from the Island of Aves, is a paragraph of the following
tenor:

“Tuesday, 2d, to Wednesday, 3d of October.—At 4 p.m. of this day
came in sight of The Brothers. On passing through the channel be-
tween Orquilla and El Pié, we found anchored at the latter an
American schooner. We lay to and hoisted our flag; she did not
display hers. The boat was launched, and the second officer went on
board. On the boats drawing near, it was noticed that many persons
came hurriedly down to the beach of the island, The boat waiting
for them on the shore, they got in, and went on board and hoisted the
American flag. The second officer asked the captain for his papers,
and he gave him a passport and a contract; he did not want to give

AVES ISLAND. 367

him the vessel’s register. He was then summoned, on the part of the
commanding officer, to come on board of our schooner, which he was
unwilling todo. The second officer came and returned in company
with the commanding officer. The captain then said that he was
there loading with guano; that he had ten tons on board and sixty-
five bags ashore; that he had gone there from Laguayra; and he
showed his register. The schooner was called the White Swan, of
Baltimore, Captain J. Henry. The commanding officer informed him
that he must remain at anchor until daybreak, when he would com-
municate his orders. The captain agreed to this. The boat came
alongside and we then commenced beating between Orquilla and
El Pié, not being able to anchor because we were unacquainted with
the anchoring ground. In one of the tacks, a little longer than the
rest, the schooner made sail. (It was then 1 o’clock of the morning.)
On noticing it we pursued her. Finally we descried her, and con-
tinued in her wake until four o’clock, a.m. On getting within aver-
age cannon shot distance from her we fired several loads of ball and
erape at her. She again left us. We made all sail, although our
sails were reefed, and we kept up the pursuit until 11, p. m., when we
could no longer overtake her. Then we tacked ship, and again re-
turned to The Brothers.”’

Which I have the honor to inclose to you for your knowledge and
further purposes.

I am your obedient servant,
FRANCISCO ORIACH.
A copy.

[ SEAL. | GUTIERREZ.

C.
[ Translation. ]
Republic of Venezuela.

ScHooNER-OF-wAR MonaGas, aT ANCHOR IN THE CRUCITA,
October 16, 1855.

Mr. Minister of State in the Office of Treasury:

In the long and painful voyage I have had to make since I left
Laguayra on the 19th of August last, I went finally to the Island of
Aves and anchored there ow the 28th of September, and, after having
put ashore Senor Rafael Miranda, superintendent of the guano in that
island, I was informed by Lieutenant Francisco Atiles, the commander
of that garrison, that the official communication which was transmitted
to him by Colonel Jelambi, his immediate superior, did not impose on
him the duty of allowing any vessel to load, though it were dispatched
by Senor Gusman, until the supreme government should prescribe its

368 AVES ISLAND.

regulations through the regular channel, empowering Senor Miranda
to dispatch vessels with guano from that island.

T deem it proper to inform you that I leave this port for La Orchila
and Los Rogues in the fulfillment of my duty, and, although I expect
to arrive in a few days at Laguayra, I make known to you that at the
small islands The Brothers, to the north of Macanao, I found an
American schooner loading with guano stealthily, and, although I
pursued her with the vessel under my command, I could not overtake
her, but I captured eighty bags of the substance, which she was unable
to ship, and I retain it on board.

I am your obedient servant,
J. LEON CORONADO.
A copy.
[SEAL. | GUTIERREZ.

1D),

(Translation. ]
fiepublic of Venezuela,

ScHOONER-OF-W AR MonaGas,
At anchor at Laguayra, October 23, 1855.

Mr. Secrétary of State in the Office of Treasury:

I have now, at 4, p. m., just cast anchor in this roadstead, on my
way from Barcelonce, Tortuga Island, and Higuerote.
xk x x * : * x x

On the 29th, I set sail; I arrived at Juan Griego, but did not enter
harbor. I went to the Brothers and to the small island known by the
name of EH] Pié. On coming out I found an American schooner steal-
ing guano. I immediately lay to, and the second officer proceeded to
visit her. JI afterwards went myself. I learned from the captain that
he was there loading with guano. He brought to me at the side her
papers, which did not seem to me to be legal, and I imposed on him
the duty of remaining at anchor until the following day—it was then
six in the evening—when I would communicate to him my orders, and
I continued tacking between El Pié and La Orquilla, the other island.
The wind was blowing strong; we had the least possible sail set. I
was ait and the second officer forward all night, detained giving orders,
and ourselves working side by side with the sailors. From time to time
I heard the voice of the second officer telling me that the bonnet of the
jib was torn to pieces, and that another was being set, &c., and I re-
plied to him—keep courage. In one of the tacks, a little longer than
the rest, the schooner escaped from us. Immediately we crowded sail
and pursued her. At daybreak we were within average cannon-shot
distance, and fired several times at her with ball. Immediately she
again went ahead of us. I followed her until the following day at

AVES ISLAND. 369

noon, when, perceiving that I was unable to continue the pursuit, I
returned to El. Pié. We searched the whole island, and found there
some bags filled with guano, some with stone, and others empty, im-
plements, rope, picks, &c., left there by the Americans. In the fissures
of the stone guano of various kinds was found, samples of which I
have on board, and also have the articles left by the persons belonging
to the schooner. I then returned to Juan Griego, communicated what
had taken place to the governor, and thereupon went to Barcelona. I
was there two days. From thence I came to La Tortuga, and after-
wards to Higuerote, to gather information about the state of Laguayra
and Caraccas, and moreover, to take in a fresh supply of water. There
I got sick, and could not leave until the 22d, and to-day I have arrived _
in this port.
J remain your obedient servant,

J. LEON CORONADO.

A copy.

[SEAL. | GUTIERREZ.

[ Translation. ]

E.
Command of the war schooner, ‘12th of December, 1848.

VELA DE Coro, September 17, 1855.
Mr. Secretary of State in the Office of Treasury:

In fulfillment of the commission and orders which his excellency
the executive authority has thought fit to intrust to me in regard to
my keeping stzict watch over the islands of Los Monges and coast of
Paraguana, I have to communicate to you the following:

On the 13th of the last month, I came to anchor in this port, for
the purpose of landing General Falcon, agreeably to your official
order; and on the 14th, at daybreak, I set sail for the islands of Los
Monges. Onthe same day I arrived at those islands, and on the
following day I examined them, one by one, carefully; finding on the
first isle, which hes to the southward, two small shanties made of
boards and temporarily constructed; and on the latter, lying further
north, another shanty made of boards, and smaller than the shanties
on the former island, but of the’same construction. In these shanties
were living the North Americans, who were removing guano. I
ought to state to you that the kind of guano which is on these islands
must be of superior quality to that heretofore discovered on the other
islands, on account of its being without any mixture of sand, and on
account of its stronger smell, for it is composed of the stones, them-
selves petrified with earth, or limestone dissolved from those stones.
This is a sufficient reason for believing that it is better; but there is
also much difficulty in removing it, and consequently a vessel of regu-
lar size, coming to these islands to load with guano, may calculate on

Hix. Doc. 10-——24

370 AVES ISLAND.

a period of a month when laboring with a sufficient number of men,
unless it does not receive much stone, for on these islands there is
really no convenient position for getting it at once on board. After
the greatest labor in getting it out and separating it from the stones,
it has to be placed in large launches at the openings of the island, in
order to convey it to the vessels. These launches are liable to be fre-
quently broken to pieces, owing to the desolate character of that island.
On the 23d of August last, availing myself of a period of fair weather,
I came to the determination of mooring the vessel with a chain to the
shore, in a cove or small harbor formed by the southern isle. This
cove is somewhat sheltered by the island, and I remained there
through the whole night, with uneasiness, for the want of cables. On
the following day an American bark made her appearance near me,
and was moored in the same fashion. Her captain afterwards came
on board, and on my inquiring into the object of his coming to the
island, he replied that he came freighted from Boston to load with
guano; that the bark was called the Tom Corwin, Captain Hiram
Burt, and that they had been assured that they would find persons on
the island who would deliver to them the cargo. After this state-
ment, he told me that they took the loose stones to which the guano
adhered, Sround them, and mixed them with Peruvian guano. This
intimation of the captain was caused by some bags filled with stone
which I had found on the island.

After being there for two hours, he set sail for Caracao. From that
date I have nothing more to add, continuing always on my cruise be-
tween those islands and the coast of Paraguana, meeting on the latter
many Dutch and Venezuelan vessels which were going to load with
salt at the saline of Guaranao.

On the 26th of the same month, on our water giving out, I went to
obtain some at the point of La Macolla; I there found a sunken
launch full of water. I then went ashore, when some individuals in-
formed me that they lived on the grazing farm of Sefior Luis Hermoso ;
that that launch had brought from the island of Oruba twenty-four
persons, a body of laborers, which the Americans had for working at
the guano, and that the captain of the bark which had loaded with
guano on those islands was about to convey them to Oruba, but being
prevented by the strong currents and the scarcity of provisions, and
not being able to go to that island, the captain determined to give
the launch of the vessel to these individuals, in order that they might
transport themselves to that island; but this being also prevented by
the currents, they left the launch at anchor, and afterwards embarked
in asmall sloop. The launch is in my possession.

Yesterday I anchored in this port, where I had been on the 13th of
the last month, and left on obtaining provisions, and to-morrow I shall
set sail for the Monges, where I shall continue, in order to fulfill my
instructions.

[«, All of which I have to communicate to you, in order that you may
deign to lay it before the supreme government. |

Iam, with every attention and respect, your obedient servant,

P. 8. LAROCHE.
A copy.

[SEAL | GUTIERREZ.

AVES ISLAND. 371

[Translation.]
le

The king having made himself well acquainted with the petition of
the municipal corporation, court of justice, and regiment of the city
of Maracaibo, in regard to his majesty’s deigning to reintegrate their
province to the dominion, rule, and government, political and mili-
tary, with all their incidents, of the vice-royalty of Santa Fé, from
which it was segregated by royal decree of the 6th of September, 1777,
and likewise with what the late viceroy cf the kingdom, Don Manuel
Antonio Flores, and the attorney of his royal treasury, as well as your
lordship and the governor of that province, have reported on the mat-
ter, his majesty has determined, in view of the whole, that the prov-
ince of Maracaibo shall continue united, as at present, to the captain
generalship and superintendency of Caraccas, attention being paid to
what is prescribed by royal decree, of the 15th of February of this year,
in regard to uniting the city of Truxillo, and its jurisdiction, to the
government of Maracaibo, and in regard to the erection of the province
of Varinas into a separate command of its present rank. And in order
to prevent injuries from arising to the inhabitants of said province of
Maracaibo, and to those of the province of Cumana, Guayana, Mar-
garita, and Trinidad, comprised in the same captain generalship, in
resorting by appeal in their affairs to the superior court of Santo Do-
mingo, the king has determined to create another superior court, to
be composed now of one chief justice, three associate justices, and an
attorney, leaving a like number of judges in that of Santo Domingo,
and circumscribing its district to the Spanish part of that island, the
island of Cuba, and the island of Porto Rico, for which purpose his
majesty appoints, at the present time, the three judges which are to
serve in each of them.

I make this known to your lordship by royal order, for your knowl-
edge and government.

God preserve your lordship many years.

Aranjuez, June 13, 1786.

SONOXA

To the IyrenpEnt or Caraccas.

Caraccas, November 27, 1786.

Let this royal order be communicated by circular, and recorded in
the court of exchequer and general auditorship of army and royal

treasury.
SAAVEDRA.

This royal order has been recorded at Caraccas, on the 5th of De<
cember, 1786.

A copy.

[SEAL. | GUTIERREZ.

372 : AVES ISLAND.

Mr. Eames to Mr. Cass.

No. 41.] LEGATION oF THE UnrtTeED Status,
Caraccas, November 3, 1857.

Sir: With reference to my No. AQ, of 31st ultimo, it is now with
ereat satisfaction that I have the honor to acknowledge the receipt, at
ten o’clock of the evening of that day, (a few hours after sealing my
No. 40,) of your No. 56, vot 6th ultimo, with its inclosures. It has
of course removed from my mind all doubt of the propriety of the
course I adopted in suspending the reading of your No. 53 in my first
interview with Mr. Gutierrez; and it gives me what I deem just the
necessary discretion as to my future course in the Aves case.

Of course I have lost no time in taking my position in conformity
with the state of the case disclosed in the dispatch and its inclosures ;
and in taking that position, I have fortunately found myself aided
rather than embarrassed by the action I had already taken under your ©
No. 53.

I inclose copy and translation of the note of Mr. Gutierrez, of yes-
terday’s date, in reply to my request for a special audience, and copy
of my note of the same date waiving for a brief period that request.
Of my personal interview with the “president, referred to in my note
of yesterday to Mr. Gutierrez, I have only to inform the department
that it was entirely courteous, and I think even cordial on the part of
his excellency; and it is proper to add, that at the interview with Mr.
Gutierrez of yesterday morning, the form of his reply to my note re-
questing the audience was arranged, and also the general character of
my answer to it. This answer itself being somewhat full and explicit,
supercedes the necessity of any further account to the department in
this dispatch of the action I have taken since the receipt of its No. 56.

It is gratifying to me that without the aid of that dispatch, I made
in my first interview with Mr. Gutierrez, in view of the information
which he then gave, the very points as to the position of my govern-
ment in the ‘“Aves”’ case, which I perceive to have been made to Mr.
Ribas in your note to him of 11th of September last, doubtless upon
similar information.

With reference to the first paragraph of your No. 56, in which I am
informed that it was expected and understood that I should again visit
Washington before embarking for Caraccas, I have to express my great
regret that I was not aware of such expectation or understanding ;
because, in that case, I should at once and very gladly have acted upon
it by reason of my high sense of the importance to a diplomatic agent,
especially when charged with a question of any difficulty, of personal
communication with the Department of State. In fact, when I left
Washington, I was under the contrary impression that the department
desired me to reach Caraccas as soon as practicable, and I regulated
my movements accordingly, at some sacrifice of personal convenience.

In great haste, I have the honor to be, with the highest respect and
consideration, your obedient servant,

CHARLES EAMES.

Hon. Lewis Cass, Secretary of State.

AVES ISLAND. ; 373

[ Translation. ]
Republic of Venezuela.

DEPARTMENT OF ForErIGN RELATIONS,
Caraccas, November 2, 1857.

The minister of foreign relations of Venezuela has the honor to
make known to the honorable minister resident of the United States,
that on the day before yesterday, at three o’clock, p. m., being Satur-
day, and thus the day of the session of the council of government, he
received the note of that date in which Mr. Hames requests an audience
of his excellency the president of the republic, in order to make to
him a communication with which he is charged by his excellency the
President of the United States.

The undersigned will give account of the said note in his first audi-
ence with his excellency, and will at once communicate to Mr. Hames.
the answer.

The undersigned renews to the Hon. Mr. Hames the assurances of
his distinguished consideration.

JACINTO GUTIERREZ.
Hon. CHARLES EAMES, ;
Minister Resident of the United States.

LEGATION oF THE Unitep STATES,
Caraccas, November 2, 1857.

Sra: The undersigned, minister resident of the United States, has
the honor to acknowledge the note of this day’s date of the Hon. Mr.
Gutierrez, in reply to that addressed to him by the undersigned on the
31st ultimo, in reference to a special audience of his excellency the
‘president of the Republic.

The undersigned now hastens to inform the honorable minister of
foreign relations, that at a late hour on the evening of the 3lst
ultimo, and several hours after his note of that date had been received
by Mr. Gutierrez, the undersigned had the satisfaction to receive dis-
patches from his government inclosing copies of the official correspond-
ence on the ‘‘ Aves’’ question, had (since the undersigned received his
instructions and left Washington en route for Venezuela) between the
honorable Secretary of State of the United States and Hon. Mr. Ribas,
the Venezuelan charge d’ ajfaires at Washington, and by which the
undersigned is also informed that the important paper which he was
instructed to communicate to his excellency the President was read, as
the undersigned desired and expected that it might be, to Mr. Ribas ;
that Mr. Ribas requested that the undersigned might be authorized by
his government to delay the communication of the paper in question
to the Venezuelan government until Mr. Ribas could himself commu-
nicate with his government, which he undertook forthwith to do; and
that accordingly such authority to suspend or delay that communica-
tion for a suitable time has been given to the undersigned.

The undersigned promptly avails himself of this, authorization to

374 AVES ISLAND.

announce that the immediate necessity for a special audience of his
excellency the president of the republic for the purpose of making that
communication which, under the instructions of the undersigned, ex-
isted when his note of the 31st ultimo, to Mr. Gutierrez, was written,
has now been, for a short time at least, removed, and that the request
for such audience as contained in that note, is for the present waived.
It will be highly agreeable to the undersigned, and he permits him-
self now to hope, that by a prompt and satisfactory disposition of the
‘‘Aves’’ question, duly made known to him by the Venezuelan goy-
ernment, all necessity for a formal presentation of that communication
may be finally removed, in a manner conformed to the justice of the
case and the dignity and friendly relations of the two governments.
The note of the llth September last, addressed by the honorable
Secretary of State of the United States to Mr. Ribas, defines the un-
changed position of the government of the United States in respect to

the ‘‘ Aves’’ reclamation in terms exactly coincident with the expres- |

sions used by the undersigned upon the same subject to Mr. Gutierrez,
in the conference of the 29th ultimo; and the fact that that note has
doubtless been for some days known to the Venezuelan government,
when taken in connection with the statement made at that conference
by Mr. Gutierrez, that the answer of his government in the case would
be immediately forwarded to Washington, seems to the undersigned
to justify the hope that this long pending question now approaches
that satisfactory solution which its gravity and urgency clearly demand.

Though the undersigned had the honor yesterday to mention briefly
to his excellency the President the substance of most of the above ob-
servations in a personal and informal interview, and though they were
this morning, at the first practicable opportunity, also briefly stated in
conversation to the honorable minister of foreign relations, the under-
signed yet deems it proper to request that this note may be also laid
before his Excellency, with the note of the 31st ultimo, to which it
refers.

The undersigned renews to the Hon. Sefior. Gutierrez the assurance
of his distinguished consideration.

CHARLES EAMES.
Hon. JActnto GUTIERREZ,
Minister of Foreign Relations.

Mr. Cass to Mr. Gutierrez.

DEPARTMENT OF STATE,
Washington, November 12, 1857.

Sir: I have the honor to acknowledge the receipt, on the 4th instant,
of your excellency’s note of the 21st September, ultimo.

The communication on the subject of the Aves Island claim, to which
it refers as having been completed, has not yet reached the Depart-
ment, but whenever it arrives, it shall receive all that respectful con-
sideration to which the views of your excellency must always be
entitled.

eee

AVES ISLAND. 379

In the mean time, I forbear to add any thing to what has recently
been urged on the part of this government with respect to the claim in
question, except to express the earnest hope that the anticipated com-
munication of your excellency may be of such a character as to lead to
its prompt and amicable adjustment.

I avail myself of the opportunity to offer, &.,

LEWIS CASS.
His Excellency Sefior Jacinto GUTIERREZ,
Secretary for Foreign Affairs of the Republic of Venezuela, cc.

Mr. Fames to Mr. Cass.

No. 42. ] LEGATION OF THE UNITED STATES,
Caraccas, December 3, 1857.

Sir: With reference to my No. 41 and its inclosures relating to the
Aves Island claim, I have the honor now to transmit inclosed to the
department further correspondence with this government on that sub-
ject, being copies and translations of two notes of Mr. Gutierrez to me
under dates respectively of 3d and 23d ultimo, with copies of two notes
addressed by me to him under dates respectively of 21st and 30th ultimo.

The department will perceive by this correspondence that in reply to
my request under date of 21st ultimo to be apprised of the determination
of Venezuela in the Aves Island case, and of any action taken for its
prompt adjustment, I am informed by Mr. Gutierrez under date of 23d
ultimo that the answer of this government to that reclamation, pre-
pared before my return here, has been forwarded to Washington through
the Venezuelan legation there, and that in addition to that legation a
special mission of the grade of envoy extraordinary and minister plen-
ipotentiary has now been established, and is about to proceed to the
United States charged with the same subject. The special minister
appointed is Sefior Mariano Briceno. He informs me that he shall
proceed to the United States by way of St. Thomas and Havana by the
packet of the 8th instant, and that he expects to be in Washington on
or before the 1st of January next. Mr. Briceno is the editor of the only
daily newspaper published in this city, and is reputed to be a man of
ability and accomplishment, but he has not heretofore taken a promi-
nent part in politics here, his journal being considered as neutral.

I have considered that a special mission instituted by any govern-
ment to settle a reclamation pending against it is a proceeding of such
a character that the resident diplomatic agent of the government making
the reclamation can rarely, if ever, with propriety interpose objection
to it, except in obedience to specific instructions so to interpose. I have
also considered that the institution of such a mission to settle a claim
is always a virtual acknowledgment that there is a valid claim requir-
ing settlement; and such acknowledgement is still more clearly implied
when, as in this case, the special mission is instituted by Venezuela in
full view of the previous announcement by the United States that the
hability of Venezuela is too manifest to justify or admit further discus-
sion.

>

B16. AVES ISLAND.

It has not appeared to me probable that the department will now
consent to reopen the discussion on the point of liability, or will allow
the negotiation in the hands of the special mission to assume any shape
not compatible with the position taken upon the undisputed facts of
the case by the government of the United States in your note of 11th
of September to the Venezuelan chargé d’affaires. Should the depart-
ment in this view see fit to make the formal and explicit admission of
liability by this government a condition precedent to the reception of
the special mission, I have no sufficient ground to conclude that such
admission will be withheld. My note of the 30th ultimo to Mr. Gu-
tierrez is conceived in this sense.

Your No. 56 acknowledged in my No. 41 is the latest dispatch re-
ceived from the department.

With the highest respect, I have the honor to be, your obedient ser-
vant,

CHARLES EAMES.

Hon. Lewis Cass,

Secretary of State.

(Translation. ]
Ttepublic of Venezuela.

; DEPARTMENT OF ForEIGN RELATIONS,
Caraccas, November 3, 1857.
The Minister of Foreign Relations of Venezuela has the honor to
acquaint the honorable minister resident of the receipt of his note of
yesterday, concerning the subject of the Island of Aves, and that his
excellency the President being, as is known to Mr. Hames at this time
indisposed, the undersigned will not be able to take his orders for a
reply until he shall have recovered from his illness.
The undersigned renews to Hon. Mr. Hames the assurances of his
distinguished consideration.
JACINTO GUTIERREZ.
Hon. CHARLES HAMEs,
Minister Resident of the United States.

LEGATION OF THE UnrTED STATES,
Caraccas, November 21, 18577.

Sir: The undersigned, minister resident of the United States, has
the honor to bring to the renewed attention of the honorable Minister
of Foreign Relations of Venezuela the note of the 2d instant in relation
to the Aves reclamation, in which the undersigned, in view of the state
of that reclamation at that time, expressed the hope that a satisfactory
disposition of it, promptly made known to him by the Venezuelan
government, might preclude the necessity of further action on his part

AVES ISLAND. ate

under his instructions to obtain the determination of Venezuela in the
case.

That note was acknowledged by the Hon. Mr. Gutierrez under date
of 3d instant, and the acknowledgment was accompanied by an inti-
mation that as soon as the health of his excellency the President would
permit, his excellency’s orders would be taken for the preparation of
a further reply; but up tothe present time no such reply, nor any
official communication from the government of Venezuela in reference
to the Aves question, subsequent to the note of the 3d instant referred
to, has reached this legation. ;

It is, therefore, the duty of the undersigned, under his instructions,
to request, and he now requests, to be informed what determination
has been arrived at in regard to the ‘‘Aves’’ reclamation, and what
action, for the purpose of effecting a speedy and satisfactory adjust-
ment of it, has been taken by the government of Venezuela since the
official conference of the 29th ultimo between the undersigned and the
honorable Minister of Foreign Relations on that subject.

The undersigned renews to the Hon. Mr. Gutierrez the assurance of
his distinguished consideration.

CHARLES EAMES.

Hon. JAcINTO GUTIERREZ,

Minister of Foreign Relations.

{Translation. ]
Republic of Venezuela.

DEPARTMENT OF ForEIGN RELATIONS,
Caraccas, November 23, 1857.

His excellency the President of the republic has been informed of
the communication of the 21st instant, addressed to this department
by the honorable minister resident of the United States, referring to
his previous one of the 2d instant, which, as well as the other making
mention of it, the executive power has ordered to be answered in the
manner in which the undersigned now proceeds to answer it.

Before the departure of Mr. Eames from Venezuela for the United
States, five months’ ago, the question respecting the guano of the
Island of Aves not being as yet concluded, the undersigned announced
to him that there being a legation of Venezuela in Washington the
government, in the absence of the American legation from Caraccas,
would enter into an understanding with the government of the United
States through its agent there. This agent was instructed to commu-
nicate this determination, and he made it known to General Cass.
Afterwards, and before the return of Mr. Eames to Venezuela, the
undersigned, on the 21st of September last, commenced an understand-
ing with the said Secretary of State of the Union, completing after-
wards the answer in the month of October last past. That answer was
given as soon as the decision of the council of government, which had
been asked and which had to be waited for, was received. In addition
to this, a special minister has been appointed, with the character of
envoy extraordinary and minister plenipotentiary, in the person of

378 AVES ISLAND.

Dr. Mariano Briceno, to proceed to the United States, notwithstanding
the presence there of another diplomatic agent of the republic. All
this will convince Mr. Eames of the interest with which the republic
views a subject which now occupies it in so many ways, and with such
provisions, through the desire to live in the most perfect understand-
ing with the United States, which is a constant aspiration of his excel-
lency the President, as his conduct towards them has always manifested,
even in the midst of this regretable difference occasioned by the Aves
reclamation.

Tlie undersigned renews to the Hon. Mr. Hames the assurances of
his distinguished consideration.

JACINTO GUTIERREZ.

Hon. CHARLES HAMES,

Minister Resident of the United States.

LEGATION OF THE UNITED STATES,
Caraccas, November 30, 1857.

Sir: The undersigned, minister resident of the United States, has
the honor to acknowledge the note of the Hon. Mr. Gutierrez under
date of 23d instant, in which the undersigned, in reply to his notes of
2d and 21st instant, is informed that a reply by the Venezuelan gov-
ernment to the ‘‘ Aves’’ reclamation having been, in the absence of
the undersigned from Venezuela, commenced on the 21st of September
last and concluded in October last, has been forwarded to the govern-
ment of the United States through the Venezuelan legation in Wash-
ington, and that an additional special mission upon the same subject
has now been, also, instituted by the government of Venezuela by the
appointment of Hon. Senor Mariano Briceno to proceed to Washington
with the character of envoy extraordinary and minister plenipotentiary
of the republic, and this information is communicated to the under-
signed as satisfactory proof of the deep interest in the state of that
reclamation, by which the Venezuelan government is now induced to
adopt such various and special measures for its adjustment.

It is not the purpose of the undersigned in this note to anticipate the
judgment which the government of the United States may form as to
the sufficiency and propriety, in the present state of the ‘‘ Aves”’ recla-
mation, of this course of action by the Venezuelan government, to
accomplish the object proposed. But the undersigned is certainly by
no means prepared to dispute that the establishment by any govern-
ment of a special mission of high grade for the settlement of a recla-
mation pending against it, is at.all times a very formal proceeding, of
grave significance as to the recognized validity and urgency of such
reclamation. Nor does the undersigned fail to perceive that the ante-
cedent facts existing in the present case, and in view of which this
special mission has been established, greatly augmenting its signifi-
cance. Prior to the adoption of this measure the Venezuelan govern-
ment received, both from the undersigned and through its own diplo-
matic agent in Washington, full assurance from the government of the

AVES ISLAND. 319

United States that the liability of Venezuela in the case is too manifest
to justify further discussion; that discussion on that point is, therefore,
considered by the United States as closed; and that the acknowledg-
ment and adjustment of the claim cannot be longer delayed without
serious injury to the friendly relations of the two governments. These
assurances, moreover, were repeated and emphasized in the note ad-
dressed, under date of 11th September last, by the honorable Secretary
of State of the United States to the Venezuelan chargé d’affaires in
Washington, which, after expressing the expectation that the Vene-
zuelan government, regarding its liability as settled, will at once pro-
ceed to investigate the damage done and the amount of indemnification
proper in the case, concludes with the declaration that ‘‘the-United
States feel it to be due to their self-respect that the forcible injury done
to their flag and to their citizens should no longer remain unacknowl-
edged.’’

in such a state of facts all previously made known to the Venezue-
lan government and placed in record before it, the only appropriate
basis and purpose of the special mission upon the subject which it has
now announced cannot be considered as doubtful.

In regard to the reply of the Venezuelan government in the Aves
case which appears to have been sent to Washington, but which has
not yet been communicated to this legation, the undersigned now
deems it proper to repeat what he had the honor to state to the Hon.
Mr. Gutierrez in the official conference of the 29th ultimo on the sub-
ject, that the undersigned arrived in Caraccas specially charged and
instructed by his government to receive in its behalf that reply, par-
ticularly in respect to the point of liability of Venezuela. The sub-
sequent and recent instruction which in view of the representations
‘and requests made by the Venezuelan charge d’affaires at Washington,
authorized the undersigned to delay for a brief period the presentation
of the subject in the definitive form presented by his government, also
announced its assured expectation that the decision of Venezuela in
the case would be duly communicated to this legation, and further
directed the undersigned, in case it should not be so communicated to
him, to inform the government of Venezuela that he has been instruc-
ted to receive ‘‘ that decision in behalf of his government before pre-
senting in formal terms its demands for the adjustment of the claims.”’

Referring to the express mention in his note of the 2d instant, of
such prompt communication of that decision to the undersigned, as
constituting a part of the “‘ satisfactory disposition’’ of the case then
contemplated, and referring also to the specific request in his note of
the 21st instant, to be so informed of that decision, the undersigned
now presents this state of facts upon that point to the attention of the
government of Venezuela in order that it may take such course in the
premises as may appear regular and proper and most conducive to the
good understanding of the two governments upon the subject.

The undersigned renews to the Hon. Mr. Gutierrez the assurance of
his distinguished consideration.

CHARLES EAMES.

Hon. JAcInto GUITERREZ,

Minister of Foreign Relations.

ans psionic

380 AVES ISLAND.

Mr. Cass to Mr. Hames.

DEPARTMENT OF STATE,
Washiugton, December 15, 18517.

Srr: Your dispatches numbered 40 and 41 were received on the
24th ultimo. From their tenor the department is not without hope
that prior to the receipt of this communication, the government of
Venezuela will have evinced such a disposition in respect to the adjust-
ment of the Aves Island claim as to enable you to proceed in the ex-
amination of the subject of damages. On this point it is unnecessary
at present to go into detail. My predecessor’s dispatch of 3d February
last, No. 46, transmitted to you a printed statement of the claim,
together with a reference to the proofs by which it is supported; and
although some of the items embraced in this statement may be rejected
or reduced in amount, it can be safely employed nevertheless as a con-_
venient basis of adjustment. Mr. Sanford, the attorney and repre-
sentative of Messrs. Shelton, Sampson & Tappan, the principal claim-
ants, will carry these instructions to you, and will doubtless cooperate
with you in your efforts to bring the claim to a satisfactory result.
You will find it desirable to confer with him, and, for a thorough un-
derstanding of a matter so important to him, you may afford him
access to such papers and correspondence as relate to the subject.
Having full powers from the principal claimants, he will be prepared
to decide on the spot in reference to any settlement which may be pro-
posed of their claim. The department will not object to one which
may be satisfactory to you and to him. But it may be not inopportune
to suggest, whether in your conferences with Mr. Sanford, prior to the
presentation of his statement of damages, a favorable issue would not
be promoted by your reduction, jointly, of his claim to such an amount
as would fall within the scope of the moderate resources of Venezuela.
A different policy may defeat its own object.

It must be borne in mind, whilst urging this claim to a settlement,
that there are other citizens of the United States who claim indemni-
fication upon the same grounds as Messrs. Shelton & Co. You have
in your possession the papers which they have furnished on this sub-
ject, and in making an agreement with reference to the Shelton claim,
you will be careful to guard against any sacrifice of their rights.
They will be entitled, of course, to whatever damages they may be
found to have sustained by their wrongful eviction from Aves Island.

You will receive with this dispatch copies of Mr. Gutierrez’s note of
the 21st of September, and of my reply thereto of the 12th of Novem-
ber. It is proper to remark, that it is not the intention of this gov-
ernment to remove the discussion of the Aves case from Caraccas to
Washington. It is believed that it may more promptly be adjusted
in Venezuela. The note of Mr. Gutierrez, of September 21, had ref-
erence only to the preliminary question of Venezuela’s liability. His
promised communication on the subject which, in the same note, he
announced as being completed and ready for speedy transmission, has
not yet reached the department. Had it been received, and had it
contained an admission of the liability referred to, the department

AVES ISLAND. 381

would be still disposed to refer the question of damages to our legation
-in Caraccas, where it seems most appropriately to belong. An at-
tempt at this time to transfer the subject to Washington, would
obviously tend to occasion further delay in a case which has already
been protracted to an unreasonable extent.

In committing this subject in this shape to you, it is earnestly hoped
that you will be enabled, without further delay, to bring it to a satis-
factory termination.

I am, sir, your obedient servant,

LEWIS CASS.

CHartes Hamus, Esq., &c.

Mr. Shelton to Mr. Cass.

Boston, December 17, 1851.

Sr: A report has reached us, and we have reason to suppose it is
true, that F. Copeland, of this city, has presented a claim for spolia-
tion or ejectment at Aves Island, in behalf of himself and others. We
wish to state distinctly to you, that neither Mr. Copeland nor any one
connected with him, had any men employed on Aves Island during its
occupation by us, nor any vessel or vessels ejected from thence by any
officials of Venezuela; of this fact we shall be able to give the most
ample proofs should your department deem it necessary.

The claim, if such has been made, is entirely without foundation in
fact, nor can we comprehend the object of said claimants, unless it be
to injure or embarrass us in obtaining our rights.

We are, with much respect, your obedient servants,

PHILO S] SHEE RONE
SAMPSON & TAPPAN.
Gen. Lewis Cass,
Secretary of State, Washington, D. C.

7

Mr. Cass to Mr. Briceno.

DEPARTMENT OF STATE,
Washington, February 24, 1858.

Sir: The necessary delay in translating the extended communica-
tion from the Minister of Foreign Affairs of Venezuela, which reached
this department a few days before your arrival here, and which re-
ferred to the Aves Island claim, now pending between this government
and that of Venezuela, has prevented an earlier attention to what was
understood to be the prominent subject of-your mission.

This claim was presented by the minister of the United States at
Caraccas in the month of March, 1855, and after full discussion there,
which was duly reported to this department, the deliberate views of
this government concerning it were communicated to him in a dis-

382 AVES ISLAND.

patch dated August 31, 1857, of which I have the honor to inclose a
copy herewith.

It will be seen from this dispatch that the government of the United
States regarded the discussion as closed on its part, so far as the ques-
tion of the lability of Venezuela was concerned, to make a reasonable
indemnity to the claimants, leaving the amount thereof quite open for
further consideration, and to be determined hereafter.

The President had great satisfaction, therefore, upon receiving a
special minister from Venezuela on this subject, believing that this
view of the claim had been conceded, and that it was the purpose of
your mission to arrange for an equitable adjustment of damages with
the parties concerned, either here or at Caraccas. ©

Upon reading, however, the communication from Mr. Gutierrez,
already referred to, he regrets to observe that it embraces only an
elaborate argument in favor of the alleged title of Venezuela to Aves
Island, and against the right of the claimants, Messrs. Shelton & Co.,
to any indemnity whatever. This communication, addressed directly
to this department, and not transmitted through the minister of either
country, has, nevertheless, received that respectful consideration to
which it was entitled in consequence of its distinguished source, but
it has wholly failed to change the views of the President’ in respect to
the liability of Venezuela in the case referred to, or to render it desi-
rable, in his judgment, that after a delay of three years, since the
claim was presented, the discussion on that point should be renewed.

Before replying, however, to the communication of Mr. Gutierrez, I
shall be glad to see you at the department on Thursday, the 25th
instant, at one o’clock, and to converse with you upon the subject to
which it refers. Allow me to express the hope that the whole subject
may have been intrusted to your care, and that you may find yourself
authorized to make arrangements for its adjustment upon the basis of
an admitted claim.

I avail myself, &c.
LEWIS CASS.

Senor M. de Briceno, cc.

Mr. Hames to. Mr. Cass.

No. 43.] Legation or THE Unitep STArzs,
Caraccas, February 24, 1858.

Sir: I have the honor to transmit herewith to the department, in
copy and translation, a note addressed to me by the minister of foreign
relations of this government, under date of 18th instant, in reply to
mine to him under date of 30th November last, a copy of which accom-
panied my dispatch No. 42.-

My main purpose in that note was to take the ground before this
government, that the special mission which it had then established
and announced as about to proceed to Washington with a view to the
adjustment of the Aves claim, must be regarded as implying an admis-

AVES ISLAND. 383

sion of the responsibility of Venezuela in the case. The reply of the
minister, though purporting to be now given upon mature consideration
of the whole subject, neither expresses nor intimates any dissent from
that conclusion.

The reasons now assigned by thé minister for declining to commu-
nicate to this legation a copy of the answer of this government in the
case, which was prepared in my absence, and which, as he states, was
forwarded and reached the department in advance of the special mis-
sion, may be considered as not wholly destitute of plausibility. <A
more cogent inducement to this course, however, may have probably
existed in the desire that the paper should be considered by the depart-
ment unaccompanied by any counter observations on my part.

However this may be, the fact cannot have escaped the attention of
this government, although any recognition of it appears to have been
studiously avoided, that in my note of November 30, the communica-
tion to this legation of that answer was requested directly by the de-
partment in advance in its own words, and the refusal to comply with
such a request would seem to be predicated upon the admitted purpose
of a prompt and satisfactory settlement in Washington, inasmuch as
upon any other view, it may be considered as constituting aggravation
of the previous unsatisfactory course of Venezuela in the case.

With the highest respect and consideration, I have the honor to be,

your obedient servant,
; CHARLES EAMES.
Hon. Lewis Cass,
Secretary of State.

(Translation. ]
Republic of Venezuela.

DEPARTMENT OF ForErIGN RELATIONS,
Caraccas, February 18, 1858.

Sir: The undersigned has had the honor to present to the executive
power the note addressed to him on the 30th of November last by the
honorable minister resident respecting the subject of the Aves Island ;
and, after full consideration of the case, the secretary of foreign rela-
tions has been directed to make the following reply:

The answer which Mr. Eames requests has been given to his gov-
ernment, to which he doubtless would have had to transmit it; so that
what is now sought to be done in an indirect manner, has been already
directly accomplished, and is besides useless, because on the 17th of
December last, the answer referred to was delivered to the Hon. Gen-
eral Cass. Moreover, Mr. Eames has been informed that the republic,
notwithstanding it has a legation in Washington, has accredited
another extraordinary and especially charged with the Aves Island
reclamation. This has already entered upon the discharge of its
duties, and in view of all, his excellency believes that the negotiation
should continue there, its prosecution simultaneously in two places
being impossible.

384 AVES ISLAND.

I reiterate to Mr. Hames the assurances of my distinguished consid-

eration.
JACINTO GUTIERREZ.
Hon. CHaries EAMEs,
Minister Resident of the United States.

Mr. Briceno to Mr. Cass.
[Translation.]

LEGATION EXTRAORDINARY OF VENEZUELA TO THE UNITED STATES,
Washington, February 24, 1858.

Excettent Sir: I have just received, this day, your exeellenen 8
note of the 22d- instant, in which you set forth the precedents con-
nected with the question of Aves Island, in the sense of the note of the
31st of August, 1857, (copy of which was annexed,) transmitted by -
your excellency to the United States legation in Caraccas. Your note
states that Mr. Gutierrez’s of the 3lst of October last, has in no way
succeeded in altering the opinion which the President of the United
States has formed as to the responsibility of Venezuela in the claim
referred to, and concludes with a proposition to the effect that, before
an answer be given to Mr. Gutierrez’s said note, an interview should
take place at the Department of State, to-morrow, at one, p. m.

I duly appreciate the position in which the government of the United
States places itself in the transfer of the question to this capital. Al-
though I see with regret that Mr. Gutierrez’s last note, accompanied
by convincing proof, has failed to justify, in the judgment of the Chief
Magistrate of the State, the conduct of Venezuela in the premises,
still I rejoice at the disposition which he evinces of hearing the envoy
extraordinary in this negotiation, before he shall definitively judge of
the value of the defense, and of the incidental charge of willful procras- —
tination, which it is my duty, in the name of my government, to repel
with an irresistable power, derived from the official correspondence
itself, between Mr. Marcy and Mr. Eames, on this question, the merits
of which the cabinet at Caraccas could not put forth, because it was not
in possession of the whole of it.

With the assurance that I shall be punctual at the appointment to-
morrow, I remain, with sentiments of'most distinguished consideration,

your excellency’s very respectful servant,
M. De BRICENO.

His Excellency General Luwis Cass,
Secretary of State.

Mr. Cass to Mr. Briceno,
DEPARTMENT OF STATE,
Washington, February 26, 1858.

Sir: I have had the honor to receive your note of the 24th instant,
and regret that I was unavoidably absent from the department at the

AVES ISLAND. 385

time of our proposed interview. If it will be convenient. for you to
meet me on Monday at one o’clock [ shall be glad to see you at that
hour.

In the meantime, I desire to correct some erroneous impressions
which you seem to have derived from my note of the 22d on the subject.
of the Aves Island claim.

In transmitting to you a copy of my dispatch to Mr. Eames of the
31st October last, and at the same time informing you that there was
nothing in the recent communication of Mr. Gutierrez which rendered
it desirable, in the opinion of the President, to reopen the discussion
of the question of the liability of Venezuela in the case referred to,
I supposed that on that point there was no danger that the position of
this government could be misunderstood; yet you seem to have reached
the conclusion that I desired’ still further to discuss that branch of the
subject in our contemplated interview before coming to a definite judg-
ment concerning it. It is right to inform you that this conclusion is
directly the reverse of that which I intended to convey, and that the
only question connected with the Aves case which this government
regards as now open for consideration is one of detail with respect to
the character and amount of the indemnity which the claimants in the
Aves case ought to receive from Venezuela.

In expressing the hope, as I did in my note of the 22d instant, that
your powers would be found sufficient to enable you to arrange for an
adjustment of these details either at Washington or Caraccas, it was
iar from my intention to intimate any desire on my part to ‘‘ transfer
the question’ from Caraccas to Washington. On the contrary, if you
found yourself authorized to proceed to this adjustment, I hoped to be
able to satisfy you that it might be most conveniently accomplished at
Caraccas, where the evidence in the case has been already presented,
and where an agent representing the claimants has recently gone with
the purpose of rendering any aid, in his power towards accomplishing
such an adjustment.

T avail myself, &c.,

LEWIS CASS.

Sefior M. pr Briceno, &c.

Mr. Briceno to Mr. Cass.

[Translation.]

SpecIAL Legation oF VENEZUELA IN THE UNITED STATES,
Washington, February 27, 1858.
_ Most Excetrent Str: It is important to the government of Vene-
zuela that its accredited envoy extraordinary and minister plenipoten-
tiary at this capital should answer promptly the estimable note of
your excellency of yesterday’s date, received to-day, in which, after

Ex. Doc. 10 25

386 AVES ISLAND.

offering the undersigned an interview on Monday, if he should deem
it convenient, he is informed that the only question relative to the
case of the Island of Aves which the government of the United
States considers open is one of detail in regard to the character and
amount of the indemnity that the claimants are to receive; that this
conclusion is exactly the reverse of the erroneous one which the under-
signed inferred from your excellency’s note of the 24th, supposing a
disposition in the chief of the State to hear the envoy extraordinary
of the negotiation before finally determining on the value of the de-
fense; and that, in your excellency’s expressing, in your note of the
22d, a hope that the powers of the minister of Venezuela would au-
thorize him to arrange those details, it was not your intention to
intimate any wish that the question should be transferred from Carac-
cas to Washington, but that, on the contrary, you expected, in that
case, to conyince him of the propriety of having the settlement effected
at Caraccas, where the proof has been offered, and where an agent of
the reclamation now is for the purpose of lending any assistance which
may conduce to such an end.

_ In the name of his government, the undersigned replies as follows:

He is obliged to accept the explanations which represent as errone-
ous the conclusion which has been spoken of, but, in making this ac-
knowledgment, the undersigned may be permitted to set forth the
facts and circumstances which relieve him from the obligation of
atonement for having adopted a forced or arbitrary inference.

He knew that Mr. Eames, who initiated the discussion on the 20th
of December, 1856, closed it three months afterwards by fulminating
against the government of Venezuela the serious and in every respect
unfounded charge of protracting it since March, 1855. He knew that
your excellency’s government entertained the same mistaken opinion,
from your note of the 11th of September last, in which it assumed the
right of refusing to Venezuela the right which every sovereign State
possesses of opposing reasons with reasons, proofs with proofs, and,
in fine, of presenting her title to the sovereignty of the Island of Aves.
He has read, finally, in your excellency’s note of the 22d, that the
note of Senor Gutierrez of the 31st, of last year, a long justification
of Venezuela in the matter, had not succeeded in changing the opinion
of the President in regard to the point of responsibility, or as respects
the propriety of renewing the discussion; but in the same document
he has read the words: ‘‘ Nevertheless, before replying to the commu-
pee of Senor Gutierrez, it will be very satisfactory to me to see
you,’ &c.

Even supposing that the cabinet at Washington adbered strongly
to its system of laying down as unquestionable the cardinal point of
the controversy, without waiting for the reasons from the opposite
side, as, it would seem, ought to be expected from equity and from
treaty, still it was natural to believe, in view of the words quoted
verbatim, that the President of the United States, after Venezuela's
special mission, would be found disposed to hear the undersigned be-
fore definitively determining on the value of the defense. The follow-
ing circumstances necessarily concurred in the support of so rational
an interpretation:

AVES ISLAND. 387

ist. The minister of Venezuela, in his speech of audience, an-
nounced the determination of his government to conduct the negotia-
tion in this capital, and signified his hope that its solution would be
in conformity to the principles of justice. 2d. The President replied
substantially that the envoy would find the best disposition, if, as was
to be believed, he came here animated with the spirit of justice for the
necessary settlement. 3d. The Secretary of State, on the 11th of
January, acknowledges the reception from the undersigned of the last .
note of Senor Gutierrez, and offers to consider it as soon as it should
be translated. 4th. The consideration that, as it only needed, accord-
ing to your excellency’s system of government, to fix the amount of
the indemnity, the special mission of Venezuela was entirely without
immediate object, and no investigation having been made, either as to
the amount of the alleged injuries and damages embraced in the
reclamation, there was lacking a basis of negotiation in regard to this
point, and such a consideration is so much the more huge as the gov-
ernment of Venezuela does not know this day whether, in case it de-
clares itself responsible for the compensation abstractedly demanded,
the agent, who, according to your excellency, is in Caraccas, unites
all the representations of the damage, or whether there are others, as
he is induced to believe is the case from the additional motion of Mr.
Wilson, made in the Senate on the 18th of the expiring month.

As will be perceived, the interpretation to which allusion has been
made was not a forced but a very logical one. Moreover, it was alto-
gether compatible with the most exaggerated claims of the interested
" parties protected by your excellency’s government, since nothing would
be lost even in time, if, as is to be expected, they should present a basis
for the settlement of the damages, in their own fashion, within the
short period that the audience of the envoy extraordinary might take.
The practical utility of a contrary course is: not comprehended, nor
that of attaching importance to the false imputations which the secret
agents of the reclamation are propagating through the American press,
attributing sinister intentions to the executive authority of Venezuela
in appointing a special plenipotentiary for the affair —imputations
which, by the way, it is to be hoped, are not made by your excellency’s
circumspect government, although it overlooks the honorable prece-
dents of the statesmen who are attacked.

So powerful aré the reasons that sustain the interpretation which
has been referred to, that now the undersigned, satisfied as he is that
‘the government of the United States has not, and cannot have, any
wish or interest to refuse to Venezuela even the means of declaring
herself honorably responsible for the damages claimed, if justice de-
mands it, expects, from the impartiality and rectitude of the cabinet
in Washington, a change of procedure in deference to the very claim-
ants who are protected. The minister of Venezuela-calls the respect-
able attention of your excellency to this matter, which is, in truth,
serious.

The employment of force, which can only be supposed in the affair
through the unavoidable necessity of considering it under all its
aspects, would assuredly secure no more favorable nor more prompt

388 AVES ISLAND.

results than the conciliatory means by which nations are in the habit
of terminating their disagreements.

For your own interest, “therefore, even if other high reasons of pol-
icy, which cannot be hidden from the wisdom of your excellency’s
government, were worth nothing, it would seem to be not improper to
expect from it the road of negotiation in this capital.

The Republic of Venezuela, for its part, 1s not disposed to accept
from any nation, however powerful it may be, the humiliating law of
silence, especially when it concerns a right so sacred and illimitable
as is that of defense.

Neither can the government of Venezuela, even if it should prove
to be responsible, come to an understanding with the present minister
resident of the United States at Caraccas, absolutely incapacitated from
continuing the discussion of the question, whether from the hostile
attitude which he suddenly assumed on his demand not being satisfied
within the term, which he permitted himself to fix, of three months ©
from the beginning of the discussion ; whether from the moral certainty
_as to the extremes to which he wished to go last year; or whether, in
fine, from having then exceeded all the limits of moderation and of
respect, causing grave imputations to rest on the military officers of the
country, and what is more, saying, in one of his notes, that the gov-
ernment of Venezuela had ordered a robbery.

All the reasons set forth make it plain that it is in the well under-
stood interests of both nations to start, continue, and conclude the
negotiation entirely in Washington, maintaining intact the unity of
action on the reclamation, and if it is desirable to divide, doing so in
due time, without impairing the rights which Venezuela enjoys as an
equal with the United States in general society.

To oppose so rational and expeditious a course, the government of
your excellency would only plant itself upon an asser tion which Vene-
zuela denies.

Your excellency lays it down as certain that the reclamation was
presented in March, 1855; and the government of Venezuela asserts,
on its part, that such presentation did not take place until the 20th of
December, 1856. It is a question of fact.

Although yesterday’s note, which is replied to, is absolutely silent
as to this incident, of much importance in the present controversy, the
undersigned will not therefore venture to infer that the government
of the United States is not willing to hear the subscribing 3 minister in
regard to this subject. It has been said to be of much “moment, be-
cause, 1f it is true that the act of presenting the reclamation took
place at the date fixed by Venezuela, the determination which closed
the discussion at three months from its commencement would be with-
out foundation, and there would then be no plausible reason to refuse
the full discussion of the affair at this capital.

The orders which the undersigned envoy extraordinary and minister
plenipotentiary has received from his government, are so positive and
so formal, that they place him under the necessity of soliciting from
your excellency the favor of an answer to these two questions:

First. Is the negotiation of the island of Aves fixed (taken at or
not at this capital?

AVES ISLAND. 389

Second. If it is so fixed, (taken up,) will your excellency’s govern-
ment refuse to hear the envoy of Venezuela on the charge of procras-
tination, which has been made against the cabinet of Caraccas?

As on Wednesday there will be an opportunity for Laguayra, at
Philadelphia, and as your excellency has been pleased to submit the
interview to the convenience of the undersigned, he may be permitted
to request it at one, of the afternoon of Tuesday next, in order that
your excellency, on your part, may have time to consider calmly the
interrogatories, and the undersigned, on his part, to communicate the
result to his government.

With sentiments of respect and of high consideration for your excel-
lency, he subscribes himself,

; M. DE BRICENO.
His Excellency the SecrEetTary oF STATE OF THE UniteD Statss.

Mr. Cass to Mr. Briceno.

DEPARTMENT OF STATE,
Washington, March 4, 1858.

Sir: Your note of the 27th only reached me, in a translation, on
Monday, the Ist instant.

I regret that you were unable to meet me on Monday, and that thus
your interview has been necessarily delayed beyond the day of sailing
of the packet which was about to leave Philadelphia for Laguayra. If
you can conveniently call at the department on Saturday, at 2 o’clock,
I shall be glad to converse with you at that time on the present position
of the ‘‘ Aves’’ case, and to learn how far you are authorized and may
feel yourself at liberty to make arrangements for its complete adjust-
ment.

The intimation contained in your note that ‘“‘the government of
Venezuela, even if it should prove to be responsible, cannot come to an
understanding with the present minister resident of the United States
at Caraccas,’’ has been received with much surprise, because no com-
plaint of his conduct had been communicated to the department by
your government prior to your arrival here, and no request -had been
made for his recall. If he is thought to occupy ‘“‘a hostile attitude”
towards Venezuela, only because he has expressed in decided terms the
view entertained by this government of the transactions upon which
the claimants in the ‘‘ Aves’’ case found their demand for indemnity,
such a belief is as manifestly unjust as it would be for this government
to impute a ‘‘hostile attitude’’ to the minister of Venezuela in conse-
quence of the very strong and decided terms in which he has felt it his
duty to protest against the policy adopted by the United States on this
same subject. If, however, in his intercourse with your government,

-Mr. Hames has exceeded ‘‘the limits of moderation and respect,’’ either
with reference to the ‘‘Aves’’ case or any other, which has been a
subject of discussion at Caraccas, he has certainly failed, in so doing,
to represent the disposition of the President, and his conduct, in this
respect, would be deeply regretted by his government. It is my duty

390 AVES ISLAND.

to add, in justice to Mr. Eames, that from his correspondence in the
‘‘Aves’’ case, which has been transmitted to this department, I have.
not observed any such evidences of a ‘‘hostile attitude,’’ as from the
intimation contained in your note you evidently suppose to exist; and
I trust, therefore, that a full inquiry on the subject may satisfy both
Venezuela and this government that his motives and conduct in the
discussion of the ‘‘Aves’’ case have been wholly misapprehended. With
reference, however, to the question whether the final adjustment of the
case shall be arranged at Caraccas or Washington, I shall be glad to
converse with you on Saturday.

On the point of lability, or the right of the claimants to a just
indemnity, this government has no disposition to enter into a new
discussion. Whatever may have been the precise period when, in the
judgment of Venezuela, the subject was first brought to its attention,
and whether the proofs and arguments of the Venezuelan government
had or had not been fully presented at the time when Mr. Eames left
Caraccas in June last, it surely cannot be doubted that they have been -
so presented now. The late communication of Mr. Gutierrez, dated
-3lst October last, contains a most elaborate review of the whole case,
and it would be unjust to that distinguished gentleman not to admit
that it is alike full, ingenious, and able. Yet upon the few points
which must control the subject, it has not changed the views of this
government, as they had been previously expressed to Venezuela.

The question of how much or how little delay has been had in the
negotiation, is obviously a question of only secondary consequence. It
is not to be taken for granted that in every instance of a claim for just
indemnity a certain amount of time must necessarily be occupied before
its acknowledgment or adjustment. There are plain cases where little
delay is needed, and flagrant ones which require prompt reparation.
The present case appears to the President to belong to the latter class,
because, since this government cannot admit any title in Venezuela to
the island in question, it is obliged to regard the summary eviction
from it of the American citizens who were pursuing there a lawful
occupation as a grave violation of their rights, and a wrong done to
the country under whose flag they thought themselves proteeted.

When you inquire, therefore, whether the negotiation on this sub-
ject is fixed at Washington, I have to inform you that, with respect to
that part of it which is now open, I shall be happy to discuss with you
the question whether it shall be closed at Caraccas or here.

On the subject of the delay of the question in Venezuela, I am, also,
quite ready to hear any observations which you may think proper to
make; but I must repeat, that after the case has been fully presented
by that republic, the fact that it was not presented at an earlier period
ought not to prevent in any way its prompt adjustment now.

I avail myself, &c.,
LEWIS CASS.

Sefior Doctor M. Dr Briceno, ce.

AVES ISLAND. 391

Mr. Briceno to Mr. Cass.
[Translation.]

SpectAL Lugation oF VENEZUELA IN THE UNITED STATES,
Washington, March 4, 1858,
The undersigned, envoy extraordinary and minister plenipotentiary
of Venezuela, in acknowledging to his excellency General Cass the re-
ception of his estimable note of to-day, has the honor to make known to ©
him at the same time that’ he reserves to himself to consider its contents
along with the result of the conference, which is appointed for Satur-
day, the 6th instant.
The undersigned reiterates to his excellency General Cass the assur-
ances of his distinguished consideration.
M. DE BRICENO.
His Excellency the SEcRETARY OF STATE OF THE UNITED STATES.

Mr. Briceno to Mr. Cass.
(Translation. ]

SprcraL LEGATION OF VENEZUELA IN THE UNITED STATES,
Washington, March 8, 1858.

The undersigned, envoy extraordinary and minister plenipotentiary
of Venezuela, has the honor to present in writing to his excellency
the Secretary of State of the United States, the substance of all the
observations which he submitted to his upright judgment at the special
audience that he granted him on the 6th instant. He will add on the
occasion some others which are suggested by his excellency’s note of
the 4th instant, to which the undersigned in acknowledging its recep-
tion reserved his reply until after the proposed interview. Both are
summed up in the following memorandum:

Your excellency avers that your government has received with much
surprise the announcement of the inconveniences now felt in order to
exclude Mr. Eames from the negotiation in Caraccas, inasmuch as it
heard nothing in regard to this matter previous to the arrival of the
undersigned in this city. In turn, the undersigned is surprised at your
excellency’s assertion; for Senor Ribas, chargé d’affaires of Venezuela,
had a conference with your excellency in regard to this affair, comply-
ing with the orders which were communicated to him by Senor Guti-
errez in a note of the 28th of August last, and the note of October 31
of last year set forth minutely the complaints against the minister
resident.

Your excellency signifies a belief that a hostile attitude is attributed
to Mr. Hames solely because he expressed himself in decisive terms in
support of the views of his government. The undersigned permits

392 AVES ISLAND.

himself to remember the enumeration of insults which has been made>
in official documents, the most recent of which is the note of this lega-
tion, in which it is stated that Mr. Hames, in one of his communica-
tions, has charged (imputado) Venezuela with having ordered a robbery.
This does not now admit of the investigation which your excellency
has been pleased to suggest in your note of the 4th instant. Vene-
zuela considers herself a judge of her own dignity, and does not doubt
that she would have the right to proceed against Mr. Hames as the
government of the United States did against Mr. Roussin in a less
serious case, if she did not deem it prudent to await the same result
from the upright, benevolent, and conciliatory policy of your excel-
lency’s government.

The government of the United States, in the note and at the audi-
ence which have been mentioned, has defended its present position
imperiously; that is, by laying down as unquestionable truths exactly
all that is controverted—the principal point of responsibility and that
of delay in the discussion. In its opinion, it is evident that the Island -
of Aves has not been legally occupied by Venezuela; and this premise
being established, it easily deduces everything which is adapted to
support its reclamation. In its opinion, the discussion between the
two nations has lasted three years, owing to the fault of Venezuela;
and this premise being established, it easily deduces everything which
is calculated to sustain the party which has set about closing the dis-
cussion, in order to investigate solely what is due the claimants. In
its opinion, the case has been from the beginning clear and indisputa-
ble; and this premise being established, a prompt, summary, and
violent proceeding against the nation which seems to be the aggressor
is justifiable; and consequently it exempts itself from the obligation
to admit middle terms, to which it would be subject by the law of
nations under any other presupposition.

At the audience mentioned the undersigned was able also to defend
imperiously the position of Venezuela, by laying down that it was a
question of nothing less than property the most inviolable, its own
territory, which had been occupied clandestinely and against the will
of its owner by the citizens who are the claimants, and by laying down
that not only is Venezuela assisted by clear and indisputable right in
rejecting the pretentions which they maintain, but in looking upon
their acts on the Island of Aves as a serious insult, which might be
promptly avenged and all compromise refused, in order that toleration
should not bring on many other such acts.. Yet the government of
Venezuela, which is very far from wishing to compromit the great in-
terests of the State in a rash contest, and which anxiously desires to
earn the sympathies of the powerful republic called to protect its weaker
sisters, and to exercise over them the rational and pacific influence that
is derived from the homogeneousness of their institutions, the republic
of Venezuela has, for these reasons, reached the extreme of shutting
its eyes to the offense, in order to devote itself to examining, in an
honorable and candid discussion, the demands of the questioned recla-
mation.

On this account the undersigned, at the audience mentioned, de-
fended the position of .Venezuela, stating that, in the main, her

AVES ISLAND. 393

version was opposite to that of the United States, and that that ver-
sion being established as true and unquestionable by the same right
which assisted her opponent, consequences also indestructible flowed
therefrom ; that it was to be observed that the proceeding of the United
States, relative to the incident of closing the discussion before time,
produced two effects of much importance—one, that ‘of exempting their
Secretary of State from the duty of setting forth the reasons for not
attaching any value to the note of October 31 and its documents; and
the other, that of impeding the entrance of the satisfactions which the
undersigned had to bring forward in view of official documents which
the government of Venezuela had hitherto been ignorant of; that the
United States lost nothing by opening the discussion on the principal
point, for the reasons adduced in the note of the undersigned, dated
the 27th ultimo; but that Venezuela did, not only because the pro-
ceeding of the United States in the principal question would authorize
a similar proceeding in the arrangement of damages, if she should
admit her responsibility while cut off from her defense, but because
it was a grave question of honor for her government to be precluded
from a hearing, even supposing that in a final analysis it should be
without justification for denying, as it did deny, that responsibility ;
that when forms involved questions of honor, they are then much
more important than questions of cash; and that the weaker nations
were, the more jealous they ought to be in preserving intact their own
dignity. Finally, the undersigned rejected the harsh position in
which the government of the United States attempted to place him—
a position in which he would only have to consider the formula of how
much; and he concluded by asseverating that he harbored no secret
intention in asking that the principal question should continue to be
discussed at this capital ; but that, far from this, he had well-founded
hopes of arriving by this means to a settlement satisfactory to both
parties much sooner than it could be done by any other course of pro-
cedure.

It is important not to omit, that in the course of the interview of
which he speaks, the undersigned observed to his excellency, General
Cass, that his government at the same time it seemed to make conices-
sion, hypothetically assumed—doubtless without wishing to do so—an
inadmissible superiority, very incompatible, certainly, with the rights
of equality belonging to Venezuela. If Venezuela alleges that she
has not been able to defend herself because the discussion was closed
to her before time, the reply is, that after the note of the 31st of:
October it cannot be doubted that she has alleged all that she had to
allege; so that his excellency’s government does not admit the de-
fense, but only under-values it prima facie, without considering it, °
and without believing itself obliged to say why the royal order is
worth nothing which incorporated the island of Aves in the captain-
generalship of Venezuela. So that, if it permits the undersigned to
speak, and even consents to hear him on the incidental point of delay,
which might, as previously, lead to a fair discussion of the responsi-
bility, it makes known beforehand that it is only through pure form,
and virtually places the minister of Venezuela in the inadmissible
condition of talking, only for talk’s sake.

394 AVES ISLAND.

The government of the undersigned, and the whole nation of Vene-
zuela, can only perceive with great displeasure such extremities. The
Cabinet at Washington has certainly the right to judge and decide in
its own way as to the means to be employed in the settlement of its

-reclamations; but from its very high position, its discretion, its pru-
dence, is to be expected a conscientious regard for that opinion which,
in the last instance, will have cognizance of its acts.

The undersigned avails himself of this occasion to renew to his
excellency, the Secretary of State of the United States, the assurances
of the distinguished consideration of his obedient servant,

M. DE BRICENO.

His Excellency the Srcrerary or State oF THE Unrrep S@aTss.

Mr. Hames to Mr. Cass.

No. 48. ] LEGATION OF THE UNITED STATES.
Caraccas, March 25, 1858.

Sir: With reference to my No. 47, under date of 23d instant, in-
forming the department of the definitive establishment of the new
government in this republic, I have now the honor to transmit inclosed,
in copy and translation, a note of Mr. Urrutia, minister of foreign
relations, addressed to this legation, under date of yesterday, but
received this afternoon, by which I am informed that this government
has withdrawn both of its legations now in Washington, being the
special mission of Senor M. Briceno, minister plenipotentiary of the
republic, charged with the Aves Island negotiation, and the chargéship
d’affaires of the republic intrusted to Sefior Florencio Ribas.

The information of the determination so promptly formed by this
government within the first four days after its establishment, to recall
the special mission of Mr. Briceno, was, when it reached me two days
ago, quite unexpected, and still less could I have anticipated that such
determination would have been so quickly carried into effect. Two
sealed packages, however, addressed respectively to Mr. Briceno, in
Washington, and to Mr. Ribas, in New York, and stated to contain
the letters of recall of those gentlemen, were delivered to me yesterday
with the inclosed note of Mr. Urrutia, and with a request that I would
do this government the favor to let them go forward by the first oppor-
tunity. They will go by the same vessel with this dispatch, which is
announced to sail to-morrow.

The note of Mr. Guiterrez, addressed to me under date of 18th ulti-
mo, and forwarded in copy to the department with my No. 43, under
date of 24th ultimo, gave me the latest information I have as to the
state of the Aves Island negotiation, and led me to infer, as I then
intimated to the department, that it might be at that time proceeding
to a satisfactory conclusion in Washington. It is stated, however,
that dispatches of a late date arrived four or five days ago from Mr.
Briceno. The contents of these may possibly have had some effect in
inducing the course now taken by this government. However this
may be, it is clear from the tenor of Mr. Urrutia’s note, that this gov-

AVES ISLAND. 395

_ ernment is now not only disposed to continue and conclude the nego-
tiation in Caraccas, thus concurring with the view taken on that point
by the department in your No. 58 of 15th December, but that having
ascertained that there are sufficient powers in this legation to settle
the business, it expresses the anticipation that the republic, having
now entered upon an era of reformation in its public policy, may with
greater facility accomplish results favorable to the friendly relations of .
the two countries. I perform no more than my duty in stating to the
department that my intercourse with this government up to the present
time induces me to concur distinctly in that opinion.

Your No. 59, of 22d December last, is the latest dispatch received
from the department, the series to that number being complete.

With the highest respect and consideration, I have the honor to be
your obedient servant,

CHARLES EAMES.
Hon. Lewis Cass,
Secretary of State

P. 8. LI inclose also copy of the inclosure in Mr. Urrutia’s’ note of
24th instant, giving an account of the progress and policy of the rey-
olution. I regret that the great haste in which I am obliged to pre-
' pare and transmit this dispatch leaves me no time to send also a trans-
lation of it. ;

CO. EH.

(Translation. |
Republic of Venezuela.

DEPARTMENT OF ForEIGN RELATIONS,
Caraccas, March 24, 1858.

Str: The minister of foreign relations of Venezuela has the honor
to communicate to the honorable minister resident of the United States
that his excellency the general-in-chief of the liberating army, charged
with the provisional organization of the republic, has been pleased to
withdraw the legations which the republic had in Washington, because
the urgent economy demanded by the present regenerative condition
of the country required that course, and because he believes that, as
the honorable minister of the United States is sufficiently authorized,
there will be no difficulty in continuing in this city the discussion of
the same business which is now being considered by the Cabinet at
Washington in relation to Venezuela.

These have been the only motives of the determination referred to,
which has been in no way the result of a desire to impair the relations
of both countries, which, on the contrary, Venezuela wishes always to
unite more fully, flattering! herself that she may now be able to secure
that result with greater facility, inasmuch as she has entered upon an
era of order and morality, in virtue of the glorious transformation

396 AVES ISLAND.

Just completed, in a few days ; the origin, course, and fortunate develop-
ment of which are described in the circular, a copy of which is now
inclosed to your honor. His excellency hopes that Hon. Mr. Hames
will continue his manifestations of sympathy in favor of the present
order of things, and will endeavor that his government shall regard
it with the benevolence which it deserves.

The undersigned renews to the Hon. Mr. Hames the assurances of
his distinguished consideration.

W. URRUTIA.

Hon. CHARLES EAMES,
Minister Resident of the United States.

Mr. Briceno to Mr. Cass.

[ Translation. ]

Lugation EXTRAORDINARY OF THE UNITED STATES,
Washington, April 7, 1858.

EXcELLeNT Sir: The government of the United States having ab-
ruptly closed the discussion on the Aves Island claim, now maintains
that the responsibility of Venezuela in the premises is unquestionable,
and that all that remains to be done is to ascertain the merit of the
indemnifications demanded.

Such conclusions being denied by the government of Venezuela, it
maintains, on its side, that the discussion of the responsibility is still
pending, and that its right of defense, if it is to be real and effective,
necessarily presupposes in your excellency’s government a moral obli-
gation both of listening to those exceptions, which have not yet been
alleged, and of setting forth the grounds on which it disregards the
reasons adduced in Mr. Gutierrez’s note of the 31st of October ultimo.

By the exhibit of the annexed printed memorandum my government
intends to demonstrate in every light, that it is not for the purpose of
abusing the sacred and imprescriptible right of defense that Venezuela
thus maintains.

Her government, which thus furnishes a singular proof of rectitude
and good faith, hopes that the government of the United States, in
that view, far from persisting in its purpose, will thoroughly examine
the matter in a manner entirely in unison with the close relations of
friendship existing between both countries.

Meanwhile, I tender to your excellency renewed assurances of my
esteem and of my very distinguished consideration.

M. DE BRICENO.

His Excellency General Cass,

Secretary of State.

AVES ISLAND. 397

~

[With Mr. Briceno’s note of April.]

Memoir justijicatory of the conduct of the government of Venezuela on
the Isla de Aves question, presented to his excellency the Secretary of
State of the United States, by the envoy extraordinary and minister
plenipotentiary of Venezuela, Doctor Mariano De Briceno.

STATEMENTS.

1854, June.—About the middle of the year, 1854, two mercantile
firms of Boston, Lang & Delano, and Sampson, Tappan & Shelton,
dispatched vessels for the purpose of discovering guano on desert isl-
ands lying in the Caribbean sea, and taking possession thereof. The
vessels, which sailed clandestinely from Boston on the expedition,
were the John R. Dow and M. H. Comery, the former belonging to
Shelton & Co., and the latter to Lang & Delano. The fact of their
clandestine departure from Boston is clearly proven by the books of
the custom-house at that port. Other vessels sailed afterwards during
the same year from various ports of the United States for Isla de Aves.

1854, July.—James Wheeler, agent of Lang & Delano, invaded Isla
de Aves. <A few hours afterwards, William P. Gibbs, as the agent of
Shelton & Co., also arrived there. The island is situated in 15° 45/
north latitude, and 63° 35’ west longitude from Greenwich, W. 1 SE.
from the French island of Guadaloupe. Its dimensions are about 700
yards in length by 125 in breadth and 12 in height. It is liable to
be overflown by the sea during storms—waterless, and uninhabited.
The filibusters immediately employed themselves in the extraction of
the guano they found there, within the limits they prescribed for their
respective operations.

1854, December 12.—The government of Venezuela, on being in-
formed of the invasion of the island, dispatched thither a national
armed schooner, under the command of Colonel Dias, which arrived
at its destination on the evening of the above date. He met there
three vessels at anchor, ready to take cargoes of guano on board, one
of 800 tons, and another of 600 tons. The crew of the Venezuelan
armed schooner consisted of 27 men; her armament of 27 muskets, one
four-pounder, with a suitable quantity of munitions of war. The fili-
busters at Isla de Aves were 80 in number, armed with 50 pair of pis-
tols carrying ounce balls, about 40 muskets, boarding pikes and hatch-
ets, two six and eight pounders with a proportionate quantity of balls,
and about two quintals of powder.

1854, December 13.—Colonel Dias being in the peaceful occupation
of the islands, ascertained from the said filibusters that they were «
engaged in clandestinely exporting the guano from Isla de Aves, and
other uninhabited islands belonging to Venezuela.

1854, December 13.—At the request of the filibusters, Colonel Dias,
as commissioner of Venezuela, gives permission at the island for three
American vessels to complete their cargoes without molestation from
any of the West India cruisers. By this permit, which was signed
by Colonel Dias and the two agents, Nathan P. Gibbs for Shelton &

8 AVES ISLAND.

Co., and Charles H. Lang, for Lang & Delano, the filibusters were
allowed not only to complete the loading of the three vessels with the
guano, but to continue the further exportation thereof until the arrival
of the legitimate contractors of the Venezuelan government, on the
following conditions, viz: first, that the latter should approve thereof ;
second, that the two Boston agents should furnish certain supplies
required by the Venezuelan garrison; and third, that they should place
\the whole of their armaments under the orders of the authority of
Venezula, and under its flag; all which was accordingly done to the
satisfaction of all the parties, except the government at Caraccas,
which disavowed the transaction.

1854, December 21.—The government of Venezuela at Caraccas,
makes a concession for fifteen years to Mr. Wallace, a citizen of the
United States, of all the guano on Isla de Aves, and of the other
islands of the republic, in consideration of certain cash payments

which the contractor obligated himself to make by means of drafts .

which he drew in favor of the government.

1854, December 30.—By order of the agent of the Venezuelan gov-
ernment the filibusters peaceably left Isla de Aves, laden with all the
guano they had shipped, without avowing the least intention of mak-
ing the international claim which they afterwards interposed.

1855, January 15.—Shelton and associates make application to the
government of the United States, soliciting its intervention to be in-
demnified by Venezuela not only for the losses they alleged to have
suffered by reason of their expulsion, but likewise for the ulterior
profits they expected to realize from the further exportation of the
guano.

1855, March.—Mr. Hames, minister resident of the United States
in Caraccas, obtains privately the copy of a document filed in the office
of the secretary of state of Venezuela, in which the agents of Shelton
and his associates acknowledged, when on the island, the sovereignty
of Venezuela over the same. Mr. Hames, who was not aware of the
existence of such a document, brings it to the knowledge of his goy-
ernment, and thereby retards the formal presentation of the claim
until the time hereinafter mentioned.

1855, April 30.—Mr. Wallace assigns his contract to a mercantile
firm composed of American citizens, under the title of the ‘‘ Guano
Company of Philadelphia,’’ which obtained an act of incorporation
from the legislature of Pennsylvania of the above date.

1855, May 22.—The drafts having been protested for non-accept-
ance, the Wallace contract was annulled by the government of Vene-
zuela.

_ _ 1855, June and August.—In these months Shelton & Co. take the

declarations of their agents, and other persons, with the object of sus-
taining their projected reclamation on account of their having been
expelled from Isla de Aves.

1855, July 28.—Decree of the president of Venezuela opening to
foreign commerce the exportation of guano from Isla de Aves, and the
other islands of the republic.

1855, August.—_In this month the American filibusters returned to
export guano clandestinely from the desert islands on the coast of

=D Ane Oia lee SES tense 7 OED LE + —

AVES ISLAND. : 399

Venezuela. During this and the following months were detected. at
Los Monjes, the American bark Corwin; at the island of Pie, the
American schooner White Swan, and at Los Hermanos, another
American schooner that left eighty bags of guano in its flight.

1855, September 2.—The American Guano Company, of Philadel-
phia, on being apprised of the canceling of the Wallace contract,
solicits the protection of the government of the United States, and
obtains it, to compel Venezuela to sustain them as the assignees of the
Wallace contract; John Pickrell was, in consequence, dispatched as
its agent, in the American schooner White Swan, which arrived at
Isla de Aves on the above mentioned date. As was naturally to be
expected, she was prohibited from loading with guano; he then entered
a protest, making the actual costs amount to $50,000, and the contin-
gent damages to $500,000. :

1855, September.—Arrival of Pickrell at Caraccas. Sustained by
the legation of the United States, he demands the restoration of the
Wallace contract, the principal object of which was the working of th
guano on the Isla de Aves. .

1855, September 24.—Date of the memorandum of the conference
with the president of Venezuela, signed by Mr. Hames, minister resi-
dent of the United States in Caraccas, which shows, Ist, the impor-
tance attached by the American legation to the Pickrell claim; 2d, the
first written mention of the other claim of Shelton, which he contem-
plated establishing by reason of the dispossession of American citizens
at Isla de Aves; and 3d, of Mr. Hames declining the discussion of the
two conflicting claims at the same time.

1855, September 29.—The government of Venezuela, out of its regard
for the public peace, renews in favor of the Philadelphia company the
Wallace contract, with certain modifications in regard to the price of
the guano to be exported.

1856, 2Méarch.—Netherland vessels of war arrive at Laguayra with
an ultimatum, demanding the recognition of the Dutch right to the
isla de Ayes, and the withdrawal of troops stationed there. Mr.
Hames, on being made officially informed, at his own request, of the
matter, addressed a note, on the 8th of March, to the secretary of for-
eign relations of Venezuela, opposing the Dutch. demand for the sur-
render of the island, partly on account of the claim which it was his
intention to make in regard to that island in favor of the Americans
who had first discovered guano thereon, and also in behalf of the rights
conferred on Pickrell in respect thereto.

1856, April and May.—During these months, Shelton & Co., take
the last extrajudicial declarations, before a notary in New York, to
invalidate the permit of December 13.

1856, December 20.—The minister of the United States addresses the
government of Venezuela, his first official note, holding it responsible
for the occupation of Isla de Aves, and demanding indemnity in favor
of citizens of the United States expelled therefrom, without stating
who they were.

1857, February 27.—The government of Venezuela repels the claim
in a judicious note.

400 AVES ISLAND.

1857, March 31.—Mr. Hames insists, in an official communication
notable for its length.

1857, April.—The President of Venezuela submits the matter to the
consideration of the government council.

1857, May.—The government council orders that proof be taken to
refute the assertion of Shelton that his agent had signed the permit of
December 13, by means of fraud and violence. |

1857, May 29.—The legation of the United States addresses a note
to the government of Venezuela, charging it with undue delay in
acknowledging the justice of the indemnity demanded, and alleging
that such delay was calculated to place in imminent peril the friendly
relations between the two countries !

1857, June.—The proof ordered by the government council was com-
pleted. Mr. Hames was invited to be present at the taking of the tes-
timony, but declined attending.

1857, June 11.—Mr. Hames, having the permission of his govern-
ment to return to the United States, makes a formal demand for his —
passports as the result of the pending question.

1857, June 12.—The government of Venezuela sends Mr. Eames his
passports, informing him that the substantiation of the pending claim
was not yet concluded. It added, that both cabinets would come to a
direct understanding on the subject in the event of there being no min-
ister of the United States in Caraccas.

1857, August 5.—Convention between Venezuela and Holland, sub-
mitting the question of Isla de Aves to arbitration.

1857, October.—Mr. Hames returns to Caraccas. The government
of Venezuela victoriously refutes the claim in a note of the 31st of the
same month, remits the negotiation to Washington, and sends a special
minister plenipotentiary to this capital.

Argument.

Such are the facts connected with the Isla de Aves question, all of
which are most clearly proved by official acts.

Among these facts there stands one which constitutes the actual
state of the controversy now pending between Venezuela and the Uni-
ted States, namely: ‘

The prohibition to export guano from Isla de Aves, imposed by
Venezuela on American citizens, who occupied it in December, 1854.

The two contending parties agree upon this point, but differ in its
qualification. The government of the United States look upon it as
an act of violent encroachment upon rightful property. Venezuela
denies this qualification. It is, therefore, a case in which rhetoric and
law have jointly, and from the most remote antiquity, consecrated the
principle that :

‘¢ Tt lies upon the accuser to approve what the other denies. In this
case, the state of the cause is taken from the indictment. ’’

Otherwise the advantages of the aggressor would become far greater.
Filibusters, for instance, could take possession of any uninhabited

AVES ISLAND. 401

island, any desert territory never trodden by human foot, of which
there is so much in Spanish America. This island or territory has an
owner ; but filibusters consider it as a derelict domain. They invade
and establish dominion over it. The rightful possessor thereof repels
the aggressor, who, in his turn, assumes the character of the party
aggrieved, and with that arrogance which always accompanies bold
injustice, exclaims: ‘‘ This island, this territory, is not yours ; what-
ever you may aver to the contrary, I disregard ; you must produce the
proofs, for the simple reason that I choose to constitute myself both
judge and party in this matter.’’? Common sense suffices to show how
untenable such a supposition would be.

If the claimants, the Secretary of State, Mr. Marcy, and the minis-
ter resident at Caraceas, Mr. Hames, have alleged that the proof on
the question appertains to Venezuela, it is because they have supposed
as unquestionable the identical matter in controversy; that is to say,
‘that Isla de Aves, up to July, 1854, had no owner; for, being unin-
habitable, it was never taken possession of by any government.’’ So
true it is that such a proposition has only proceeded from mere suppo-
sition, that Mr. Marcy, without sufficient knowledge of the case, and
on the claim being presented to his department, decides upon the ques-
tion, in January 24, 1855, in these terms:

‘¢ Aves Islands have been known probably more than three hundred
years, but have ever been regarded uninhabitable and valueless. No
nation has deemed them of sufficient importance to be reduced to pos-
session. As we understand the case, Aves Islands were not embraced
within the sovereignty of any power, but were derelict.’’ (Official note
from Mr. Marcy to Mr. Hames. Documents respecting Aves Islands
referred to the Committee of Foreign Relations of the Senate, Jan-
uary 20, 1857.)

It would have been natural to expect that Mr. Marcy, in view alone
of the unquestionable fact of the discovery of Isla de Aves three centu-
ries ago, had deduced and recognized its occupation by some govern-
ment, and abstained from officially countenancing the claim introduced
by Shelton and his associates. He would thus have respected the
principle in virtue of which Spain, about the year 1679, expelled from
the desert islands of Providence those Englishmen who had unlawfully
occupied it; the same principle which the United States invoked in
favor of the Or egon question with Great Britain, and the very identical
principle which Mr. Dobbin, a colleague of Mr. Marcy during Mr.
Pierce’s administration, left untouched in his instructions of October
20, 1855, which, in relation to an uninhabited island in the Pacific
ocean said to have been discovered by an American citizen, he (Mr.
Dobbin) gave to Commodore Mervine, directing him to abstain from
occupying it, and to confine himself to acquiring information, should
he find that island had been discovered by other people.

Notwithstanding such valuable precedents, Mr. Marcy overlooked
the fact of previous discovery when the subject of Isla de Aves was
brought up; and not only did he overlook that fact, but even allowed
himself to suppose that it remained abandoned and without an owner,

Ex. Doc. 10

402 AVES ISLAND.

at the time of transmitting the claim of Shelton and his associates to
the United States legation at Caraccas.

Mr. Eames replies, however, ‘‘that the island had always been con-
sidered by all governments as derelict, is, perhaps, not quite so certain,’’
and he proved it by the pretensions which Holland was about inter-
posing thereto. (Note from Mr. Hames to Mr. Marcy, Caraccas, April
26, 1855—document aforesaid.)

But afterwards this doubt was removed from the mind of Mr. Eames,,.
establishing, as unquestionable, a controvertible spoliation in order to
deduce therefrom the liability of Venezuela, notwithstanding the addi-
tional strong reasons he had for such doubt, arising out of the formal
claim presented by Holland.

From the above premises, it clearly results that Venezuela is not
bound to furnish the proofs. Nevertheless she has already adduced
them, because she has justice on her side, and loses nothing thereby.

The complete justification of Venezuela results from the following
propositions, all of which are set forth in the note of the Hon. Jacinto ©
Gutierrez, Secretary of Foreign Affairs, dated October 31, 1857, to
which reference is made in this memoir, the object of which is to fur-
nish a condensed statement of the arguments in said document, and to
present some additional ones of importance:

Ist. Isla de Aves was discovered and taken possession of by Spain.

2d. Isla de Aves was incorporated under the captain generalship of
Venezuela at the time of her emancipation from Spain, and is, there-
fore, at the present day an integral portion of the republic of Vene-
zuela.

3d. Even if Isla de Aves did not belong to the republic of Venezuela,
it could not be regarded as derelict in July, 1854, since Holland still
persists in asserting her claim, however unjustly, to the ownership
thereof.

Ath. Supposing that Isla de Aves was derelict in July, 1854, which
is the ground taken by the claimants, Venezuela as a nation should,
in competition with private citizens, be considered the rightful occu-
paut according to international law.

5th. The government of the United States itself recognized the
sovereignty of Venezuela over Isla de Aves when, in September, 1855,
it interposed an energetic demand in favor of the Pickreil claim.

6th. Venezuela has in no manner whatsoever incurred any respon-
sibility towards the United States by her prohibition to export guano
from Isla de Aves, imposed on American citizens who, in 1854, had
occupied it.

PROPOSITION FIRST.

Isla de Aves was the property of Spain.—The history of discoveries
shows that Spanish navigators visited all that group called the Wind-
ward Islands, extending from St. Domingo in a semi-circular direction
to the coast of Guayana, in Venezuela, as well as all others of the littoral
of that republic. The very name of Isla de Aves plainly shows the
nation which discovered it in the ocean.

The Compilation of Indies contains a law prescribing the formalities

AVES ISLAND. 403

by which Spanish discoverers were to be governed in taking possession |
of territories in America. It runs thus: ‘‘We command chiefs, cap-
tains, and any other persons who may discover any island or main
land, on landing thereon, to take possession thereof in our name, per-
forming such acts as may be deemed expedient, and authenticating the
same in a public form and manner to serve as testimony. (Law 11,
tit. 2d§ book 4th of Compilation of Indies.)

In-1526 ali the Windward Islands, among which Isla de Aves is
included, and those on the coast of Terra Firma, were comprised,
together with the dependency of Venezuela, in the jurisdiction of the
Audiencia of St. Domingo. (See Law 2d, tit. 15th, book 11th of Com-
pilation of Indies.)

In said compilation we read the regulations of subsequent date which
the Spanish government dictated for the navigation and commerce of
the Windward Islands. They are acts of jurisdiction, showing indu-
bitably that Spain did possess Isla de Aves until the early part of this
century, when it became the property of Venezuela, as will be seen in
the sequel.

It is, therefore, evident, in respect to an uninhabitable island, that
the possession in dispute could not have been material, but, as it is
termed in law, civil, in habitu, which consists in holding the thing
habitually or mentally, just such a possession as the various nations
of Europe and America, and even Venezuela, still maintain of other
uninhabitable islands in the Caribbean sea, Los Monjes, Los Hermanos,
&c., figuring among them.

By no possible logical argumentation can it be asserted that Spain,
as it pleased Mr. Marcy to suppose, ever renounced the right of pos-
session during the period of her sway, on the plea of Isla de Aves being
uninhabitable or worthless at that time. If these conditions were
necessary for the retaining of possession, no nation could rest secure in
relation to such islands as are unsusceptible of material occupation.
This is the reason why the law of nations has consecrated the doctrine
“that, when there are in any State desert and uncultivated places, no
one is authorized to take possession thereof without the consent of the
sovereign. Although not in actual use of such places, he is, notwith-
standing, the possessor; it is his interest to preserve them, and he is
not accountable to any person for the manner in which he makes use
of the property.’’

Moreover, the same Compilation of Indies precludes all doubt upon
this point, granting there was any: Thé Emperor Charles V. and his
successor, by various express royal acts, on declaring themselves lords
of the West Indian Islands and continents already discovered, and in
the way of discovery, dictated the following: ‘‘And considering the
faithfulness of our subjects, and the hardships endured by the discoy-
erers and settlers in the discovering and settling thereof, we do, in
order to their greater certainty of and confidence in those lands always
remaining united to our royal crown, promise and pledge our faith and
royal word, for us and the kings, our successors, never to alienate nor
separate them, neither their cities nor towns, for any cause or reason, or
in favor of any person; and, if we or our successors should make any
donation or transfer in defiance of the above, the same to stand null,

404 AVES ISLAND.

and so we declare it.’’ (Law Ist, tit. Ist, book 3d of Compilation of
Indies, still in force.)

If such strong foundations were lost sight of by a distinguished
statesman, which is excusable in the hasty proceedings for the sub-
stantiation of a claim, it is to be hoped they will bring irresistible
conviction to the just administration now ruling in the United Btelip,
where the question must be finally decided.

It then appears as absolutely untenable that Spain has ever spook
neously and tacitly renounced the possession of, or has she alienated
Isla de Aves, without those previous express acts in virtue of which
she has from imperious political circumstances, given up some of her
American colonies.

It has already been proved that Spain did possess Isla de Aves up
to the time when it became the property of the Venezuelan nation, for
the reasons manifested in the following—

PROPOSITION SECOND.

Isla de Aves the property of Venezuela as succeeding to the rights of
Spain.—With pain indeed does Venezuela disinter from dusty archives
her title of property over Isla de Aves, in order to free herself from the
indemnity demanded by fillibusterism repelled from a territory where
the rightful owner has but exercised acts of sovereignty, for which no
accountability i is incurred if better title is not produced.

The representative of the United States at Caraccas, Mr. Bawa in
an official note of 31st March, 1856, has acknowledged the following:

‘All of the territory of these continental governments formed orig-
inally part of the jurisdiction of the government of St. Domingo, and
were successively excinded out of it. But besides that vast continen-
tal territory, the government of St. Domingo, as appears in the
‘Leyes de Indias,’ published at Madrid in 1786, lib. 11, tit. 15, com-
prehended also all the Windward Islands, as we have seen the Aves
in question is found, and this group of islands was never taken out of
the jurisdiction by Spain, or assioned to the jurisdiction of any of her
continental governments, and least of all to Venezuela, which was at
first a dependency of the vice royalty of New Granada, and so con-
tinued till 1751.”’

It is therefore acknowledged that Isla de Aves was never taken out
of the jurisdiction of Spain. Although the adverb never is a surplus
word, for the reason further on to be explained, it is important how-
ever to remark that Mr. Eames agrees to Isla de Aves having never
been abandoned, and consequently he has thus left the claim without
even the ground upon which he thought to be able to establish it.
Nor is this the only contradiction incurred by Mr. Eames; but they
cannot be pointed out, as it is not the purpose of this memoir to enter
into any other expositions than such as directly and substantially
relate to the question.

Mr. Hames, we have seen, agrees that Isla de Aves was owned by
Spain, but does not admit her “having been assigned to the captain-
generalship of Venezuela. The contrary is proved in this manner.

In 1526 all the Windward Islands (Aves included) and those of

AVES ISLAND. 405

Costa Firme, were assigned to the district of the Audiencia de Santo
Domingo. (L. 2 tit. 15 lib. 11, Comp. Ind., already mentioned.)

In 1751 the captain-generalship of Caraccas, or Venezuela, was
established, and here is the authentic document showing how the
Windward Islands (Aves included) were assigned to the Audiencia of
Caraccas. Mr. Eames has overlooked or been ignorant of such an
official act.

The royal decree, dated June 13, 1786, creating the Audiencia of
Caraccas, runs as follows:

‘¢ * * * Jn order to avoid the prejudices which are originated
to the inhabitants of the province of Maracaibo, also to that of Cu-
mana, Guayana, Margarita, and Trinidad, (a Windward Island,)
comprised in the captain-generalship of Caraccas, from having to recur
for appeal in their affairs to the Pretorial Audiencia of St. Domingo,
the king hath resolved to create another one in Caraccas, composed,
for the present, of one senior judge, three auditors, and one fiscal,
leaving an equal number of judges in that of St. Domingo, and limit-
ing their district to that-of the Spanish portion of that island, Cuba,
and Puerto Rico, to which end his majesty doth from henceforth ap-
point such judges as will serve in both islands.’’

If, therefore, it is unquestionable that in 1786 the Windward
Islands—Aves included—were attached to the Audiencia of St. Do-
mingo, it should also be clear of all doubt, that since the 13th of June
of the same year, they were excluded from said Audiencia, to be
assigned to that of Caraccas.

The royal decree of 1786—the right of Venezuela to Isla de Aves—
stands of irresistible conviction, from the peculiar circumstance that
this islet is found among a group of important islands, named alto-
gether the Windward Islands. Without this circumstance, it had
been impossible to fix the series of their jurisdictional allottings.

If an analogous question should in future arise in relation to the
desert islands in the littoral of Venezuela, the inquiry would prove
more difficult, because not being embraced within a common import-
ant denomination, their trifling value has been the cause that no men-
tion of them has been made in any law of territorial decision, either in
Colombia or Venezuela; so that, officially, it is not known to which
province of the republic they belong. However, no one doubts by
what nation they are possessed.

But it will be said that those islands are contiguous to the littoral
of Venezuela, and that the one in question is so far off that Colonel
Codazzi omitted assigning it to the republic in those maps which he
got up by order of the government.

When the property of anything is proved by legal instruments, it
matters not how far it is situated. If it is true, as is doubtless the
fact, that Isla de Aves was incorporated into the captain-generalship
of Caraccas, the question is then at an end.

The legitimacy of Venezuela’s right is corroborated by the fact that
the only nation which, by reason of proximity, could have claimed
Isla de Aves, is France, by alleging that on the invasion of Guada-
loupe in 1635, she also meant to take possession of it—and yet France
has not undertaken such a pretension—which, let it be said in pass-

406 | AVES ISLAND.

ing, would be less strange than that of the American citizens, who
ground it upon the untenable assertion of the abandonment of the
islet in question. ;

The omission of Colonel Codazzi is no proof at all. True it is, that
his labors were the result of the special commission intrusted to him
by the legislative power, who remunerated his services in an appro-
priate manner.

Howbeit, it does not follow that his work is strictly official, and
much less that it has been approved of as every way perfect and exact
by the government of Venezuela.

It would indeed be exceedingly strange to lay aside that documental
proof which clears off the pending controversy, in order to make it
dependent upon the insignificant and unforeseen accident of the imper-
ceptible point of an islet, at that time worthless in all respects, being
omitted in some maps.

We have it then that Isla de Aves, being included in the captain-
generalship of Venezuela at the time of the emancipation from Spain,
became an integral part of Colombia. This republic being dissolved
in 1830, Venezuela constituted herself into an independent nation,
comprising all the territory of the aforesaid captain-generalship. It
was so declared by her fundamental constitution and in the treaty of
peace and recognition between Venezuela and H. C. M., who, in article
second, ‘‘ recognizes the republic of Venezuela as a free, sovereign,
and independent nation, composed of the provinces and territories
expressed in her constitution and other subsequent laws, and also of
any other territories or islands to which she may be entitled.”

<

PROPOSITION THIRD.

Isla de Aves never abandoned, derelict.—In order to overthrow the
specious grounds of the claim in all the branches of its argumentation,
let it be supposed for a moment that Venezuela did not succeed Spain
in her rights over Isla de Aves. The conclusion that the islet was not
under possession in July, 1854, is not thus the more logical nor
legitimate.

Hence, it is not possible to imagine there is in the Carribean Sea,
already so well known and explored, a foot of land unoccupied by
some nation.

Isla de Aves, then, if not the property of Venezuela, should belong
to Spain, as has been shown in proposition first. But Spain has not
claimed Isla de Aves as her own, nor has France nor England claimed
it as annexed to any of their respective colonies. Does it follow, then,
that it stood abandoned at the time mentioned? No; because, sup-
posing that to be the case, there would yet be an opening for the pre-
tensions of Holland with regard to the island.

It would not be consistent with the wisdom which distinguishes the
government of the United States in its administration, nor with the
principles of justice which guide its conduct, independent of the inde-
structible proofs of rightful property presented by Venezuela, to give
more importance to the mere allegations of two or three American
citizens, who, for the sake of speculation, maintain the abandonment

AVES ISLAND. AQT

of Isla de Aves, than to the assertion of two sovereign nations, who,
although differing about the property, both agree upon the substantial
point that Isla de Aves has never been derelict.

PROPOSITION FOURTH.

Isla de Aves derelict, Venezuela the first occupant.—In order to carry
the gracious concessions to their ultimate expression, let it be supposed.
that Isla de Aves were absolutely abandoned—in a condition to receive
primary occupation.

Even on this false supposition, the citizens of the United States who
made their way into Isla de Aves in 1854 could not be deemed the
proprietors of said island.

The United States legation has in no manner whatever demanded
the island for the nation. She has never maintained that it is their
property—the reasom why she has not insisted upon its evacuation
and delivery. She solely and exclusively demands pecuniary indem-
nification. What title does she invoke? Merely previous occupation
by American citizens.

Well, then, on the supposition assumed, it is undeniable that the
occupation by Venezuela should prevail against that of the American
citizens, and should also produce the legal effects of which the occu-
pation by private individuals is not susceptible, looked upon by inter-
national law as rash and preposterous the moment one man presumes
alone to arrogate to himself an exclusive right over some territory, in
order to constitute himself into a monarch without subjects.

The parties claiming have given proots that they are conscious of
the injury done to their pretensions by that well-received doctrine
when they endeavor to demonstrate the contrary in their ‘‘ Memo-
randa of the case for the State Department,’’ laying down principles
at variance with the rights acquired by nations, and forcing the inter-
pretation of those already recognized in their enlightened practice;
but in the midst of the false doctrine diffused in their document there
always shines through the true one, as, for instance, in the following
passage:

‘‘Discovery by private citizens vests rights inthe United States. It
is entirely immaterial whether such discoverer is a private citizen or
subject or a commissioned officer of a State. The same rights in either
case vest in the State to which he belongs. (Vattel only refers to dis-
coverers furnished with a commission from their sovereign, and this
was the British argument in the Oregon case.’’) .

But the most convincing proof that the claimants did not trust to
the force of their demonstrations is furnished by the bill (ad hoc)
which they submitted to the consideration of Congress with the object
of declaring the rights ‘‘of American citizens who may discover and
occupy derelict guano islands,’’ &c.

The following are presented as foundations:

‘Whereas the rights of the first discoverer of any island, key, or
rock not appertaining to any State by contiguity, unless followed and
perfected by continued possession and actual occupation thereof, be-
comes extinguished, and therefrom, or upon the abandonment of such

408 AVES ISLAND.

possession, subsequent discoverers may take possession of and occupy
such derelict island:

‘¢And whereas, also, such subsequent discovery, possession, and occu-
pation, whether by a commissioned officer of the United States or by
a citizen thereof not in the public service, doth cause to inure to and
vest in the federal government of the United States the plenary right
of sovereignty or eminent domain over and to the same, unless ex-
pressly declined by the Hxecutive or the Congress of the United
States :

‘¢And whereas, also, said discovery and possession and occupation
by such citizen vest in such citizen the right to possess such island,
key, or rock, and exercise the ownership thereof and of all that may
be found thereon exclusively against all States and persons whatsoever
except the government of the United States aforesaid, which has fuil
power to restrain or regulate such exercise, and to limit such exercise
by law:

‘‘And whereas, to allow commissioned officers or others in the
public service of the United States to acquire such individual rights
by such discovery whilst engaged in the fulfillment of their public
duties might be prejudicial to the public interest:

«And whereas, also, in such cases of discovery by private citizens,
they should be protected in their said rights by the federal govern-
ment, therefore, be it enacted,”’ &c.

The conceptions contained in the above clearly show that the pro-
positions contrary to those they involve are those generally received,
and for this reason it was the pretension of the claimants to destroy
them by a legislative act sanctioned expressly for the case.

It is idle to say that such insane principles as those set down in the
clauses of the project could be sanctioned by the Congress of the
Union. They were rejected.

It has been demonstrated that the claimant's clandestine expedition
from the United States, not having discovered Isla de Aves, nor having
taken possession of the same by an express commission from the nation,
could not acquire a title of property worthy of respect by other nations,
and therefore lack the right to any legitimate protection on the part
of the federal government.

PROPOSITION FIFTH.

The government of the United States has recognized the sovereignty
of Venezuela over Isla de Aves.—Nothing more eloquent than the facts
relating to this point, which have been set forth in chronological
order.

It follows, therefore, that the legation of the United States then re-
garded Isla de Aves as the property of Venezuela, so as to ask for the
usufruct thereof in favor of the Wallace assignees, and now looks upon
it as the property of American citizens, in order to support and confirm
the present claim for indemnification.

Such is the delicate, not to say false position in which the govern-
ment of the United States has been placed by the acts of Mr. Hames.

AVES ISLAND. 409

It is worth while to examine how he has attempted to extricate himself
from the dilemma.

It is important to bear in mind that in December, 1854, occurred the
act originating the present controversy, and also that the government
of Venezuela leased the island to Mr. Wallace. The Pickrell claim
originated in September, 1855.

Well, then, Mr. Hames, in his note of March 31, 1857, says to Senor
Gutierrez :

“Both the government of the United States and the undersigned
distinctly and affirmatively refused all manner of sanction to that con-
tract, in so far as it related to the Island of Aves in question; and this
refusal of all such sanction was officially made known to the govern-
ment ‘ot Venezuela by the undersigned in his immediate notification
to the government of Venezuela in the month of March, 1855, of the
claim of these claimants for full indemnification for their unlawful ex-
pulsion in consequence of that contract from the Island of Aves.”’

The first conception in the preceding paragraph seeks to establish
that it belonged to Mr. Hames to sanction the Wallace contract. Such
intervention, indeed, was altogether inconsistent with the nature of
the case from the outset.

As to the immediate notification, the government of Venezuela re-
plied in its note of 31st October ultimo, as follows:

“«Ttis not correct that Mr. Hames has clearly and affirmatively refused
to sanction the contract in so far as it relates to Islade Aves, although
in 1855 he alluded, while in conversation with the secretary of foreign
affairs, Senor Aranda, to the claim which some individuals residing
thereon endeavored to establish.’’

This conversation took place about the latter part of March, 1855,
and the same official note from Mr. Hames to Mr. Marcy, April 26,
1855—+the first upon the subject—goes to show that the aforesaid con-
ference was not intended solely, distinctly, and affirmatively to refuse
the sanction of the Wallace contract, but to acquire data for officially
grounding the Shelton claim.

“‘T had learned most of these facts when, in the last days of last
month, (March,) shortly after the receipt of your instruction, I brought
the matter to the attention of this government. I preferred to do this
first in conversation, for I have heard something to the effect that the
Americans on the island had, upon the arrival of the Venezuelan ves-
sels there, signed a contract, &c.

“‘T therefore, in a personal interview, placed before the Minister of
Foreign Relations as distinctly as possible the main facts of the case, —
as presented in your instruction and the accompanying paper, express-
ing my astonishment at the course pursued by Venezuela, and stating my
expectation that the wrong would be at once recognized and repaired.’’

‘‘In reply the minister at once and very confidently denied that any
wrong had been intended or done, and that any reparation could be
properly claimed. He insisted, &c.’’

‘*T expressed strongly my dissent from his opinion, &c.

‘I told him I was aware of the Wallis (Wallace) contract, and also
aware that Venezuela had inserted a clause plainly showing a conscious-
ness that the island was not hers, by refusing to guaranty the privilege

410 AVES ISLAND.

she conceded. [Mr. Eames seems to forget the pretensions of Holland,
of which he speaks in this same note.] Ladded * * * He rejoined
* * * I said, as we parted, that I very much regretted to find so
wide a difference of opinion between us upon a matter which, as it
stood before me, appeared so serious. But I felt, as I left him, well
assured that, anticipating a discussion in writing, he considered he had
an impregnable case against the claim, and was reserving his fire.

‘‘Soon afterwards, and while I was still seeking to ascertain the
exact nature of admissions which I should have to encounter in prose-
cuting the reclamations of the claimants, there was put into my hand
by a merchant here a paper which purported to be a copy of an agree-
ment entered into and signed at the Island of Aves, &c,’’

After the month of April, 1855, up to September of the same year,
Mr. Hames made no exertion whatever, either verbally or in writing,
about the claim now before the government of Venezuela, as shown by
the following paragraph extracted from the aforesaid note which Mr. |
Eames addressed to Senor Gutierrez, March 31, 1857.

‘‘These two notes of the 24th of September, 1855, (memorandum,)
and of the 8th of March, 1855, (in opposition to the claim of Holland,)
were repeatedly referred to by the undersigned in his note of the 20th
of December last, and such having been from the first, and up to the
present time, the recorded and steadily maintained position of the un-
dersigned and of the government of the United States as to the rights
and claims of the present claimants, &c.’’

It follows, therefore, that during the first seven months elapsed after
the armed occupation of Isla de Aves by Venezuela, Mr. Eames, having
in view the introduction of the Shelton claim, made no kind of reserva-
tion, either verbally or in writing, concerning the Wallace contract.

ie September, 1855, arose ne eae of Pickrell, the agent for the
Wallace assignees. It is now incumbent on the government of Vene-
zuela to show that—

Bes- The American minister on the occasion referred to, did not, as
he has since alleged, except Isla de Aves from the claim which he in-
dorsed, and therefore did acknowledge the sovereignty of Venezuela
over said island.

Mr. Eames has attempted to prove the express exception by the fol-
lowing words of his memorandum, dated September 24, 1855:

“After this preliminary reference, and having previously presented.
to his excellency the agent of the company, the undersigned proceeded
officially to make known to his excellency what he had previously de-
clared to the minister of his excellency’s government, that in rendering
his good offices in aid of the purposes of the agent of the company to
secure their rights as the assignees of the Wallace contract, the under-
signed was emphatically instructed to forbear from saying or doing
anything which could in the slightest degree affect or impair the claim
against the Venezuelan government for full reparation on the part of
those American citizens whom Venezuela had found in the possession
of the Aves Island in December last. The undersigned explained,
therefore, fully and clearly to his excellency that all which he might
say or do in aid of the agent of the company must be understood with
this express reservation: That the Aves claim was a wholly separate

AVES ISLAND. 4\1

matter in no way to be compromised or affected by any arrangement
which might be made in respect to the rights under the Wallace con-
tract, or by any aid which the undersigned might render in bringing
about such an arrangement.”’

Substantially what do these words mean? ‘‘I countenance the Pick-
rell claim, protesting that I do not renounce the right to support after-
wards the Shelton claim.’’ Such protest or reservation, far from except-
ing Isla de Aves, far from making both claims consistent, shows a
deliberate purpose to slight the conflict involved by both, and therefore
does not relieve the government of the United States from the delicate
position in which it has been placed by its exacting, in favor of certain
American citizens, compliance with a contract which presupposes Vene-
zuela as the sovereign over Isla de Aves, and by afterwards refusing to
acknowledge the same sovereignty, in order to demand indemnification
in favor of other American citizens.

Mr. Eames further states in his note of the 31st of March, that the
Pickrell contract ‘‘omitted all mention of the Aves in the article guaran-
tying the usufruct of the guano islands of the republic to the assignees
of that contract, and afterwards, in another article, specified the Aves
apparently with the object of relieving Venezuela from liability to those
assignees, in the event that her possession and use of it, for her own
profit, should in view of this claim, or for any other reason, terminate.’’

This allegation is contra producentem, that is, contrary to what it is
designed to prove. The demonstration is very easy. What really
occurred in the Pickrell contract was, that although Isla de Aves was
not specified in article first, it being comprised in the other guano
islands of the republic, it was, notwithstanding, distinctly mentioned -
in article fifth, in order to relieve Venezuela from any lability to the
Philadelphia company, in the eventual case of a cession in any arrange-
ments with Holland. Mr. Hames alleges that the reservation had in
view not the claim of Holland, but that of Shelton, which he had
then in contemplation. So, then, such forced conjecture involves the
same object as the true cause of the reservation ; it supposes, likewise,
the including of Isla de Aves in the Pickrell contract, and therefore
this admission, through the interference of the American legation,
implies the recognition of Venezuela’s sovereignty over the island.

In order to obviate such a conflict, Mr. Hames, in September, 1855,
had at his command two alternatives equally reasonable, but also
equally unadapted, owing to the peculiar circumstances in which he
found himself with regard to the opposing claimants.

One was, to support the Pickrell claim to the express exclusion of
Isla de Aves.

But Mr. Eames could not act in such a manner, for the powerful
reason that the very nature of the Philadelphia enterprise made the
exception impossible. The fact has been above established, that the
Pickrell protest referred specially to the guano from Isla de Aves. If
Mr. Hames had attempted to except it at the time, Mr. Pickrell would
not have consented to it, because the labors of the company being con-
fined to Isla de Aves, the claim would have proved of no effectual ben-
efit. This is confirmed by the fact of the Philadelphia company having

412 AVES ISLAND.

resumed the exportation of guano from Isla de Aves, as soon as Mr.
Pickrell renewed the Wallace contract.

The other was, to accumulate the two claims, so as afterwards to
dispose of them at the will of the parties with opposing rights.

So it was proposed by his excellency, the President of Venezuela, in
the conference alluded-to in Mr. Hames’s memorandum, 24th Septem-
ber ; but the United States legation refused to adopt the measure.

‘“In reply to a remark from his excellency, expressing his preference
that the claim in regard to the previous occupation of the Aves Island
should, if possible, be disposed of in any arrangement which might be
made with the agent of the company, the undersigned answered, as he
had before answered to his excellency’s minister upon the same point,
that any such disposition of the Aves claim was wholly impossible,
not only by reason of the entirely distinct character of the two sub-
jects, and of the duty of the undersigned to treat them separately, but
also by reason of the fact that the undersigned was not yet fully in.
possession of all the information requisite for the due adjustment of
the Aves claim.’’

What is, however, most strange in the incidental question bearing
upon the fact of Mr. Hames’s excepting or not Isla de Aves in the
Pickrell contract of 29th September, it is that the inclusion is proved
by the confession of Mr. Hames himself in his note of March 8, 1856,
to Senor Gutierrez, opposing the cession of Isla de Aves demanded by
Holland :

‘The undersigned, in this connection, deems it his duty further to
state that he has in his possession a copy of a contract entered into on
the 29th of September last, between the government of Venezuela and
John F. Pickrell, a citizen of the United States, conveying to the
said contractor and his associates certain exclusive privileges in the
guano islands of Venezuela, in which contract the undersigned per-
ceives that the Island of Aves, in question, is specified under certain
conditions and stipulations therein set forth.’’

True it is that Mr. Hames, in the same note, March 8, undoubtedly
pereeiving the force of such confession extorted from him by the truth
of the fact, sought to invalidate it by these words: ‘‘The undersigned,
in view of that reservation, now abstains from giving any manner of
sanction to the insertion of the Aves Island in that contract.’’

But such declaration is of no use when contrasted with a fixed fact.
The whole of the learned world agrees upon this maxim: ‘‘ Protestatio
contra jactum nihil revelat.’’ So that the proof is utterly useless when
the fact protested against cannot be supported under any other head
than that of renunciation. Facts, says Mr. Troplong, must be stronger
than vain words. !

It follows, from what is above set forth in the premises, that Vene-
zuela, as the possessor and owner of Isla de Aves, ceded her usufruct
thereof to the American citizen, Mr. Wallace, in December, 1854;
that the United States legation at Caraccas, whether in March, 1855,
when officially informed of the claim being presented at Washington
by Shelton and associates, or even afterwards, did not transmit to the
government of Venezuela any determination on the part of the Ameri-
can Cabinet, objecting to the lessees of the guano islands of the repub-

AVES ISLAND. ALB

lic to continue in the enjoyment of the benefit of Isla de Aves, because
of its being deemed the property of other American citizens ; and that
far from doing so, this very legation strongly interfered on the Pickrell
question, in order to retain the usufruct of the island for the Wallace
assignees.

The government of Venezuela, relying upon these facts, holds that
her sovereignty over Isla de Aves has been recognized by the govern-
ment of the United States by acts of unequivocal significance, leaving
no room whatsoever for further protest.

PROPOSITION SIXTH.

Irresponsibility of Venezwela.—This is a conclusion which naturally
follows from the facts and reasonings already established. _

First. If Isla de Aves is the property of Venezuela, as has been
proved by strong titles and acts of the complaining government itself,
the American citizens, by invading it in 1854, committed an act of
filibusterism.

The fact of their being even the first to discover guano thereon, did
not vest them with the right to make themselves masters of the acces-
sions, which nobody can deny, belongs to the owner of the territory.

However, they acknowledge the fact of their having been found on
the island in December, with vessels ready to load guano, and of their
having, previous to the above date, already extracted therefrom a con-
siderable quantity of the article. So, then, Venezuela should have
regarded them as pirates taken by surprise, or in flagrante delicto.

Their peaceful expulsion, far from making it an act of violence to
merit indemnification, is one of condescension and kindness which the
United States ought undoubtedly to acknowledge.

- Second. If Isla de Aves is not the property of Venezuela, it must.
needs belong to Holland, who claims it.

The acts exercised thereon by American citizens, do not for this
reason change their character. They are no less filibustering and
piratical, the islet belonging to Venezuela, than they would be were it
the property of Holland. As such, the Venezuelan navy had a right
to expel them from the territory of a friendly nation.

On the supposition alluded to, the claimants have not the least right
to demand indemnification from Venezuela, just as Walker and his
followers could have no right to demand indemnification from Spain if
one of her admirals had assumed the position of Commodore Paulding
in the late events at Punta Arenas.

On the supposition under consideration, Venezuela would have vio-
lated the territory of Holland, and this nation would have been the
one to resent the injury done; but the pirates could not have acquired
‘the right to demand indemnification from Venezuela, for’ the same rea-
son that the United States will never award reparation to the invader
of Nicaragua, notwithstanding its being officially established that a
commander of the national navy violated a foreign territory in order
to succeed in the capturing of the filibusters.

The present administration of the United States government, which
has assumed so strong a position on account of the Paulding-Walker

44 AVES ISLAND.

affair, cannot fail to recognize the identity of the two cases. At least,
it may be so presumed in view of the sound principles professed by the
American press, which sustains the predominant policy of the ruling
administration. We have only to substitute, in the present interna-
tional claim alluded to, the agents of the case, in order to manifest the
justice of Venezuela, sustained by the Committee of Foreign Relations
of the Senate, and by the ‘‘ Washington Union’’ of.January 31.

‘¢¢The South’ is compelled to dissent from both the premises and
the conclusion of the able report of Mr. Mason, of the Senate Committee
of Foreign Relations in the Paulding-Walker case. ‘The South,’
after stating the position of the committee that the affair of the arrest
(expulsion) only concerns the government of the United States and the
government of Nicaragua, (the government of Venezuela and the goy-
ernment of Holland,) exclaims with some enthusiasm: ‘ What! is not
reparation due the individuals who are the victims of an act of legal
violence and unwarrantable usurpation?’ ‘The South’ (the attorney
of the claimants) is sufficiently conversant with the principles of law, ©
to understand that a party detected in the violation of statutes may not
invoke the civil arm of government to put him right. If General
Walker (Shelton party) set on foot a military (filibuster) expedition
against the State of Nicaragua, (the Dutch Isla de Aves,) in contempt
of our laws, it would be a monstrous perversion of well defined legal
practice to yield to his demands of restitution and redress. If the ex-
pedition referred to left our shores illegally, General Walker and his
men in connection therewith, (the invaders of Isla de Aves,) can never
be treated as citizens having the right to claim the protection of the
government. ‘They are tainted with wrong. Nor can we agree with
‘The South’ (attorney of the claimants) that natural sovereignty is
such an unappeasable organ, as to be incapable of determining the
extent of its own wrongs, and of deciding upon the manner of their
redress. If the sovereignty of Nicaragua (Holland) has been violated
by us, (Venezuela,) we insist that Nicaragua (Holland) shall at least
have the right to say how much, if any, she is injured, and what will
satisfy her. We'go so far as to maintain, in opposition to ‘The South,’
that it is clearly the right of any nation to consent to the military oc-
cupation of its soil by another,’’ &c.

Third. Finally, if Isla de Aves was derelict in July, 1854. Venezu-
ela, by occupying it, has not incurred any liability towards the Ameri-
can citizens whom she found there in December of the same year.

International law authorized Venezuela to do so, as has been shown
above.

Besides, the American claimants themselves freely consented to the
occupation by Venezuela, in the following document :

‘‘Domingo Dias, captain of a ship-of-war, and second chief of the
Venezuelan navy, and commissioned by the supreme government of
the republic to watch the desert Antilles that belong to it in the Car-
ribbean sea, has agreed, subject to the approbation of my government,
that Messrs. Charles H. Lang, (agent of the company of Lang and
Delano, of Boston,) and Nathan P. Gibbs, (agent of that of Sampson,
Tappan & P.§. Shelton, also of Boston,) whom I have found extract-
ing guano from this island, may:

AVES ISLAND. 415

‘1. Continue to load the vessels that are actually taking in cargo.

*©2. They may continue to load until the arrival of the company
with whom the government has entered into contracts, or until the
arrival of the approbation or disapprobation of the supreme government.

‘3. And we, Charles H. Lang and Nathan P. Gibbs, engage to lend
the aid that the garrison of the island may require.

‘¢4, And to that effect we place our pieces of artillery and armament
at the orders and under the Venezuelan flag, to which the island be-
longs; and,

*¢5. I, Dias, second chief of the Venezuelan navy, do order the com-
manders of men-of-war cruising in the Antilles, to respect the conces-
sion until the supreme government may dispose otherwise.

NATTA N | Pe GLEBS:
‘““CHARLES H. LANG,
‘“* Agent for Lang & Delano, Boston.
“DOMINGO DIAS.
‘“TsLAND OF Aves, [to windward, |
“¢ December 13, 1854.”’

It now becomes proper to make mention of this incident, which
proves the last assertion. As is already apparent, however favorable
for Venezuela, her government has not required it for the justification
of her conduct in the claim.

The agent for the two Boston houses acknowledged, in the above
quoted document, the legitimacy of Venezuela’s authority over Isla de
Aves. The moment they thought of a lucrative claim upon that
republic, the first thing to which they ought to have called the atten-
tion of their government, if they had actually been wronged, or
deceived, in the act in question, was the existence of the permit of
December 13. So remarkable an incident could not have been over-
looked, through forgetfulness, in a claim the justice of which depended
precisely upon the value that might be attached to that document.

However, it will be seen that Shelton and associates did not think
of the exception of fraud and violence, until the American legation
found itself unexpectedly stopped in its proceedings by the permit of
December 13, 1854.

The claimants laid the case before the government of the United
States, January 15, 1855, without mentioning the incident operating
against them. This is the manner in which it was discovered by Mr.
Eames, and the impression it made on him. The following are para-
graphs from his note to Mr. Marcy, dated at Caraccas, April 26, 1855,
in which he goes on to relate what had occurred after his interview
with the secretary of foreign relations, about the latter part of March,
as has been stated above:

‘*Soon afterwards, and while I was still seeking to ascertain the
exact nature of the admission, which I should have to encounter in
prosecuting the reclamation of the claimants, there was put in my
hands, by a merchant here, a paper which purported to be a copy of
an agreement entered into and signed at the Island of Aves, on the
13th of December last.’” * * * * ‘Upon comparing this paper
with the documents accompanying your instruction, which purported

416 AVES ISLAND.

to invoke your interposition upon a full narration of the very events
in which this paper forms so material a portion, the first inclination of
my mind was either to doubt its genuineness, or the accuracy of the
copy in my hands. I therefore took an early opportunity to have an-
other interview with Mr. Aranda, in which I informed him that I had
what purported to be a copy of one of the papers in the case, which, at
this stage of the business, I wished to compare with the original. He
at once assented, though he could not understand how a copy should
have got out, and at a subsequent day, placed the papers in my hands
for examination. I found the original there, to all appearance an au-
thentic paper, and upon comparison, my copy proved to be exact. I
then asked Mr. Aranda if he was satisfied of the genuineness of the
original, and he rephed that there could not be a doubt of it.

‘*With these facts before me, I find myself unable to resist the con-
viction that the case of the claimants is clothed by this paper with a
character very different from that in which they brought it to your

notice, and upon which your instruction was framed. If the case was”

one of a conflicting claim between the two governments to the eminent
domain of the Aves, this agreement I should consider of no force what-
ever. But the case being a reclamation of private citizens for indem-
nity and restoration, I cannot avoid the conclusion that the claimants
themselves have, by this act of their agents, if left unexplained, greatly
embarrassed their government in its successful prosecution. At all
events, there can be no doubt that the agreement of the claimants is
regarded by the Venezuelan government as an effectual bar to any claim
for indemnity by them or in their behalf. _

“In this state of facts, I deem it proper to refer this new matter in
the case to the department, in order to learn the view which you take
of its bearing upon the further prosecution of the claim. Iam the
more induced to adopt this course because, considering the date of this
agreement, I see no reason to doubt that it was known to the claimants
when they presented their case to you on the 15th of January last, and
I cannot understand what is their justification for not then bringing it
to your attention, with whatever explanation of it might be in their
power. It is proper to add, however, that I have of course made no
admission whatever to this government as to the paper or the operation
of it, and that when I receive your views of it, and of the case as af-
peed by it, I shall be prepared to carry your instructions at once into
effect.’’

When the claimants found themselves overwhelmed by a proof so
decidedly against them, they then conceived the plan of making it
void by launching a gross imputation upon an unblemished and hon-
orable Venezuelan chieftain. They have not dared to deny their own
signatures; they have only endeavored to make believe that force and
fraud were used for the purpose of obtaining their acquiescence.

Force and fraud! Two actions which never go together, because
the nature of each by itself excludes the other. The claimants, how-
ever, maintain that force and fraud intervened in the permit in ques-
tion.

It is important to bear in mind the two versions suggested by the
above mentioned incident.

Se a ee

AVES ISLAND. ALT

The version of the Venezuelan government is:

That Colonel Dias, on the 13th of December, landed in Isla de Aves
without any opposition, either by words or deeds, on the part of the
American citizens there found; that at their request and entreaty the
permit referred to was conceded; and that by various attentions shown
the Venezuelans, did the Americans appear to be pleased and obliged
by the act of compliance of the Venezuelan commissioner.

The claimants’s version, supported by the United States legation at
Caraccas, is:

That they did verbally oppose the occupation of the island by Vene-
zuela; that, in fact, they did not do it, although with a superior force
to that effect, with the view of avoiding extremities; and that the two
agents for the Boston houses signed the document as well to prevent .
the use of force, as because of their ignorance that the permit in Span-
ish contained the recognition of Venezuela’s title over the Isla de Aves.

The party for Shelton and associates has endeavored to prove his
allegation, summoning various witnesses connected with the two Isla
de Aves expeditions, some to declare before a justice of the peace in
Boston, and others before a notary public in New York.

The government of Venezuela has repelled the false allegation by
declarations from the commanders and officers who occupied the island
on the 13th of December, 1854, all of which were taken at the office
of the secretary of war, in the presence of Mr. Sanford, Shelton’s agent,
at Caraccas.

Which of the two versions is the true one? If the contending gov-
ernments recognized one superior judge to weigh the proofs adduced
by both parties, that of Venezuela would unquestionably be sustained
by the following reasons, which, being the principal ones, are drawn
from the whole of the testimony:

There was no fraud, first, because Mr. Lang, one of the two Amer-
ican agents, is very well acquainted with the Spanish language ; sec-
ond, because the permit, before Mr. Gibbs, the other agent, had signed
it, was interpreted for him by Lang himself, and by Commander Co-
tarro, of the Venezuela navy.

There was no violence, first, because the document was signed when
there were but three Venezuelan officers on shore; second, because even
had the whole of the detachment and crew on board the schooner landed,
the numerical superiority on the filibuster’s side made fear impossible,
even in men not so strong and resolute as they represented themselves
in their declarations; and third, because these very invaders them-
selves, although obliged to prove such imaginary violence, have not ven-
tured to mention any act of compulsion, death, wounds, or even blows.

The superior judge, supposed in the case, would have seen, as al-
ready stated, that fraud and violence are actions excluding each other
from their very nature ; that the very counduct of the American sign-
ers, such as is represented by their own declarations, before the act,
_ during the act, and after the act of the permit, compels common sense
to reject the allegation ; and he must finally have seen that the proof,
proceeding from a written document against the signers thereof, is

Hx. Doc. 10———27

418 AVES ISLAND.

always conclusive, since, by their own allegations, no legislation could
invalidate it.

Yet Venezuela and the United States, equally independent, equally

sovereign, do not recognize any superior judge impartially to weigh
the proofs adduced. It belongs, therefore, to their respective govern-
ments to fulfill that delicate function, guided only by principles of
justice.
The government of Venezuela, with a perfect knowledge of the case,
has advanced its views on the question; they are very evident; they
have herein been set forth, and clear it is that it could not be possible
to enunciate them with stronger foundation.

The government of the United States must now, in its turn, express
its opinion. Presided over as it is by a theoretically and practically
just administration, Venezuela has a right to expect from it a disregard
for the alleged exception of fraud and violence, not only in considera-
tion of the reasons already given, but also because in the obtaining of

the testimony presented by the claimants, there have been omitted all

the tutelar formalities to insure credibility of the witnesses, as those
connected with the case have never been brought to trial by judicial
proceedings, nor have in their favor the guarantee of public exami-
nation.

All these guarantees were obtained by the evidence which the goy-
ernment of the United States presented to Great Britain in the recent
question about recruiting ; and yet when Lord Clarendon, in the name
of his government, disregarded it on the ground of not being satisfac-
tory, the Secretary of State, Mr. Marcy, did not arrogate to himself
the right to judge alone, and on his own authority, of the value of the
testimony presented, notwithstanding its having been obtained in a
public formal trial, and corroborated with very important documents ;

but thought himself in duty bound to declare, in his note of 13th of

October, 1855, to the American plenipotentiary in London, that:

‘‘Should her Britannic Majesty’s government see fit to disclose any
specific objection to the mode by which the evidence has been obtained,
or attempt in any other way to impeach it, this government will then
feel called on to vindicate its course, and show its ability to sustain its
charges by evidence to which no just exception can be taken.”’ -

How could, then, the government of Venezuela expect, in the con-
troverted case, that the United States, disregarding such sacred forms,
should deliberately sustain extra-judicial declarations of interested
witnesses, too suspicious to the effect of exacting undue indemnification
from a whole nation? Such a proceeding would present a repugnant
contrast with that required by the ordinary course of the Union and
of all other civilized nations, to condemn a single individual in a trial
involving comparatively insignificant pecuniary interests.

In an international question, therefore, in which much more tran-
scendental interests are concerned, the government of the United States
will require for, the purpose of its conviction, what it is known is
required in weighing the proofs of contradictory testimony; not only
the preponderance of proofs, so that the one against the defendant will
palpably exceed the one in his favor, but the full and satisfactory evi-

eee

AVES ISLAND. 419

dence; that is, such a degree of proof as will leave no reasonable doubt
with regard to truth.

This evidence, thus qualified, is what the claimants have not pre-
‘sented, so as to destroy the value of the permit of December 13, and
consequently, even in the denied admission of Isla de Aves being
deemed derelict, there would be no ground left for the required liability
of Venezuela.

The above statement of the justification of Venezuela would not be
complete did it not further evidence that Mr. Hames had erroneously
informed the cabinet of Washington that the cabinet of Caraccas had
willfully retarded the consideration of this affair, whereas, by the official
acts of both cabinets, quite the contrary is shown.

In March, 1855, Mr. Hames received from Mr. Marcy the first official
note on the subject. In the same month, and in April following, he
procured two interviews with the Secretary of Foreign Relations for
the purpose of obtaining information. Afterwards he had occasion to
mention the intended claim on the Pickrell question, (September,
1855,) and on that of Holland, (March, 1856.) The last declarations
which the claimants tried, when they thought of annulling the permit
of 13th December, were rendered in April, 1856. This last incident
shows that Mr. Hames could not have introduced the claim into the
cabinet of Caraccas before the 20th of December, 1856.

If, as it has been pretended, the claim was presented in the conver-
sation of March, 1855, without any documentary evidence to sustain
it, it is now about three years since it was initiated; but, even in such
an inadmissible case, the discussion could only have taken place on the
20th December, 1856, when Mr. Hames presented his written demand.
All the time, therefore, that the protected citizens required for obtain-
ing their proofs against the permit of the 15th December is attributed
to procrastination on the part of Venezuela.

In one way or the other, the truth is, that the discussion did not
commence until the 20th December, 1856. The government of Vene-
zuela contested the claim, repudiating it in a note of the 27th February,
1857. On the 31st March, Mr. Eames insisted in an extensive note,
accompanied with the.evidence cf the claimants; and, without allowing
time for the examination thereof, arrogated to himself the right of
terminating the discussion, scarcely yet opened between two equal
oe that maintain and cultivate the most friendly relations with each
other.

And what was his subsequent course of procedure? He still persists
in denying to Venezuela the necessary time to collect such evidence in
the case as was required to oppose that presented by Shelton and his
associates. He pays no attention to the official citation served on him
for the taking thereof, pretending, thereby, it may be presumed to put
out of question those facts of fraud and violence which, for the first
time, opposed the permit of December 13th; and, finally, having
obtained permission from his government to return to his country, he
ostentatiously demanded his passports, leaving it to be inferred as the
result of the pending question, and as placing the relations of the two
countries in a state full of perils. .

420 AVES ISLAND.

The government of Venezuela, nevertheless, firm in its purpose to
maintain its dignity, did not abandon its unquestionable right, Al-
though engaged at the time with the sessions of Congress, and occupied
by important public business, it lost no time in collecting the mass of
facts that were necessary to answer directly to the cabinet of Wash-
ington, as was done in its reasonable note of October 31st ultimo, and
to fix the solution of the question at this capital, sending to that effect
the undersigned envoy extraordinary and minister plenipotentiary.

M. DE BRICENO.

Wasuineton Crry, March 1, 1858.

Mr. Sanford to Mr. Cass.

Brevoort House, New York,
April 13, 1858.

Sir: In letters to the department in July and August last, and
repeatedly previously, I urged upon it the importance of having pre-
sented in extenso to the Venezuelan government a statement of the
injuries and damages sustained by the claimants in the Aves case, ©
verified by authenticated copies of all the proofs, depositions, and doc-
uments presented by them, a part of which have been unaccountably
withheld by our minister at Caraccas, and of making a direct demand,
a letter of request, upon Venezuela.

The unworthy and dishonorable quibbling and delays of that goy-
ernment, since that time, must have convinced you of the utter useless-
ness of future correspondence with such people, question of dignity
apart.

The Monagas government has finally had justice done to it; its
profligacy, crimes, and robberies belong to history. While I confi-
dently hope from the respectability of the members of the new goy-
ernment that an era of honesty and justice commences there, I think
it highly important that it should not be given any warrant for making
the excuse of laboring under a misapprehension as to the definitive
views and decision of our government on the subject of the Aves
outrage. r

I have read the pamphlet, recently issued, to the public (in viola-
tion of all diplomatic usage) by Dr. Briceno, special envoy to this
country of the Monagas government. It is of a piece with the lofty
annunciations in the Charleston newspapers, caused to be put in by
himself on arriving in this country, of his rank, and of the objects of
his mission, and teeming with gross misrepresentations of the facts of
the case, and also of similar pronunciamentos of himself and the Mo-
nagas government on this claim, furnished to reporters, and upon
which Mr. Shelton has already addressed the department, and to
whose letter I refer you. With respect to the various issues as to
veracity and honorable conduct made by the Monagas government
directly with Mr. Hames, certainly the claimants have little to do,
except in so far as they may affect their just rights and interests.

AVES ISLAND. 421

They cannot conceive it can prejudice them, especially in view of the
fact, to which they call your attention, that as early as 1855 and 1856,
I, as the representative of these claimants, in formal and separate
communications, addressed as well to the then President and Secretary
of State of the United States, forewarned them that such course would
be taken by the Venezuelan government.

If the accusations of the Venezuelan government be true to the
extent set forth in Dr. Briceno’s pamphlet, in the last report of the
minister of foreign relations of the Monagas government to the Vene-
zuelan Congress, and in the letter of that minister to you, the case
would seem to have but one parallel in the annals of diplomatic his-
tory—that of Lord Clives’s ‘‘ red-paper treaty’’ with Messrs. Jaffier
and Omichund, in the Hast Indies, and which was so universally exe-
crated by the civilized world. I cannot conceive it possible that the
United States will allow its minister to be placed in such disgraceful
position by the Monagas government, without requiring the most ex-
plicit and unexceptionable proofs of their accusations, or-a retraction
and prompt apology. Nor can I conceive it will pass unnoticed the
means adopted to give these accusations publicity. I have felt ashamed
and humiliated as an American citizen that such a publication as that
issued by Dr. Briceno, the special envoy extraordinary and minister
plenipotentiary of a foreign government, should have been made under
the very eaves of the State Department, impugning and soiling the
honor of my country—a pamphlet transmitted to the different govern-
ments of the world, as I have reason to know—sent to every member
of Congress, and sought to be published in leading American newspa-
pers, and that it should pass a single day unrebuked by his peremp-
tory dismissal, as Washington served Genet, and General Taylor
served Poussin, for their impudence.

But with all this the claimants have no interest beyond that of all
other American citizens. If every word said on behalf of the Vene-
zuelan government against Mr. Hames were true, the claimants insist,
as they have from 1855 up to this date, that their rights and interests
should not be compromised by any dereliction of duty on his part. On
the contrary, if, for illustration, we can imagine the facts are as the
Monagas government and Dr. Briceno state, the complicity—for it is
notorious that they had personal and pecuniary interest in the guano
contracts with the Philadelphia company, of members of the Monagas
administration, in the tortious course they impute to Mr. Hames, and
that they now urge the circumstances to screen themselves from the
demands of justice—is as clear as the sun at noon day, and the con-
siderations that the claimants have thus been prejudiced and delayed
for three years by the remissness and improper conduct of the agent
of their government, without any fault of their own, it seems to me
should be an incentive to the more vigorous prosecution of their rights
hereafter by the United States government. The claimants have a
full confidence such would be the case. Years ago the claimants were
reproved by the department for suggesting that such defenses were
anticipated on the part of Venezuela, and the depositions of Captain
Gibbs and the other witnesses at Aves, in 1854, prove that Dias boasted

é

422 AVES ISLAND,

of the combination of powerful and political influence in Venezuela.
and the United States interested in sustaining him.

But with reference to the further conduct of their case, the claim-
ants would again urge upon the department, not merely the propriety,
but the imperative necessity, if anything is expected to be done in this
case, of supplying forthwith one defect (alluded to in Dr. Briceno’s
pamphlet) which exists in it, caused by Mr. Hames’s failure to furnish
the Venezuelan government with the several depositions, documents,
and proofs forwarded to him, duly exemplified for that purpose.
Whether peaceful reprisals are resorted to or not, whilst the 34th
article of the treaty of 1836 is in force, this should have been done.
Venezuela, it is in the opinion of legal counsel, has the right under
the treaty to ask for it, even though our government may decide to
resort to some other mode of redress than reprisals. It is too much
for me to ask of the department to require Mr. Hames by explicit
instructions to forthwith deliver copies to the Venezuelan government .
of every deposition, document, and other proof transmitted to him in
this case, not previously delivered by him in extenso, and to furnish
the department with the proof thereof. With respect to Gibbs’s depo-
sition, it was presented mutilated, and a material part was omitted by
Mr. Eames, the most important and extended deposition of Captain
Wheeler, those of McCabe, Thornell, and others, are still retained in
the archives of the legation—all important and all obtained with
ereat trouble and at no inconsiderable cost.

If Dr. Briceno is sent home simultaneously with such instructions,
and renewal of the peremptory demand for adjustment, which Mr.
Eames has not yet presented to the Venezuelan government, or a letter
of request be sent at the same time to that government direct, as a
letter of request under the law of nations must be, I have some little
hope that by the end of this year matters may approach something
like the ‘‘commencement of the end!’’

I have great confidence in the new government; I know some of the
members of it personally, and they are high-toned, honorable men,
deservedly respected by the country, and as yet unacquainted with
official circumlocution; bnt I think it important that their sense of
justice should be appealed to while it is fresh.

In view of the nearly approaching end of the session of Congress,
and of the extraordinary, unjust, trifling and dishonorable course of
the government of Venezuela in this matter, it appears to me that an
intimation from the Executive to Congress that a law clothing the
former with more plenary powers to enforce justice against that gov-
ernment than some suppose it possesses without such law, would not
fail to be responded to by Congress. Of course no action would be had
under such law if the new government of Venezuela act with more
justice and honor than its predecessors. Of this I have stated that I
had hopes, and would further say that Dr. Briceno was in Venezuela
opposed to the Monagas administration, and being committed as he is
by his pamphlet against the just settlement of this claim, it is possible
that his representations to the new government on his return home
may have an injurious influence.

AVES ISLAND, 4923

I have the honor to be, with great respect, your most obedient ser-
vant
H. 8. SANFORD.
Hon. Lewis Cass,

Secretary of State.

Mr, Briceno to Mr. Cass.
[Translation. ]

LEGATION EXTRAORDINARY OF VENEZUELA TO THE UNITED STATES,
Washington, April 25, 1858.

EXcELLENT S1r: It has come to my notice that the government of the
United States has seen with dissatisfaction that without its previous
knowledge publication has been made of the memorial which | had the
honor to transmit to your excellency with my dispatch of the 17th
instant. \

Under this impression, imbued with the constant desires which ac-
tuate my government to preserve the strictest relations of friendship
with the government of the United States, and moved by sentiments
whose loftiness I trust your excellency will not do less than recognize,
I hasten to declare that it causes me pain that my mode of proceeding
can have given just cause of complaint to the government of your ex-
cellency, for there has not been on my part the slightest intention to
forget for a single instant the courteous demeanor or the respect which
two friendly governments owe to each other.

With sentiments of distinguished consideration, I subscribe myself
your excellency’s obedient servant,

| ‘ M. DE BRICENO.
His Excellency Genprat Cass, cc.

Mr. Cass to Mr. Briceno.

DEPARTMENT OF STATE,
Washington, April 27, 1858.

Srr: I have had the honor to receive your communication of the 25th
instant, in which you express your regret that your conduct in publish-
ing your late memoir concerning the Aves negotiation without the pre-
vious knowledge of this department had given just cause of complaint
to the government of the United States, and your assurance that the
publication was made without the least intention of disregarding the
respect due from the representative of a friendly power to this govern-
ment.

It is quite true that the publication of the memoir in question was
observed by the President with great surprise, but he is relieved from
the necessity of expressing any further opinion upon that proceeding
by the frank explanation and assurance which are contained in your
note.

424 AVES ISLAND.

The undersigned avails himself of this occasion to offer to Mr. de
Briceno a renewed assurance of his very high consideration.
| . LEWIS CASS.
Senor Don Manvuet pz Briceno, éc.

Mr. Cass to Venezuelan Minister of Foreign Relationz.

DEPARTMENT OF STATE,
Washington, May 10, 1858.

Sir: The departure of Mr. de Briceno, late special envoy from the
government of Venezuela, without having accomplished, during his

residence here, any adjustment of the Aves Island reclamation, which —

was understood to be the particular object of his mission, devolves

upon me the duty of communicating to your excellency the reply —

which is due to the note of Sefior Jacinto Gutierrez to this department
of the 31st October last, in respect to that claim.

Notwithstanding the mature consideration given to that note, as
well as to the explanations and statements of Mr. de Briceno, the
result has been only to confirm the views of this government in rela-
tion to the liability of Venezuela to make reparation for the wrongs
our citizens have sustained. Your excellency will receive herewith
copies of the correspondence which has passed between this depart-
ment and Mr. de Briceno, which will inform you of the precise con-
dition of the claim. A list of the inclosures is subjoined.

The case is now, by direction of the President, referred back to the
government of Venezuela, in the expectation that the present enlight-
ened and patriotic administration of that republic will not fail to
codperate in the speedy and harmonious termination of a question
which has already encountered too much delay, and embarrassed too
long the relations of both republics. If the instruction of this depart-
ment to the Minister of the United States in Caraccas of the 31st
August last, a copy of which was placed in the hands of Mr. Briceno,
who doubtless communicated it to his government, has not been

carried into effect, it has been partly because of the hopeful results _

looked for from the special mission of Mr. Briceno, and, since the
change of government, partly from the anticipation entertained of an
early settlement of the case by the existing authorities of Venezuela.

The minister of the United States will be fully instructed to com-
municate with your excellency on this subject, and I repeat the confi-
dent belief of the President that, the question of liability being
admitted, there will be no serious difficulty in arranging the details
of a satisfactory adjustment either at Caraccas or Washington.

T avail myself, &c.,
LEWIS CASS.

His Ex’cy Tue MIrnister For Foreren RELATIONS,
Of the Republic of Venezuela.

]

a ELST ADE IIE SS

AVES ISLAND. 425

Inst of Inclosures.

A.—Mr. Cass to Mr. de Briceno—February 22, 1858.
B.—Mr. Briceno to Mr, Cass—February 24, 1858.
C.—Mr. Cass to Mr. Briceno—February 26, 1858.
D.—Mr. Briceno to Mr. Cass—February 27, 1858.
E.— Mr. Cass to Mr. Briceno—March 4, 1858.
F.—Mr. Briceno to Mr. Cass—March 8, 1858.
G.—Same to same—April 7, 1858.

H.—Same to same—April 25, 1858.

I.—Mr. Cass to Mr. Briceno—April 27, 1858.

Mr. Cass to Mr. Eames.

No. 60.] DEPARTMENT OF STATE,
Washington, May 10, 1858.

Sir: Herewith I transmit an open letter addressed to the minister
of relations of Venezuela, covering copies of the correspondence, which
has passed between the department and Mr. Briceno, the special
minister from Venezuela, in relation to the Aves Island claim of
Shelton and.others, the settlement of which was understood to be the
principal object of Mr. Briceno’s mission.. From these papers, which
you are requested to deliver, you will perceive that no perceptible ad-
vance has been made towards an adjustment of the claim referred to.
In receiving the special minister from Venezuela as an act of courtesy
due to a friendly State, it was far from the expectation of the President
that this government would be invited to proceed to. a discussion of
the Aves Island question ab initio, instead of receiving propositions
for an equitable adjustment of the claims involved, upon the grounds
which for three years the United States have maintained in respect to
the liability of Veneztela to atone for the grievous wrong done to our
citizens and our flag.

It was not without surprise, then, that this government received Mr.
Gutierrez’s note of 31st October last, which elaborately defended Vene-
zuela’s title to the Aves Island, and denied to the claimants any indem-
nification for all their losses and damages.

Due consideration, however, has been given to the arguments and
statements of Mr. Gutierrez, not merely upon their own merits, but .
in the light of the verbal conferences held with Mr. Briceno; but this
renewed consideration of the subject has not, in any degree, modified
the previous views of this government with reference to the Aves claim.
The President perceives no reason for changing a decision which was
only arrived at after sufficient investigation.

426 AVES ISLAND.

You will perceive from the papers transmitted, that before Mr. Bri-
ceno received the notice of his recall, he found it necessary to make an
explanation to the department of his conduct in publishing a memoir
upon the subject of the ‘‘Aves’’ case, which was manifestly a violation
of diplomatic usage, and not in accordance with that respect which is
due to the United States from the representative of a friendly power.
This explanation was received with the greater satisfaction because it
was believed that the course of Mr. Briceno was without authority from
his government, and because it was not desired to do anything which
might embarrass the new administration which had just been organ-
ized in Venezuela. Mr. Briceno accordingly was granted an audience
of leave in the usual manner. :

In reference to the ‘‘ Aves’’ case, which was the chief subject of the
special mission, there are reasons for supposing that the juncture is
not unpropitious to the final and satisfactory removal of it from the
prominence which has necessarily been given to it to the exclusion, in |
a considerable degree, of other interesting matters connected with our
relations with Venezuela. One of these reasons is found in the char-
acter of the administration now controlling that republic; another, and
more weighty one perhaps, is drawn from the intimation conveyed to
you by Mr. Urrutia, in his note of the 24th March, accompanying
your No. 48, that the withdrawal of the Venezuelan legation from the
United States was justified partly by considerations of economy, and
partly because ‘‘ there will be no difficulty in continuing in (Caraccas)
the discussion of the same business which is now being considered by
the cabinet at Washington in relation to Venezuela.’

In communicating the accompanying note to the minister of foreign
relations, you will avail yourself of the opportunity to affirm to the
government of Venezuela the expectation of the President therein
expressed, which it is earnestly hoped may meet with a cordial and
prompt response from the present authorities of that republic. It the
liability of Venezuela be admitted, (as I trust it will,) it is presumed
that no serious difficulty. will be encountered in fixing the amount of
indemnification.

Mr. Sanford, the agent of Messrs. Shelton & Co., has expressed an
earnest wish that all the evidence transmitted to the legation in sup-
port of this claim, should be formally presented to the Venezuelan
government, in order that there may be no question as to the fidelity
with which the str ict letter‘of the thirty-fourth article of the treaty of
1836 with Venezuela has been observed, preliminary to the resort to
the remedy of reprisals contemplated therein. If there has been any
omission in this respect, as to the presentation of the proofs forwarded,
you will forthwith supply it; but, in doing so, you must have it dis-
tinctly understood by the Venezuelan government that the presenta-
tion of these proofs is only made from abundant caution, in order that
there may be no cavil respecting the legality of ulterior measures, if,
unfortunately, it should be found necessary to resort to them for the
purpose of obtaining that justice which has been otherwise sought in
vain.

You are at liberty to retain copies of the accompanying documents
for the files of the legation.

AVES ISLAND. 497

Your dispatches to No. 48 (two of that number) inclusive, have been
received.

Iam, sir, your obedient servant,

. LEWIS CASS.
CHARLES Hames, Esq.,

céc., &c., &e.

Mr. Hames to Mr. Cass.

No. 55. | Lugation oF THE Untrep States,
Caraccas, May 13, 1858.

Sir: With reference to my dispatch, No. 48, under date of 25th
March last, in which I transmitted to the department the note of the
then Minister of Foreign Relations of this government, informing me
of its withdrawal of the special mission of Mr. Briceno, charged with
Aves Island negotiation, and intimating the opinion then, asl informed -
the department, concurred in by me, that this new government having
entered upon an era of reformation in the public policy of this country,
would be ably now with more facility to adjust with this legation that
question and other questions between the two governments in a manner
favorable to the continuance of the good understanding existing be-
tween them. I have the honor now, in confirmation of the views then
expressed by me, to transmit inclosed to the department, in copy and
translation, a note addressed to me under date of yesterday by the new
Minister of Foreign Relations, Mr. Toro.

The last dispatch received by me from the department, in relation
to the Aves Island reclamation, is your No. 58, of 15th December last,
which was crossed by the special mission of Mr. Briceno, who proceeded
to the United States on the 9th of that month. From facts within my
knowledge, I think, in an authentic shape, it would seem that his
mission has not resulted in the satisfactory settlement of the question,
and may have been brought to a close by his own course in the conduct
of it, even before his recall by this government was received in Wash-
ington.

I suppose that instructions on the subject to this legation may be
expected without much delay, and it is my purpose, meantime, to do.
what I prudently can do under the circumstances with this government
to facilitate a prompt and satisfactory conclusion of the business.

With the highest respect and consideration, I have the honor to be
your obedient servant,

CHARLES EAMES.

Hon. Lewis Cass,

Secretary of State.

428 AVES ISLAND.

[Translation. ]
Republic of Venezuela.

DEPARTMENT OF ForEIGN RELATIONS,
Caraccas, May 12, 1858.

The legations of Venezuela in the United States having been with-
drawn by reason of the motives, which care was taken to communicate
to Mr. Hames in the note of the 23d of March, the government has not
ceased to preserve the most friendly sentiments towards that of the
great American republic and its enlightened people, and in the absence
of those organs, it fulfills its desires to cultivate the good understand-
ing between the two countries through the Sefior Minister Resident
whom the undersigned now addresses. Doubtless, the sympathies so
spontaneously manifested by Mr. Eames respecting the marvellous
transformation just witnessed by him, and judged with the sound dis-
crimination which distinguishes him, will have been already commu-
nicated to the American cabinet, and will find there the echo with
which all the friends of liberty and of justice, without distinction of
country, have responded to the noble efforts and rapid triumph of the
holiest of causes. Mr. Eames has been able already to observe and
appreciate the effects of the salutary change which has been accom-
plished for the welfare of the Venezuelan nation, and naturally, also,
in promotion of the relations of friendship, of commerce, and of ideas
which the republic ought and desires to confirm with other nations,
and very especially with those of analogous institutions, and which,
like the United States, by their power, greatness, and prosperity, excite
general emulation.

Therefore, the provisional government being animated by these
favorable dispositions, it is to be hoped that a similar spirit presiding
on both sides in the discussion of the matters now pending between the
two countries, these matters will not be an obstacle capable of oppos-
ing the fulfillment of loyal purposes.

The undersigned renews to Mr. Hames the assurances of his distin-
guished consideration. —

F. TORO.

Hon. CHARLES HiAMES,
Minister Resident of the United States,

Mr. Sanford to Mr. Cass.

Wasuineton, May 22, 1858.

Str: I feel a deep interest, as I have a right to feel, in the success of
the recently established government in the republic of Venezuela, the
result of the overthrow of the infamous Monagas and those combined
with him. I feel such interest because I have confidence in the integ-
rity of those who overthrew Monagas, and who are now in power; and

AVES ISLAND. 429

because, also, I felt personally the injustice and utter want of principle
of Monagas, Giuseppi, Guiterrez & Co.

Recent occurrences, if they be true, as detailed in late publications
in newspapers of New York and elsewhere, seem to me to be of a
character deserving the attention of the federal government of the
United States. I inclose some of these publications, and I feel that I
have aright as an American citizen, having charge, as agent, of im-
portant interests of American citizens in Venezuela, and depending, in
in some degree, upon the action of those in power in that country, to
invoke the attention of the department to the transactions detailed in
these publications.

It cannot be questioned that the law of nations casts around the
representative of a foreign country and his family, and those who are,
bona fide, his suite or domestics, an immunity from arrest, and a like
immunity for his residence from domiciliary or police invasions. Yet
it is a monstrous and unnecessary abuse of such privilege, and a pros-
titution of the wise and beneficent principles of the law of nations, to
allow such residence to be made the sanctuary for political or other
criminals of the country to which such representative is accredited.
These are instances of unquestioned authority to be found in the books
of international law, showing that the most enlightened nations have
maintained and enforced the principle that those attached to a legation,
and even the foreign representative himself, in certain cases of heinous,
flagrant, and atrocious crimes, are themselves not exempt from arrest,
trial, and punishment by the laws of the country in which they are
committed. And it is right; for it is not to be presumed that any
just government, influenced by proper principles of self respect, and
its own dignity and honor, would interpose the egis of embassadorial
privilege to shield such criminal, whatever his rank, if the proof of
his guilt was manifest and notorious.

As to abuse of right of asylums, there are three instances related as
occurring in the years 1745, 1765, and 1770, (see Moser Versuch, iv.,
299, ff. 26-36; Beytrage, iv., 212; Bynkershoeck, F. L., xxi.,) of the
seizure by the Venetian government of fugitives from justice who had
sought asylums at the residence of foreign ministers. One was from
the hotel of the French embassador, who, refusing to give up the
refugees, the Senate sent troops and cannon to storm the house. The
States of Holland have demanded the surrender of a fugitive who had
taken refuge in the house of the English resident. (Bynk., F. L.,
xxi.) The Duke of Ripperden was seized in the house of the English
ambassador at Madrid in 1726. (See Vattel, iv., § 119; Marten’s
Causes Celébres 1, 5 Cause, p. 174.) In 1747, a Swedish merchant
named Springer took refuge in the hotel of the Swedish embassador
at Stockholm, and the embassador, yielding to force, finally gave him
up. (Marten’s Causes Celébres, 1, 10 Cause, p. 326.) Pinheiro Fer-
rera says, (vol. 2, p. 196,) that if the embassador refuse to give up a
fugitive from justice seeking asylum, and force be required to seize
him, the embassador should be sent out of the country, care being
first taken to secure the fugitive.

A case in point, with respect to members of an embassador’s house-
hold, is that of Pantaleon de La, a brother of the. Portuguese embas-

430 AVES ISLAND.

sador to England, who had committed murder in the London exchange,
Cromwell, then lord protector, had him seized at the house of his
brother, and he was tried, condemned, and executed.

The immunity of an embassador is founded upon the principle, that
whilst he is embassador, his acts are presumed to be the acts of his
government, and done under its authority ; and it cannot be possible
that any decent government can be presumed to authorize its function-
aries to perpetrate a felony, or other infamous crime, such as larceny,
rape, murder ; and no one doubts that for conspiracy, aiding and abet-
ting treasonable practices against the government to which he is accred-
ited, such government can proceed, as with other conspirators and
- traitors, against such embassadors. There are numerous cases on this
subject. As to immunities of ministers, the following are recollected:

A celebrated case is that of Baron de Gortz, minister of Charles XII
of Sweden, arrested for conspiracy against England, by the Dutch au-
thorities of the Hague, in 1717, on the demand of England. The
Swedish minister at London was also put under arrest by the English —
government. (Marten’s Causes Celebres, 1, 75.), *Mareville, French
minister at Milan, was executed for murder. (9 Wicque, 1, 847.
Flossan, dip. fran. 1, 364.) An embassador in Portugal, and a Ve-
nitian embassador at Milan, were put to death for adultery. (Bynk.,
F.L. XVIII.) And in our own history, Kosseloff, consul general of
Bussia, was tried and punished for rape.

Applying these principles to the recent occurrences in Venezuela, it
seems to me that the course of the foreign legations there, in seeking
to protect the infamous Monagas and his associates from arrest and
prosecution, and just punishment for their crimes against their country
and its laws, is without parallel in the annals of diplomatic history ;
and if the minister of the United States at Caraccas had not been par-
ticipant in such unexampled course, deserves the notice of the federal
government of the United States, in the exercise of the appropriate
function of every free government as common conservator of the laws
of nations.

The partisan interference of the foreign diplomats at Caraccas in the
domestic political disputes of that country, cannot be justified upon
any sound principles. The laws of nations demand that all interfer-
ence in the local affairs of the country to which a minister is accred-
ited, should be confined to regular diplomatic action for the maintenance
- and protection of the legitimate interest of his own country, (and the
spirit and policy of our neutrality laws are in accordance with this
principle,) and such of his fellow citizens or subjects as may be entitled
to such protection. Itis true, that some governments have not censured
their representatives for interposing the shield of embassadorial immu-
nity, from motives of humanity, for the protection of the weak and
timid against the violence of popular fury, or the rancor of blind and
vindictive persecution; but no case has occurred in which any respect-
able government has sanctioned proceedings like those that have
recently occurred at Caraccas. The present emperor of the French,
and also Napoleon I, have maintained the doctrine that international
comity demanded that a friendly State should not allow the residence
of alien conspirators against its own State within its jurisdiction, and

AVES ISLAND. 431

where they were holding conspiracies against the government to which
they owed allegiance, but should yield them up on the demand of said
government, or subject them to criminal prosecution and punishment
for such conspiracies; and very recently, the British government so
far acquiesced (whatever may have been the influences) as to institute
prosecutions against Bernard, Allsop, and others, concerned in the
Orsini conspiracy and homicides.

But this reference is made merely in illustration of general doctrines,
and it is not supposed that the precise rules allowed to govern in the
case mentioned, or those principles so strongly maintained by the pop-
ular press of Great Britain against these doctrines, and which led to
the overthrow of Lord Palmerston’s ministry, either control or have
any close analogy to a”case of attempted embassadorial immunity of
criminals, whether political or not, within the jurisdiction of the State
where the crime was committed, and the laws of which had been vio-
lated. The cases are radically different, and whilst a liberal govern-
ment may well refuse to grant the extradition of political offenders, or
others, accused of offenses merely malum prohibitum, and not crimes
malum in ve, of which persons are accused who have taken refuge in
their country, by the foreign State, (and such is the policy, and has
been the uniform course of the United States,) yet it is carrying such
doctrine a great deal too far, and further than is warranted by the laws
of nations, to say that whilst they are in the country whose laws they
have infringed, another government shall make itself the arbiter be-
tween the accused and his accusers, disregarding the laws of the coun-
try, and this justified solely upon the excuse of a sympathy for the
unfortunate or overthrown, which may be often false, and is ever vol-
untary and gratuitous.

Now what do we see in the recent occurrences at Caraccas? What
justification, even upon the ground of sympathy, is there for the
course of the foreign legations there? For ten years Monagas and his
family have been in the possession of usurped power, maintained by
force, connected with the most atrocious murders, himself and those
combined with him, mostly his family and connections, by corruptions
and by a series of barefaced pillagings of the public treasury and op-
pressions of the people, have grasped millions of the public money for
their private gain, large sums of which have been sent abroad; and,
in the meantime, though totally disregarding the rights of other na-
tions, their citizens and subjects committing flagrant spoliations upon
them, (in one of which cases, as the department is aware, I am the
agent to obtain redress,) utterly neglecting and withholding all just
teparation, As tothe Aves Island outrage, it is notorious that it
originated in a private speculation, in which the person then occupy-
ing the position of Venezuelan minister of foreign affairs under Mona-
gas, Simon Planas, and other public functionaries in that country,
were parties.

Can such criminals justly claim the sympathy or even the slightest
commiseration, if, at last, their oppressed countrymen, driven to des-
peration by their tyrannous and criminal courses, should arouse them-
selves, shake off the yoke they have borne, and drive their oppressors
from the official power they have prostituted and abused ?

432 AVES ISLAND.

In this case the people were successful in their efforts to establish a
just and honest government. On the 15th day of March Monagas
was constrained to resign. General Castro’s government was organ-
ized, then became, and from that time continued to be, the established
de facto government of the republic of Venezuela. Monagas acqui-
esced in and—though this was not necessary to give rightful authority
to the new government—sanctioned its existence. The established
principle to govern the conduct of the diplomatic representative of the
United States of America in such case, is strongly exemplified in the
memorable instance of the expulsion of Charles X and the accession of
Louis Philippe to the throne of France, by the course of Mr. Rives,
our minister there; and later, by the course of Mr. Rush, in the last
named monarch’s expulsion, and the inauguration of the temporary
French republic; and still later, in the overthrow of the republic and
the inauguration of the present empire, which last incident it was my
fortune to witness as a functionary of our legation there; and upon
being advised of which change, the government of the United States
expressly instructed Mr. Rives to regard the government de facto as
the rightful government.

In the recent case in Venezuela, General Castro having the govern-
ment reins placed in his hands, was not the result of a merely tempo-
rary ebullition of popular feeling. Every foreign representative in
Venezuela was well apprised of the universally extended popular sen-
timent in that country in favor of the overthrow of Monagas and the
organization of a new government. Such was the remarkable una-
nimity of the popular voice on this subject, that the unparalleled
spectacle is exhibited of the revolution being entirely successful, with-
out the necessity of shedding a drop of blood, though large bodies of
armed citizens were engaged in it. Monagas himself and ‘his parti-
sans, cowed under his convictions on this point, yielded up imme-
diately office and power.

After the abnegation by Monagas of his office, made to the Congress
of the republic then in session, and of which resignation the foreign
representatives in Caraccas were apprised, he was escorted by them,
or a portion of them, to the residence of the French chargé d’affaires,
and placed therein as an asylum, with Giuseppi, his son-in-law,
Gutierrez, his minister of foreign relations, and others in a like cate-
gory, and the flags of the different foreign legations, that of the
United States included, hung out from the house to prevent ingress
by the new authorities into it.

Immediately thereafter, General Castro’s government was organized
and established, and recognized by the foreign representatives there
as the government de facto, and subsequently the almost unanimous
voice of the republic hath confirmed its authority.

After it was thus organized, the new government decided that the
public interests and public justice demanded the arrest for trial of the
persons above named for their numerous crimes whilst in power, and
if convicted, that they should be compelled to disgorge their ill-gotten
plunder, a portion of which had also extended over it, as above de-
scribed, the embassadorial immunity, or alleged privilege of asylum.

The publications inclosed, if true, exhibit the ridiculous spectacle

AVES ISLAND. 438:

¢

subsequently occurring of the British flag being spread as a carpet at

the threshold of the French legation, and the British representative,

himself under the protection of a generous ally, the Gallic eagle, daring
the Venezuelan officers of justice to tread upon it to arrest the criminal
with his plunder secreted in the house behind it, at the price of arous-
ing the dread ire of the British lion! Whether this spectacle should
be assigned to the category of farce or tragedy some future dramatist
_of Venezuela may decide.

Now, sir, I think the impartial judgment of every sensible and well
informed man may be safely appealed to for the decision that upon no
principle either of humanity or just philanthropy any of these repre-
sentatives, or all of them together, had any more right to act thus with
reference to Monagas and the others accused with him who are sought
to be brought before the courts of justice of Venezuela for the violation
of their laws, than they would have had to attempt by like means to
shield a murderer, a highwayman, or one who had committed rape,
theft, or arson in Caraccas.

The book upon the laws of nations that would sanction such extent
of the embassadorial immunity has not yet been written. And again:
the excuse preferred for the course of the foreign representatives at
Caraccas, in sheltering Monagas and his associates—that they were
political offenders—(if the principle of the impropriety of such repre-
sentatives interfering in, and meddling with, the local, domestic, and
political disputes of the country to which they are accredited, be re-
spected)—but enhances the degree of their outrage upon Venezuela,
and their violation of the law of nations. But the case does not end
here. If the second publication inclosed to you be true, the still fur-
ther extraordinary and inexcusable course is pursued of the foreign
representatives uniting as a party on one side, and exerting the moral
constraint that it may well be supposed they, professing to act for
powerful States, would exert upon the minister of a newly formed
Venezuelan government, itself comparatively weak and powerless at
that juncture, and constraining him to hold a formal conference and
negotiation with them respecting the disposition of the protected crimi-
nals, and of which conference’ and negotiation a diplomatic protocol
was written before they would consent that the laws of Venezuela should
be executed by the courts of Venezuela upon those owing allegiance to
it, amenable to them for their misdeeds; and more, that they should
then venture to exact a stipulation from him for the Venezuelan gov-
ernment for the benefit of the alleged criminals that they should go
free from the country. It is true, as I have been glad to learn since,
that General Castro and the other members of the government have
disavowed the act and discharged the minister who signed the protocol.

Task you, sir, if Count de Sartiges, Baron de Stoeckl, or Lord Napier .

should receive into their residences at Washington any of the persons
who participated in the tumults at the mayor’s election in this city
some months since, and which resulted in the death or several persons,
or if they attempted to shield a murderer or other felon from the action of
our courts or authorities by an alleged embassadorial immunity of such
residence and the secretion of the criminal therein, whether the gov-

Ex. Doc. 10 28

434 AVES ISLAND.

ernment of the United States would tolerate for a moment such course?
_ IT will go further, and ask if a public officer should violate the sub-
treasury law, and misappropriate public money to his own use, and
thus under such law should become a criminal, and upon dismissal or
resignation of his office should run to the residence of either of the
very respectable diplomats named, whether the flags of Russia, France,
or England, laid in triple folds on the steps of such residence to stop
the ingress of a police office to arrest the criminal, would not be kicked
out of the way or trampled upon by such officer, whichever mode might
be supposed to manifest the most contempt for such presumptious in-
terference? And I confidently ask, whither, in such case, the federal
government would not sustain such officer?

If the position I maintain be not true; if the extravagant preten-
sions of the diplomatic representatives in Venezuela be allowed ; then
I ask, what is there that prevents a foreign minister at Washington,
if he can inveigle an American citizen, male or female into his house,
from holding him or her in perpetual duress and imprisonment there,
in defiance of a writ of habeas corpus? It is no answer to say that a
foreign minister who would thus act would be dismissed znstanter, for,
by the law of nations, even upon such dismissal, whatever the privileges
and immunities that attach to his person and suite continue till he has
had time to return home.

I think that upon a careful review of the circumstances which have
occurred in Venezuela, the President and yourself will be satisfied
that the opinion expressed in the commencement of this communica-
tion of their deserving the pointed notice of the federal government,
will be concurred in; and I trust you will regard the facts I have
stated as to my position and interests and feeling as a full apology
for calling your attention to the subject. The principles with refer-
ence to this alleged right of asylum should be laid down distinctly to
the American representatives abroad, and especially to those accredited
to the Hispano-American republics south of us. In those States the
residences of the foreign representatives, in case of revolution, seem
to have been regarded for many years as a kind of political alsatia for
all the unfortunate political rogues, when they have to give place like
Pharaoh’s fat kine, to lean political kine of the same character. Ido
not mean this last allusion to apply to the new Venezuelan function-
aries, several of whom I know personally, and who are men of unblem-
ished character, but the allusion is just with respect to Mexico and the
States of Central America and others. The laughable idea seems to
have obtained in these States that the house of a foreign minister was
covered with a sanctified halo, like the holy altar of the Temple of
Jerusalem, from the horns of which the criminal could not be wrested—
with the additional privilege, however, of feeding freely at the expense
of the minister while using his house asa sanctuary. All the doors
and windows of the Temple of Janus seem now to be open; war rages
in China, India, Mexico, Peru, Chili, and Europe is a smothered vol-
cano. Ere long the ill-feeling so manifestly existing between England
and France may result in hostilities, which event would cause the still
unquenched fires of revolution on the continent to burst forth with a
violence exceeding any former efforts of the people to change their

> Veep dtewiad-~-a >>

AVES ISLAND. : 435

governments. I need not assay to impress on the government of the
United States the sound policy of the representatives being so in-
structed as to enable them to allow the alleged right of asylum in their
residence, or the protection of the American flag only in proper cases
to be stated by their own government.

With respect to the Hispano-American republics, the effects of such
course would be most salutary. It would tend to make their public
functionaries less unscrupulous as to crime, to which the certainty of
impunity under the present practice is an incentive. It would tend to
make the government more stable and respectable. It would add to
the weight of our representatives in those States, by ridding them of
the reproach of intermeddling and taking sides in the domestic con-
cerns of such States—for there are instances of their having been ac-
cused of plotting with those in power; and instances have occurred,
when a revolutionary party, under the excitement of such belief of
intermeddling, as in the case of Mr. Poinsett, in Mexico, in 1826, have
committed violations of admitted diplomatic immunities, and insulted
the American flag.

‘‘Mind your own business,”’ is Dr. Franklin’s own motto as to indi-
viduals and States. It is especially with respect to diplomats one of
true wisdom and sound policy, and the interests of his country are
never compromitted by sticking to it.

Lest I may be thought to be violating this maxim myself, I would
add, as an additional reason for this communication from a private
citizen, that heretofore while in the service of the government of the
United States, the changes I have witnessed in the political govern-
ments of the countries where I was, produced by revolutionary action,
deeply impressed me with the importance of the subject.

T have the honor to be, with great respect, your most obedient ser-
vant,

H. 8S. SANFORD.

Hon. Lewis Cass, ©

Secretary of State.

Mr. Eames to Mr. Cass.

No. 59. | LEGATION oF THE UNITED STATES,
Caraccas, July 7, 1858.

Sir: I have the honor to acknowledge the receipt on the 11th ultimo
of your dispatch of 10th May last, (which should be numbered 60,) in
relation to the ‘‘Aves”’ Island claim, inclosing an open letter on that
subject of the same date, addressed by the Department of State to the
Department of Foreign Relations of this government, and covering
copies of your correspondence with Sefor~De Briceno.

I have the honor now to transmit to the department further corres-
pondence between this legation and this government in relation to that

436 AVES ISLAND.

claim, being copy of my note to the Minister of Foreign Relations,
under date of 21st ultimo, with copy and translation of his reply, under
date of 1st instant, and copy of my note to him, under date of 3d
instant.

By these papers the department will perceive that your open letter,
with its inclosures, was delivered to the Minister of Foreign Relations
on the 14th ultimo, and accompanied’ by the oral explanations sug-
gested in your instruction, that the claim has been further urged by
me in my note of the 21st ultimo, and that, in his reply of the 1st
instant, the Minister of Foreign Relations, recognizing the propriety
of reparation in the case, has announced the intention of this govern-
ment to conclude an equitable settlement of the claim with the least
possible delay. This result of the protracted controversy on the point
of liability in this case is adverted to in my note to the minister under
date of 3d instant, in a sense of satisfaction in which, I do not doubt,
the department will participate.

By reference to my note of 21st ultimo it will, also, be perceived that
I have transmitted to this government all the papers forwarded to this
legation by the department, with its No. 37, of 14th August, 1856.
This dispatch, as appears by my No. 40, to the department, was first
received by me, in duplicate, on the 23d of October last, after my return
from Washington, and between that time and the reception of your
dispatch of 10th May last, the position and course of the ‘‘ Aves”’
negotiation did not appear to offer me any suitable opportunity for the
presentation of further proofs in the case.

The expressions of Mr. Flerrera in his note to me of Ist instant, in
connection with those used by Messrs. Urrutia and Toro in their notes
to me of 24th March and 12th May last, transmitted respectively with
my Nos. 48 and 55, lead me to the conclusion ,that this government
proposes to adjust the details of the indemnification in the “‘ Aves’’
case with this legation; and taking into consideration your No. 58, of
15th December last, your correspondence with Mr. Briceno and your
dispatch of 10th May last. I suppose such to be, also, the unchanged
view of the department. In, therefore, proceeding with that business,
I shall bear in mind the views of the department as indicated in its
No. 58, of 15th December Tast, and its Nos. 46 and 50, of 3d February
and 3d April, 1857, and their respective inclosures. Deeming it prob-
able, especially from some of the expressions in your No. 58, that a
further communication in regard to the details of the requisite repara-
tion in the case, may be soon addressed to this legation by the depart-
ment, I respectfully invite your attention to the suggestions contained
in the closing paragraph of my No. 22, of October 9, 1856, in my No.
30, of January 7, 1857, and especially to the plan of adjustment indi-
cated at the close of my note of December 20, 1856, to Mr. Gutierrez,
which was transmitted to the department with my No. 30. This gen-
eral idea of a satisfactory method of adjustment in the case was adopted
by me after mature consideration of its equities, and understanding it
to be in substantial conformity with the views of the department, as
hitherto made known to me, I see no reason why it should not be now
regarded as right and convenient.

AVES ISLAND. 437

Your dispatch* of the 10th May last is the latest received.
I have the honor to be, with the highest respect and consideration,

your obedient servant,
CHARLES EAMES.

Hon. Lewis Cass, »
Secretary of State.

LEGATION oF THE UNITED STATES,
Caraccas, June 21, 1858.

Str: The undersigned, minister resident of the United States, has
- had the honor, on the 14th instant, to place in the hands of the hon-
orable minister of foreign relations of Venezuela, an open letter under
date of the 10th ultimo, with specified inclosures, addressed through
this legation, by the Department of State of the United States to the
Department of Foreign Relations of this republic. This important
paper, communicating to the Venezuelan government the failure of its
late envoy extraordinary and minister plenipotentiary, Sefior de Bri-
ceno, to accomplish any adjustment of the ‘‘ Aves’’ Island reclamation,
which was the special object of his mission, and setting forth, in a
renewed and most formal manner, the definitive views adopted by the
government of the United States, after due examination, and by sub-
sequent mature consideration fully confirmed, as to the undoubted
liability of Venezuela to make reparation for the losses and injuries
sustained in that case by citizens of the United States, expresses in
earnest terms the confident hope and expectation of his excellency, the
President of the United States, that the case being thus referred back
to the Venezuelan government, and the undersigned being fully in-
structed to communicate with it on the subject, the present enlightened
and patriotic administration of Venezuela will not fail to cooperate in
the speedy and harmonious termination of the question which has too
long embarrassed the relations of the two republics, and that, the lia-
bility of Venezuela in the case being admitted, there will be no serious
difficulty in arranging the details of a satistactory adjustment.

These views and expectations of the government of the United States,
the undersigned, under his recent instructions, has already had the
honor to affirm and urge upon the attention of the government of this
republic, in personal interviews with its minister of foreign relations,
from whom he has been gratified to understand in reply that the Ven-
ezuelan government, recognizing the high and controlling motives of
public policy, which require at this time the prompt and equitable ad-
justment of this case, proposes now, in that view, to give to it immediate
and continuous consideration.

In this connection, and in compliance with recent instructions from
his government, the undersigned has now the honor to present here-

* Erroneously numbered 58, I have numbered it, as it should be, 60, and request that the
same correction be made on the records of the department to avoid confusion in referring
to it.

438 AVES ISLAND.

with to the government of Venezuela, copies of certain additional tes-
timony and correspondence in this case, as transmitted to this lezation
by the Department of State, in which their originals, furnished by the
claimants, areon file. In presenting, however, these papers, a list of
which is subjoined, the undersigned, in obedience to spegial instruc-
tions to that effect, makes fully known to the government of Venezuela
that the presentation is made only from abundant caution, in order
that there may be no doubt nor dispute that the strict letter of the
thirty-fourth article of the treaty of 1836, and all other legal obliga-
tions have been fully and exactly complied with, both by the claim-
ants and by their government, in view of the contingency, not now, it
is hoped, to be expected, of ulterior measures unfortunately becoming
necessary for the purpose of obtaining, in conformity with law, in this
case, the justice otherwise sought in vain. |

Notwithstanding the several conferences in which the undersigned
has recently had the honor to press orally the present urgent aspect of
this ‘‘ Aves’’ Island reclamation on the consideration of the govern-
ment of Venezuela, he cannot close this note without reiterating to the
honorable minister of foreign relations, and through him to his excel-
lency the Chief of the State, the profound conviction felt by the under-
signed, that in view of the origin, character, and history of this recla-
mation, and especially of the attitude in which it is now presented, the
weightiest considerations of justice and public policy imperatively de-
mand that, without loss of time, the undersigned be authorized to assure
his government that it is received by the new administration in Ven-
ezuela upon the basis of an admitted claim, and that in such character
its details of indemnification shall have consideration and fair and
and equitable adjustment with the least practicable delay.

The undersigned avails himself with pleasure of this first opportu-
nity to offer Hon. Sefor Flerrera, minister of foreign relations, the
assurance of his very distinguished consideration.

CHARLES EAMES.

Hon. Mrcusn FLerrera,

‘Minister of Foreign Relations.

List of accompanying papers.

A.—H. 8. Sanford to Secretary of State—May 9, 1856, with speci-
fied inclosures.

B.—H. §. Sanford to Secretary of State—May 10, 1856, with speci-
fied inclosures.

C.— Deposition (printed) of John McCabe.

D.—H. 8. Sanford to Secretary of State—July 15, 1856.

E.—P.S. Shelton and Sampson & Tappan to Secretary of State—
July 21, 1856.

AVES ISLAND. 439

(Translation. ]
fiepublic of Venezuela.

DEPARTMENT OF FOREIGN RELATIONS,
Caraccas, July 1, 1858.

The undersigned, minister of foreign relations of Venezuela, had
the honor to receive the note and documents addressed to him by the
honorable minister resident of the United States, under date of 21st
ultimo, in relation to the Aves Island question.

Although accidentally and very recently charged with this depart-
ment, the undersigned, by reason of the interest which that subject
deserves from the government, has sedulously endeavored to acquaint
himself with it in all its details by the study of the record, already
voluminous, which has been formed out of what has already taken
place in regard to it up to the present time. Not having been able
yet to accomplish this purpose so completely as he desires, the under-
signed might well defer to another opportunity the consideration of
the matter with Mr. Hames, and this much more, considering that
the provisional character of the government, the dangers now threat-
ening the internal and external peace of the country, the mass of labor
and business rendered necessary by the meeting of the national con-
vention, and all the other difficulties which attend the actual situation,
would abundantly justify such delay. But so favorable is the deposi-
tion of his excellency the Chief of the State towards the North Ameri-
can republic, and so ardent in his.desire that everything should disap-
pear from its relations with Venezuela which could operate to their
prejudice or thwart his purpose of consolidating more and more the
friendship of the two countries, that he has authorized the undersigned
to waive those inconveniences in favor of this consideration. With
this purpose, his excellency has directed the undersigned to make
known.to Mr. Hames his desire to terminate, by an equitable adjust-
ment, the question in relation to the Island of Aves now pending be-
fore the government of Venezuela in the form of a reclamation by the
government of the United States. His excellency flatters himself that
this communication and the further communication that he is ready to
devote his attention to the settlement of the demand as soon as the
pressing occupations of the moment permit him to do so, will be viewed
by Mr. Hames, and also by his government, as indisputable proof of
the spirit which animates the government of Venezuela, and of the
sincerity which it is striving to overcome the obstacles which oppose
the amelioration of its relations with the United States.

The undersigned renews to Mr. Eames the assurance of his distin-
suished consideration.

MIGUEL FLERRERA.

Hon. Minister REsmpeNT oF THE UNITED States.

440 AVES ISLAND.

LEGATION OF THE UNITED Stratus,
Caraccas, July 3, 1858.

Srr: The undersigned, minister resident of the United States, has
had the honor to receive the note, under date of lst instant, of the
honorable minister of foreign relations of Venezuela, making known
the purpose of the Venezuelan government to terminate, by an equit-
able adjustment, the Aves Island reclamation, which has been so long
pending between the two governments, and announcing that his excel-
lency the chief of the republic, in view of his strong desire to main-
tain the most friendly relations with the United States, is prepared to
carry into effect the settlement of that claim as soon as the urgent and
indispensable occupations of present moment can permit.

This determination in relation to the Aves case will be immediately
communicated to the government of the United States, by which the
undersigned does not doubt it will be duly appreciated, not only as a
proof of friendly dispositions, but also as offering, in the promptness
with which it has been reached and manifested by the existing govern-
ment of Venezuela an indication of a wise and: just public policy,
which is in highly satisfactory contrast with the difficulty and delay
so unfortunately encountered under other circumstances in the adjust-
ment of this claim.

As in the concurring judgment of the two governments, nothing
now remains to be done in this case but to examine and regulate the
details of a fair and equitable indemnification to the claimants, and as
this legation is now prepared to proceed with that business, it is hoped
and expected that the reclamation may very soon be definitively ad-
justed in a satisfactory manner.

The undersigned renews to Hon. Mr. Flerrera the assurance of his

distinguished consideration.
CHARLES EAMES.
Hon. Micven FLerrera,
Minister of Foreign Relations.

>.

Mr. Cass to Mr. Sanford.

DEPARTMENT OF STATE,
Washington, July 31, 1858.

Sm: The department received yesterday dispatches from Mr. Hames,
one of which relates to the probable adjustment of the Aves Island
claim at an early day.

An extract from one of these, (7th instant,) and a translation of a
note to which it refers, are herewith inclosed to you, as the representa-
tive of the principal claimants, in order that you may be apprised of
the favorable disposition of the government of Venezuela, and adopt
such measures as the interests of your principals may seem to require.

ee

AVES ISLAND. AA]

As it is understood that the successor of, Mr. Eames will not leave
for his post before the close of the coming month of August, the de-
partment would be pleased to know whether the claimants have any
further statements to make in respect to the final settlement of the
case, and whether they would prefer that Mr. Hames should be in-
structed to proceed to an arrangement or that it should be deferred
until the arrival of Mr. Turpin at Caraccas.

Iam, sir, &c.,
LEWIS CASS.

Henry 8. SanrorD, Hsq., New York.

Mr. Appleton to Mr. Turpin.

No. 3.]| DEPARTMENT OF STATE,
Washington, August 24, 1858.

Sir: The papers herewith furnished you, and those which you will
doubtless find at your legation, will afford you full information as to
the circumstances and present position of the Aves Island case. The
spoliation and outrage at this island occurred in December, 1854, and
from that time to this the government of the United States has steadily
insisted that Venezuela should repair injury to our citizens which had
been done under authority of the Venezuelan government. Proofs
were offered of the extent of this injury, and in the case at least of
Messrs. Shelton & Co., these were as full and explicit as they were
promptly furnished. The 34th article of the treaty between the United
States and Venezuela had thus been complied with, and the way pre-
pared for employing the remedy which that article contemplates. Yet
when the present authorities of Venezuela entered upon their duties, -
the just claim of the United States in behalf of its citizens who had
been injured by the Aves Island outrage, had been neither adjusted
nor acknowledged to exist. This was a condition of affairs which
could not be suffered to continue. It was impossible that the govern-
ment of the United States could permit its flag to be insulted and its:
citizens wronged, as they were insulted and wronged in the case re-
ferred to, without insisting upon reasonable redress, and, if necessary,
pursuing that redress by force. It has not been unmindful, however,
of the difficulties which have existed in Venezuela in respect to its
political affairs, nor of the embarrassments which necessarily sur-
rounded the existing authorities of Venezuela when they were called
to the management of their government. A certain delay was una-
voidable from these considerations, but the United States had great
confidence that the new government of Venezuela would lose no time
in terminating this delay and doing justice to those claimants who
had been so seriously injured by the proceedings of Venezuela, and so
long deprived of their rightful reparation. The dispatch of Mr. Her-
rera, minister of foreign relations, inclosed with that of Mr. Hames of
the 7th ultimo, has a tendency, I am glad to say, to justify this hope.

449, AVES ISLAND.

The department does not find in it, however, that full and unequivo-
cal admission of liability which it had a right to expect; yet from the

friendly assurances of Mr. Herrera, from his declaration that the gov-
ernment of Venezuela desires ‘‘to terminate by an equitable adjust-
ment the question in relation to the Aves now pending’’ before that

government; and, from the testimony of Mr. Hames on the subject,

this government is not disposed to doubt that the dispatch of Mr.

Herrera was intended as a compliance with its previous demand in

dispatch No. 53, and as an acknowledgment of the just liability of
Venezuela to make good the losses which accrued to the American
citizens by their eviction from Aves Island in 1854.

In this view of the case, nothing now remains but to adjust the
question of damages. These were undoubtedly very great, and a full
description of them will be found in your legation, and has doubtless
been furnished to Venezuela. The view taken of them by the Vene-
zuelan authorities is not known, because upon this branch of the
subject no discussion whatever has been had. Upon many of the
items there can be no difference of opinion; and there can be no doubt,
either, of the general rule that Venezuela is bound to repair the injury
which she inflicted. Her admission of lability implies a withdrawal
of her claim to the island and its guano, but the parties cannot be
required now to receive back the island after they have been driven -
away from it and their business destroyed, but are entitled to reason-
able damages for its loss. It is understood, moreover, that a large
quantity of guano has been removed from it since their eviction, and
this department is not informed whether the island is now in possession
by Venezuela, so that its surrender would be possible. If it can be
returned, the parties interested may be willing, possibly, to receive
it, in a spirit of compromise, and thus to reduce the amount of their
claims. Indeed, this has been already stated to the department by
the agent of the principal claimants. You will find inclosed the copy
of a letter from Mr. Sanford to the Secretary of State, dated the 10th
instant, which will put you in possession of his views on this subject.
The claim of P. S. Shelton & Co., as presented in the printed state-
ment now at Caraccas, and supported by a large amount of testimony,
amounts in the aggregate to $650,000.

In view of the present condition of Venezuela, and for the sake of
a speedy adjustment, they offer, as a compromise, to accept for their
entire claim the sum of $150,000, United States currency, with inter-
est at seven per cent., payable at such times as the Venezuelan gov-
ernment may agree with you therefor, to be secured by convention of
the government of Venezuela similar to those negotiated by Mr. Steele,
at Caraccas, on the 8th May, 1852, and Ist June, 1853, relating to
claims—a copy of which you will find in the archives of the legation.
This proceeds upon the condition that Venezuela is to relinquish to
them the possession which they previously had of the island, but with-
out, of course, any guarantee by Venezuela of their rights on the island
as against any other government. This offer is made, you will ob-
serve, in a spirit of compromise; and should it be rejected, it will not
diminish the right of Messrs. Shelton & Co. to insist upon the payment
of their entire claim.

AVES ISLAND. 443

Undoubtedly a compromise would be accepted also by Messrs. Lang
& Delano, the other claimants in the case; and it is hoped that the
department may be able to write you explicitly on this subject by the
next packet to Venezuela. The greater injury seems, from the testi-
mony now before the department, to have been done to Messrs. Shelton
& Co., and hence they have been usually mentioned in the dispatches
as the principal claimants.

You will lose no time, after your official recognition at Caraccas, in
recalling the attention of the Venezuelan government to this Aves
Island claim, in order that it may be promptly adjusted. The govern-
ment of the United States will not allow itself to believe that this
adjustment will be further procrastinated by the government of Vene-
zuela. It is quite time that the case was at an end; and in justice to
itself and its citizens, this government cannot permit it now to be
unnecessarily delayed. You will be frank in stating these views to
the proper authorities at Caraccas, and you will inform them that your
government expects in return an early and explicit reply. It is hoped
that the spirit of compromise which is manifested in the offer of Messrs.
Shelton & Co., will be met by a similar spirit on the part of Vene-
zuela, and that their claim may be thus terminated without further
loss of time. In that event, you will have no difficulty in arranging
. the details of the adjustment in conformity with the plan proposed.

I am, sir, your obedient servant,
JOHN APPLETON,
Acting Secretary of State.
Epwarp A. Turpin, Esq.,
cec., &e., &e.

Inclosures.

“

Aves Island document No. 64.
H. §S. Sanford to Secretary of State, 8th and 10th August, 1858.

Messrs. Cottiing and Lang to Mr. Cass.

Boston, August 31, 1858.

Sir: We have had some conversation with Mr. Sanford, attorney of
P.§. Shelton and Sampson & Tappan, in the ‘‘ Aves Island”’ claim,
who informs us that it is important that the State Department be ad-
vised immediately of our views as to what we would take as a com-
promise of our claim against Venezuela. We therefore say that we
will accept the sum of $50,000, United States currency, as a compro-
mise, to be paid in monthly installments, as may be agreed on with
our minister at ‘‘Caraccas,’’ with 7 (seven) per cent. annual interest
till paid. With respect to the claim of Wheelwright & Cobb, depend-
ent upon us, we will cheefully (at the final settlement) yield such
amount for false freight as you may decide to be just. We have this
day given H. 8. Sanford, Esq., our full power of attorney to act for
us in this matter, and any arrangement he may make will be satisfac-

444 AVES ISLAND.

tory to us; our power of attorney to Henry H. French being revoked,
We will send you in a few days such proofs of the detail of our dam-
age as we may be able to collect.

Mr. Sanford will doubtless inform the department that he has agreed
to give us the benefit of the papers he has filed in behalf of P.S&.
Shelton and Sampson & Tappan.

We are, very respectfully, your obedient servanis,
CHAS. U. COTTING,
Executor.
JOHN H. B. LANG.
Hon. Lewis Cass, :
Secretary of State.

Mr. Cass to Mr. Turpin.

No. 6.] ; DEPARTMENT OF STATE,
Washington, September 3, 1858.

Sir: Herewith I transmit the copy of a letter of the 3lst ultimo,
from the representatives of Lang & Delano, who are claimants against _
Venezuela for their eviction from the Aves Island in 1853, by which
you will learn their willingness to accept fifty thousand dollars
($50,000) as the minimum basis of compromise with that government,
out of which, however, they bind themselves to satisfy the claim of
Wheelwright & Cobb, who, from the first presentation of the subject,
have likewise claimed indemnity.

This arrangement will enable you to present the Aves Island claim
to the government of Venezuela for settlement as an entirety. © It re-
duces the amount of indemnity from over a million of dollars to
$200,000, and it is confidently expected that you will be enabled to
announce, in your earliest communication from Caraccas after receipt
of this dispatch, the final adjustment of the matter upon the terms
proposed. 7

I am, sir, your obedient servant,
LEWIS CASS.
HK. A. Turpin, Esq., -

(Ge okes \acee:

Mr. Sanford to Mr. Cass.

New Yorn, September 8, 1858.

Sir: Since the departure of Mr. Turpin some circumstances have
occurred in relation to the claims of Messrs. Shelton & Co. and
Messrs. Lang & Delano & Co., of which I have advised you in my
letter of 2d instant. Conforming to the earnest desire of the depart-
ment in making which I understood it was influenced by considera-

AVES ISLAND. 445

tions of friendly feeling towards the republic of Venezuela, involved
as it now is in foreign and domestic difficulties, I have striven with
the claimants, as their agent, to reduce their claim to the lowest
possible amount that would reimburse them for their actual losses
sustained in cash, without reference to hypothetical or consequential
damages. Mr. Shelton, desirous to accede to the wishes of the depart-
ment, has consequently, though reluctantly, agreed to compromise the
Shelton claim for one hundred and fifty thousand dollars ($150,000)
and the relinquishment of the Island. The other claimants, Lang &
Delano, for themselves and Wheelwright & Cobb, have agreed upon
the minimum sum of fifty thousand dollars ($50,000) in full of all
their demand for damages, and Shelton & Co. have agreed in conse-
quence to hold them to no liability growing out of their occupation of
the island.

Mr. Turpin, | am informed by your letter of the 4th instant, has
been advised of this arrangement, and instructed accordingly.

I deem it proper, as the attorney of all the claimants, to say that it
seems to me that the liberal course pursued by the claimants in agree-
ing to this compromise submitted to the Venezuelan government
should be presented forcibly to that government by yourself, and that
the sum be indicated as the wltimatum, to be responded to without
further evasion or delay, and as dispensing with the necessity for the
procuring of further or additional proofs.

If accepted, the sum of $200,000 is in solido, without reference to
details, items, or particulars, or relinquishment of the claim to the
Isle, as a compromise merely of the whole claim, and not to be con-
strued as an admission that they do not justly amount to more. If
refused, and the parties are put to the necessity of procuring further
proofs and incurring further expense and trouble, the offer, as stated
when first made, is not to prejudice claimants against the recovery of
whatsoever amounts they may show their just damages, direct and
consequential, to be.

The friendly feelings of the government and of the American people
towards Venezuela, struggling as she 1s with foreign and domestic
difficulties, have, as before stated, had overruling influence in in-
ducing the claimants to agree to this compromise. They desire to
accede to the views of the department, and they trust that it will ap-
preciate their course by urging, as suggested, upon Venezuela to
accede to the proposition so made, with a view to take away any cause
of difficulty between the two governments, and which the State depart-
ment has been so, instrumental in effecting.

I have the honor to be, with great respect, your obedient servant,

H. §. SANFORD,
Attorney for claimants.
Hon, Lewis Cass,
Secreiary of State.

446 | AVES ISLAND.

Mr. Cass to Mr. Turpin.

No. 7.] ) DEPARTMENT OF STATE,
Washington, September 15, 1858.

Sir: I inclose the copy of a letter addressed to the department on the
8th instant by Henry 8. Sanford, Esq., in relation to the Aves Island
claim. Mr. Sanford has presented, with much force, considerations
which should induce Venezuela to accept the basis of compromise offered
by the claimants without further discussion or delay, and he has justly
referred to the earnest wishes of this department that such an arrange-
ment might be made among the claimants as would reduce the amount
of the reclamation to the lowest sum consistent with the simple indem-
nification of absolute losses. This government is not insensible to the
difficulties of a foreign and domestic nature with which Venezuela has
been and is still entangled; and while it has forborne a resort to per-
emptory measures of redress, it has, on the other hand, represented to
the claimants the propriety of large sacrifices, in order to avoid even
the appearance of a want of sympathy for the embarrassed condition
of the republic. They have deferred to this view, and have proposed
a minimum, which Venezuela, weighing all the circumstances of the
case, should cheerfully accept. You will accordingly, in pressing the
claim, signify to the Venezuelan government the anticipations which
we cherish that the adoption of this compromise will speedily remove
any occasion of further dispute or embarrassment in the relations of
the two countries.

I am, sir, your obedient servant,

LEWIS CASS.
EDWARD A. Turpin, Esq., ce.

Mr. Appleton to Mr. Sanford.

DEPARTMENT OF STATE,
Washington, September 27, 1858.

Sir: Although, as you are aware, the department has notified Mr.
Turpin of the compromise which has been effected among the several
claimants against Venezuela in the Aves Island case, and has instructed
him to press an early adjustment of the claim upon the terms indicated
in your letters of the 2d and 8th instant, it is deemed proper to apprise
you, as the legal attorney of Messrs. Lang & Delano that in the con-
tingency of the rejection by Venezuela of the arrangement you have
proposed, there is no such proof in the department of the actual losses
sustained by your principals as would enable it properly to present
their claim to the consideration of the government of Venezuela.

The papers you have filed in support of the claim of Mr. Shelton
and others, the benefit of which by virtue of your agreement with the
other parties they are permitted to enjoy, substantiate the preliminary
facts of discovery, occupation, and eviction, but do not prove the items
of actual loss alleged by Lang & Delano. Should your offer of a settle

Ce ee

5
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7
MI
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7]

AVES ISLAND. ~ 4AT

ment with Venezuela ‘‘in solido’’ be rejected, these proofs will be equally
applicable in establishing the basis of their claim as that of Shelton;
but they cannot supply the deficiency above referred to.

On the 21st June, 1855, Land & Delano filed the affidavit of George
McGeorge, which proves the lading of the brig Comery with guano,
her return to the United States, and the sending out of the ship Ken-
tucky with twenty-one laborers to the Aves Island; and among the
papers filed by you is an affidavit which estimates the value of Lang
& Delano’s buildings and materials on the island. This, it is believed,
is the only specific proof furnished by them or by their agents of their
actual expenses incurred, although in January, 1856, they present the
items of a claim amounting to $647,910.

You will perceive the propriety, in the contingency referred to, of
having these items supported by proofs in those cases which are sus-
ceptible of being so verified.

Lam, sir, &c.,

JOHN APPLETON,
Assistant Secretary.
Henry S. Sanrorp, Esq., New York.

Mr. Turpin to Mr. Cass.

No. 4.] LEGATION OF THE UNITED STATES,
Caraccas, October 23, 1858.

Str: With reference to your dispatches Nos. 3, 6, and 7, with their
respective inclosures, relative to the ‘‘ Aves Island’’ reclamation, I
have now the honor to transmit to the department, in copy, a note on
that subject, addressed by me, in pursuance of your instructions, to the
minister of foreign relations, under date of 17th instant.

The restriction by the claimants of their demand to a simple indem-
nification for their ‘‘actual, positive losses,’’ and the exclusion by the
department of ‘‘ hypothetical and consequential damages,’’ as expressed
in your dispatches and in their inclosures, will, I trust, contribute very
muck to the prompt and equitable settlement of the reclamation by
this government; and deeming this result to be of high importance,
not only to the interests of the claimants, but also to the successful
prosecution of the other business of the legation, so long embarrassed
by the prosecution of this claim, I have striven, in my note to Mr.
Sanojo, so to present the basis of compromise proposed by the claim-
ants as to show in the strongest light its claims toa favorable reception.

Your No. 3 refers to the fact that the amount and mode of indemni-
fication have not yet been at all discussed between the two governments,
and though some of the expressions in your No. 7 may possibly be re-
garded as having a tendency to authorize me to present, as a minimum
or ultimatum, the compromise offered by the claimants, I have thought
it more in conformity with the usual practice in such cases, and with
the probable wishes of the department, to reserve that point in my first
note to this government on the subject, and while recommending

448 * AVES ISLAND.

strongly the proposed basis of adjustment, to hold myself free to obey
your future instructions as to making it an ultimatum. ‘

An inspection of the papers in the case presented to the department
by the claimants, and forwarded to this legation, has confirmed me in
this conclusion.

In a communication to the department, transmitted to this- legation
in dispatch No. 37, under date of February 20, 1856, Messrs. Shelton,
and Sampson & Tappan stated their actual positive losses, exclusive of
the guano on the island, which by the present proposition is to be
relinquished to them, at $28,500; $20,000 of this sum being for false
freights, &c., and $8,500 for fixtures and other property. In their
subsequent communication to the department, by their attorney, Mr.
Sanford, which was transmitted to my predecessor in dispatch No. 46,
under date of February 3, 1857, they raised the amount claimed for
such actual losses to about $50,000, by adding $16,300 to the sum
claimed for false freights, &c., and $6,100 to the sum claimed for fix-
tures, &c. But by inspection of this second statement, the department
will see, I think, that the $16,300 so added, is made up of those hy-
pothetical and consequential damages which are now expressly relin-
quished.

As to the actual losses of Lang & Delano, there isas yet no proof
nor voucher in this legation, and all the information I have on that
subject is derived from the recent communication of Mr. Sanford to the
department, dated August 10th last, and transmitted to me in your
No. 3, which fixes their damages at a maximum of $10,000, and takes
an unfavorable view of their right to recover at all. Similar views
were expressed by Messrs. Shelton & Co., in the paper transmitted
with No. 37, of the Department, to my predecessor ; and these papers
are now, by previous request of the claimants, expressed through the
department, in the hands of this government.

Earnestly solicitous as I am, on every account, to bring this busi-
. ness without delay to a conclusion as favorable as possible to the inter-
ests of the claimants, I have thought it my duty thus respectfully to
lay before the department the doubts and difficulties which embarrass
me, as at present advised, in making an ultimatum of a proposition,
claiming, besides therelinquishment of the island, the sum of $150,000
for Shelton, Sampson & Tappan, and $50,000 for Lang & Delano.

The general impression prevailing here, and referred to in previous
dispatches to the department, as derived from the fact that the ‘‘ Aves’’
was one of the first of the guano islands abandoned as not worth work-
ing, is also, I think the department will perceive, a serious difficulty
to contend with. I trust, however, that the claimants will as soon as
possible, furnish me with the means of counteracting this impression,
or at least of replying to it conclusively, if, as I think it not unlikely,
it shall hereafter be urged by this government as a reason for a further
abatement of their present demand.

I have the honor to be, your obedient servant, .
i E. A. TURPIN.
Hon. Lewis Cass,

Secretary of State.

AVES ISLAND. _ 449

LEGATION oF THE Unrrep Sratzs,
5 Caraccas, October 17, 1858.

Sime: The undersigned, minister resident of the United States, has
the honor, in obedience to the special instructions from his govern-
ment to that effect, now to bring to the renewed attention of the hon-
orable minister of foreign relations, and through him to that of his -
government, the existing urgent attitude of the Aves Island reclama-
tion, with a view to that prompt and final settlement of the claim
which the government of the United States regards as imperatively
necessary.

The note of ist of July last, addressed to the predecessor of the
undersigned in this legation by the then honorable minister of foreign
relations, made known upon rendered reasons ‘‘the determination of *
the government of Venezuela to terminate by means of an equitable
adjustment the question pending in relation to the Aves Island’’ be-
tween the two governments; and added the assurance that ‘‘ the set-
tlement of the claim’’ should, without delay, be the subject of special
and effectual attention.

This prompt and frank acknowledgment by the new government of
the liability and of the purpose of Venezuela equitably to indemnify
the claimants in the Aves case, leaving, as it does, in the concurring
judgments of the two governments, nothing more now to be done in
that case but to adjust the question of the amount and manner of such
equitable indemnification has, the undersigned is prepared to state,
produced a favorable impression upon the government of the United
States, and in consequence of that impression, and taking into view
the serious difficulties with which the government of Venezuela has
for some time past been compelled to struggle, the government of the
United States has made special efforts to facilitate the prompt and final
adjustment of the claim upon principles of equity and in a spirit of
liberal compromise. .

The claim as at present presented before the government of the
United States, belongs to quite a number of different individuals.
The printed statement herewith inclosed shows that three of them—
Messrs. Shelton, Sampson, and Tappan—claim damages to the amount
of $650,000, United States currency, and they specify the items of
their claim. The claims of all the other claimants in the case, as
made known to the government of the United States, raise the total
amount up to $1,000,000. By the efforts of the government of the
United States, made in the motives referred to, these claimants have
been induced to unite all their claims in one entirety, and adopting
the principle of restricting their claims to the actual’ positive losses
inflicted upon them, excluding all hypothetical and consequential dam-
ages, they have, in a spirit of compromise, and as a basis of an
equitable settlement, offered to receive in full satisfaction for their
whole claim the sum of $200,000, United States currency, at such
times of payment and with such interest as may be stipulated between
the two governments. This great reduction by the claimants of their
demand down to one fifth part of its original amount upon the prin-

Ex. Doc. 10 29

ABO. AVES ISLAND.

ciple of restricting their claim to their absolute actual losses only, is
approved by the government of the United States. This basis of com-
promise is offered upon the distinct understanding that the govern-
ment of Venezuela will hereafter make no opposition whatsoever to the
unmolested usufruct by the claimants of the guano on the island of
Aves. And it must be further understood, that if this compromise,
as offered by the claimants, should be rejected, it will not diminish
their right to insist upon the payment of their entire claim.

The undersigned is further instructed to state to the government of
Venezuela, that the government of the United States, in justice to
itself and to its citizens, cannot consent that the final adjustment,of
this claim shall now be unnecessarily delayed; on the contrary, it
will-not allow itself to believe that such an adjustment will be further
procrastinated by the government of Venezuela.

The claimants, deferring to the views of their government recom-
mending the propriety of a large sacrifice on their part, in order to
avoid even the appearance of want of sympathy with the embarrassed
condition of Venezuela, have proposed a compromise which, the repub-
lic weighing all the circumstances of the case, should, in the judgment
of the United States, cheerfully accept; and the undersigned, therefore,
in pursuance of his instructions, announces to the Venezuelan govern-
ment the anticipation cherished by the government of the United
States that the early adoption of this compromise, avoiding the minute
and tedious examination and further proof of actual losses which will
otherwise be necessary, will speedily remove any occasion of further
embarrassment in the relations of the two countries.

The undersigned renews to Hon. Mr. Sanojo the assurance of his
distinguished consideration.

H. A. TURPIN.
Hon. Luts Sanoso,
Minister of Foreign Relations.

Mr. Turpin to Mr. Cass.

No 7.] LEGATION oF THE Unrrep STAtTEs,
Caraccas, December 1, 1858.

Sm: In conformity with instructions from the department on the
17th September last, I addressed a note to the Minister of Foreign
Relations of this government on the subject of the Aves Island case,
on the basis of admitted liability, presenting the reclamation as an
entirety, and offering a compromise for the whole at the sum of $200,000
United States currency, and the restoration of the island to the claim-
ants. That note I transmitted to the department with my No. 4, under
date of October 23.

I herewith transmit the reply of the honorable Minister of Foreign
Relations, in copy, to that note. The department will perceive that
in the anticipated necessity of special conferences, the honorable min-
ister invites me to come on to Valencia, where the provisional govern-

AVES ISLAND. 451
ment temporarily resides, and to bring on with me all the documents
and proofs bearing on the question, that the executive power may judge
of the equity of the prosecution.

Had the whole reclamation been in the condition of that of the claim-
ants Shelton & Co., I would have accepted the invitation, but, in view
of the fact that one fourth of the compromise so offered was based upon
a claim—that of Lang & Delano—in support of which but little proof
had been offered, and in relation to which, indeed, documents inclosed
in the department’s No. 37, bearing adversely on this claim of Lang
& Delano had been placed in the hands of this government by my
predecessor, together with a knowledge of the fact that a part of this
$50,000 offered to be accepted by Lang & Delano was for $15,000
claimed by Wheelwright & Cobb for false freight on one voyage of a
single vessel, nearly five times as much as was charged by any other —
vessel on the same account between the same ports, I concluded that
perhaps it would be prudent to await the views of the department after
the receipt of my No. 4, by which time also, in all probability, the pro-
vissional government would have returned to Caraccas.

With the highest respect, I have the honor to be, your obedient
servant,

HAS TOREUN.

Hon. Lewis Cass,

Secretary of State.

P. S.—Inclosed copy of Mr. Sanojo’s reply to my note of 17th Oc-
tober, translated.

[Translation. ]
Republic of Venezuela.

DEPARTMENT OF ForEIGN RELATIONS.
Valencia, October 2'T, 1858.

The secretary of foreign relations has had the honor to present to
the executive power the note dated 7th instant, in which the minister
resident of the United States of America proposes to this government
to fix at $200,000 in money of that country the reclamation relative to
the Aves Island, and his excellency the chief of the State has determ-
ined that the following shall be communicated to Mr. Turpin:

The republic has offered to terminate by an equitable adjustment the
question of the Island of Aves, for reasons which were set forth in the
note of Ist July last to the predecessor of Mr. Turpin. It is now that
for the first time in the course of this old business is indicated the
amount of the indemnification which is claimed. Heretofore nothing
more has been sought than the admission of the national responsibility,
and the equity of the proposition of the claimants cannot be judged of
by the note of Mr. Turpin and the accounts of the claimants which
accompany it.

As this matter will make certain conferences necessary, it appears to

452 AVES ISLAND.

the undersigned that the better means of advancing it would be that
Mr. Turpin would be pleased to come on to this place, where the gov-
ernment resides, bringing with him all the documents and proofs on —
which the claim is sustained, the examination of which would place
the executive power in a position to appreciate the nature of the pro-
posed agreement.

The undersigned reiterates to Sen. Turpin the assurances, &c.

LUIS SANOJO.
Hon. Sen. E. A. Turpin,
Mimster Resident of the United States.

Mr. Sanford to Mr. Cass.

Wasuineton, December 9, 1858.

Str: I have lately had several conferences with a gentleman of high
official position in Venezuela, who has just arrived from that country,
and represents, as he informs me, and as I have no doubt he does, the
views of the Venezuelan government with respect to the Aves claim.

The result of these conferences has been the conviction on my part,
founded on his assurances, that a prompt settlement can only be made
with that government by still further concessions on the part of the
claimants, and that the embarrassments created by an insidious enemy,
would, otherwise, be taken advantage of to create still further delay
and difficulty.

We have named the sum of $200,000 as the least that would indem-
nify us for the actual losses sustained, and we are very reluctant to
make any reduction in a sum which we have regarded as a minimum.
Still, so anxious are we to have this long pending difficulty settled,
and so desirous not to stand in the way of the renewal of the most
friendly and cordial relations between the two countries, that I have
determined, consulting the best interests of the claimants, exposed as —
they are to further delay as beforesaid, to accept a further reduction if
offered by the government of Venezuela, on condition of immediate
settlement.

As the national convention, which must ratify, to make binding on
Venezuela, such settlement, will probably adjourn early in February,
it is possible that, in order to expedite this business, I, or some other
person, may proceed to Venezuela to represent the claimants.

I have therefore respectfully to: request that Mr. Turpin be in-
structed to proceed immediately to the seat of government at Valencia
to terminate this negotiation, and that he be authorized to accept, on
behalf of the government, such further compromise as he and the rep-
resentative of the claimants may mutually agree upon, or as he may
be authorized by their attorney or representative to make.

With regard to the relinquishment of the isle to us, the desire was
expressed by the person referred to, that the subject be left for a short
time pending, in order not to embarrass the negotiations now progress-
ing with Holland with reference to the title to ‘‘Aves.’’ ‘To this we

AVES ISLAND, 455

assent; it being clearly understood that Shelton & Co. do not relin-
quish their claim to the isle, nor compromise it in any way, but insist
upon their right to be restored to their previous possession, or to be
indemnified by Venezuela in default of such restoration.

For the event, however, of a sum to be agreed by the government
of Venezuela to Shelton & Co., for their relinquishment of all rights
and title of the claimants to the isle, I have also to request that Mr.
Turpin be instructed to make formal relinquishment of the same to
Venezuela.

I have the honor to be, very respectfully, your obedient servant,

H. 8. SANFORD.

Hon. Lewis Cass,

Secretary of State.

f

Mr. Cass to Mr. Turpin.

No. 12.] ‘ DEPARTMENT OF STATE,
Washington, December 10, 1858.

Sir: Inclosed herewith you will receive a copy of a communication
dated December 9, 1858, from Mr. H. 8. Sanford, the agent of Messrs.
Shelton & Co., and Messrs. Lang & Delano, on the subject of the
Aves claim. It appears from this communication that there is reason
to believe that the Venezuelan government is disposed to make a
prompt and final adjustment of this claim, provided the parties inter-
ested will consent to such an adjustment upon the terms indicated in
Mr. Sanford’s letter. Of course this government has no desire to
intervene against any settlement which may be satisfactory to the
claimants, and not inconsistent with the rights and honor of the United
States. Inasmuch as Venezuela is understood to have acknowledged
the wrong which it committed in the eviction of our citizens from the
‘island, and its consequent liability to make reparation, there is no
good reason why the United States should not permit the parties ag-
grieved to accept any terms of adjustment which may be satisfactory
to them. It is quite time, moreover, that the controversy was settled,
and if it can be adjusted peaceably and speedily, this should be a
source of gratification to the governments and people of both coun-
tries.

You will repair to Valencia immediately upon the receipt of this
dispatch, and place yourself in communication with the government
there on this subject. If you find that an adjustment is practicable}
upon terms satisfactory to the claimants, you will lose no time in
bringing it to a conclusion, without awaiting any further instructions
from the department. When a compromise is to be made, there need
be no question, of course concerning proofs and details ; but you will
not permit the idea to be entertained by Venezuela that the disposition
of the claimants to compromise their claims grows out of any doubt,
either on their part or on that of their government, of its entire valid-
ity or of their perfect ability to maintain it. They are weary, how-
ever, with delay, and prefer to abate a portion of their rights rather

454 AVES ISLAND.

than endure a still longer procrastination, or be instrumental, in any

way, in producing a rupture in the friendly relations of two republics

which ought always to be on the best terms with each other. Keep-
ing this view of the subject in mind, it is hoped that under the new
aspect of the case presented by Mr. Sanford’s letter, you may be able
to terminate this troublesome controversy without further delay.
tam, sir, your obedient servant,
LEWIS CASS.
Epwarp A.-Turpin, Hsq., cc. !

Mr, Sanford to Mr. Cass.

Wasuineton, January 14, 1859.

Sir: I have the honor to transmit herewith—

First, A revised statement of the claim of Lang & Delano for their
losses sustained by reason of their expulsion from Aves Isle in Decem-
ber, 1854. .

Second. The depositions of George McGeorge, Charles H. Lang,
Captain Samuel Herrick, Captain James Phinney, George Wood Rice,
Isaac R. Mills, Nathan N. Bridge, and John H. B. Lang.

Third. Duplicates of the above depositions with the exception of
that of Captain Herrick.

Fourth. The original charter parties of the vessels named in the
statement having been driven away or restrained from loading at Aves
by the Venezuelan forces, as detailed in said statement and the depo-
sitions. ‘These papers, with the exception of the duplicate depositions,
I desire to have filed in the department for reference in the case of
Lang & Delano.

And I have to request that a copy of this statement of claim, the
duplicate depositions, and a copy of that of Captain Herrick be for-
warded immediately to our minister at Valencia, with instructions to
present them without delay to the government of Venezuala, as com-
pleting the testimony in this claim.

I would call the attention of the department to these depositions as
fully substantiating every item of damage set forth in the accompany-
ing statement; and if found satisfactory to the department, as I can-
not doubt they will be, I have further to request that Mr. Turpin be

gastructed so to inform the minister of foreign relations of Venezuela.

Notwithstanding statements to the contrary insidiously made to
those in authority in Venezuela, the deposition of Captain Gibbs, and
other witnesses for Shelton & Co., are, so far as they go, confirmatory
of the evidence given by Lang & Delano with respect to their losses.
The only items specified in the former, were for estimated damages
for loss offfixtures, provisions, utensils, &c., by Lang & Delano, which
Captain Gibbs and others thought not to exceed $10,000 in amount.
This is what is claimed by Lang & Delano, and what is proved to
have been the amount of loss under that head. As to false freights

AVES ISLAND. 455.

and other losses, those depositions say nothing precisely ; and had they
contained estimates of them, they could have been but matters of opin-
ion subject to verification by the testimony of those having positive
and accurate knowledge on those points. The presentation of the
accompanying depositions to the government of Venezuela will dissi-
pate, I feel certain, the doubts which it has been sought to excite on
the ground that there were discrepancies in these claims.

And, in this connection, I would respectfully ask to be informed
whether it be true that the late minister of the United States at Ca-
raccas had, prior to quitting that mission, communicated to the Vene-
zuelan government any papers bearing on these claims other than the
proofs which (at the request of claimants, and upon their complaint
that he had withheld a portion of their proof and given another muti-
lated portion to that government) he had been directed forthwith to
present it. :

I have been informed that sundry letters written to the Department
of State by Shelton & Co., or their attorney and counsel, in opposi-
tion to the pretensions of other claimants, and which I suppose to have
been communicated to our legation at Caraccas for its information, had
been placed in the hands of the Venezuelan government to the preju-
dice of these claimants, and had caused embarrassment in the prose-
cution of the claim. I should regret to learn that this had been done
by an agent of the government, which, I conceive, could not have-
authorized any act to the prejudice of interests of our citizens confided
to it, and I would respectfully ask to be informed whether, if it be
true that such papers have been communicated to the Venezuelan gov-
ernment, it has been done with the sanction of the department.

T have the honor to be, very respectfully, your obedient servant,

H. 8. SANFORD.
Hon. Lewis Cass,

Secretary of State.

Mr. Appleton to Mr. Turpin.

No. 138.] DEPARTMENT OF STATE,
Washington, January 22, 1859.
Sir: Herewith you will receive a series of documents transmitted to
the department by Mr. Sanford, as attorney for Lang & Delano, in
support of the claim against Venezuela, which, as you allege in your
No. 7, was so deficient in proof that you had felt constrained to de-
cline the invitation of the government to proceed to Valencia for the
purpose of entering upon an investigation of the Aves claim, with a
_ view of deciding upon the equity of the compromise offered by the
claimants to the Venezuelan government. We
Mr. Sanford, having been apprised of the lack of proofs complained |
of, has lost no time in supplying the needed documents, which the
department regards as satisfactorily sustaining their accompanying
detailed statement of losses, and which you will lose no time in laying

456 AVES ISLAND,

before the government, unless, as is hoped may be the case, you may
already have succeeded in procuring the adjustment of the claim upon
the terms of the proposed compromise.

No. 7, above referred to, is the last dispatch received from you.

I am, sir, your obedient servant,
JOHN APPLETON,
Assistant Secretary.
Epwarp Turpin, Esq.,
shes.) de.) see:

Last of Inclosures.

A.—H. 8. Sanford to Secretary of State—January 14, 1859.
B.—Detailed statement of Lang & Delano’s claim.

C. —George McGeorge’s affidavit.

D.—Charles H. Lang’s affidavit.

E.—L. Herrick’s affidavit. :
F’.—George Wood Rice’s affidavit.

G.—Isaac B. Mills’s affidavit.

H.—N.N. Bridge’s affidavit. - _

I. —John H. B. Lang’s affidavit.

K.—James H. Phinney’s affidavit.

Mr. Cass to Mr, Turpin.

No. 14.] DEPARTMENT OF STATE,
Washington, February T, 1859.

Sir: At the request of Mr. Sanford I inclose herewith an attested
copy of the deposition of Captain Charles Penfield in support of the
claim of Lang & Delano, and to be considered in connection with the
proofs forwarded with the last dispatch to you, since the date of which
no communications have been received from you.

Iam, sir, your obedient servant,
LEWIS CASS.

HK. A. Turpin, Esq.,

CGC ee

Mr. Turpin to Mr. Cass.

No. 10.] LEGATION oF THE UNITED STATES,
Caraccas, February 8, 1859.

Sir: I have the honor to acknowledge the receipt, on the 83d Janu-
ary ultimo, of the department’s No. 12, (previous numbers also re-
ceived,) together with its accompanying inclosure of a copy of a com-

ee eee

AVES ISLAND. *| 457

munication to the department from Mr. H. 8. Sanford, attorney of the
Aves Island claimants against the government of Venezuela for losses
and damages resulting from the eviction of their agents and employés
from said island by the forces of Venezuela in the year 1854.

In compliance with the instructions contained therein, I left Carac-
cas the ensuing day for Valencia, and on the 14th of the same month
succeeded in effecting an agreement with the government of Venezuela,
a copy of which I herewith transmit, the conditions being almost
indentical with the expressed wishes of the claimants, the only de-
partures therefrom being in the inability to obtain from this govern-
ment the alternative condition of recurrence to the custom-houses of
the republic in case of the failure of punctual payments. This condi-
tion was suggested, not insisted on by the claimants, and the new ad-
ministration, regarding it as derogatory to the dignity of the nation,
had determined not to admit it hereafter. The other departure has
been in a small extension in time.of the payments to be made the first
year, but as the amount is on interest, and the whole sum being still
made payable within the period prescribed by the claimants, viz: six
years, it was not deemed by me to be a matter of sufficient importance
as to compensate for the risk of delaying the conclusion of the agree-
ment to a later day in the session of the national convention, then
preparing for its very early dissolution, since effected, on the 3d of .
this present month. On the other hand, I have obtained for the
claimants interest on the whole amount of the indemnity, to com-
mence on the first day of January instead of from the date of signing
the convention, as instructed—say, on the 14th ultimo—in dispensing
with the necessity of proof in the case of Lang & Delano, and also in
the complete and final settlement of the question of property and re-
linquishment of the island, without the necessity of a formal reference
to the government of the United States, which might have involved
the necessity of a ratification by the Senate of the United States, thus
delaying the first payments for a year or eighteen months.

In its approval the convention exacted as a condition indispensable

that the interest accruing should be computed at simple, not compound
rate, and it was further agreed that the last clause in the third article
(included in the brackets in the copy) should be ‘‘not approved.”’
_ In reference to the sum to be accepted in lieu of the relinquishment
of the island by Venezuela, the attorney for the claimants, in a confi-
dential letter to me, had referred me to a gentleman of this city who
was authorized by him to admit of a certain sum; that gentleman,
Seftor José M. Rojas, has communicated the same to me in writing,
and his letter is filed in the archives of this legation. At the particu-
lar request of the secretary of foreign relations, this sum of $10,000
was incorporated in the agreement generally, in the gross sum of the
indemnification, and not mentioned as the specific equivalent for the
relinquishment of the island.

This question of the Island of Aves has attracted more than usual
attention in Venezuela, and President Monagas, in his message to
Congress in 1856, communicated a report of the secretary of foreign
relations, in which the question was treated in a very decidedly Vene-
zuelan point of view, being, indeed, very nearly identical with the

458 | AVES ISLAND.

publication made in the United States on the subject by Sefior Briceno,
then minister plenipotentiary of Venezuela near the government of the
United States. This had given so very decided a bias to the public
mind here, that it was not without considerable difficulty that the ap-
probation of the national convention was obtained, and, at one period
of the discussion, I had very serious apprehensions of being able to
obtain it. I remained in Valencia, however, until it was finally done,
and I trust that this question, by the present agreement, has been
settled to the satisfaction of the government of the United States and
of the claimants. Of this I feel quite confident, that the very highest
amount and the very best terms for the claimants compatible with the
amicable relations of the two governments have been obtained.

Since writing the above I have received a note, under date of 4th
instant, from honorable Minister of Foreign Relations, recapitulating
the conditions, above alluded to, of the approval of the Aves Island
agreement and desiring the expression of my consent thereto in |
writing, which note, in copy and translation, I herewith transmit,
together with my reply of this date to the same.

With the highest respect and consideration, I have the honor to be
your obedient servant,

EK. A. TURPIN.

Hon. Lewis Cass,

Secretary of State.

lust of accompanying inclosures.

No. 1.—Aves Island agreement.
No. 2._Sanojo’s note, February 4, and translation.
No. 3.—My reply to same, date February 8.

The undersigned, Edward A. Turpin, minister resident of the United
States of America, and Luis Sanojo, secretary of state of the depart-
ment of foreign relations of the government of Venezuela, being duly
authorized to form an equitable agreement for the satisfaction of the
damages and losses sustained by Philo 8. Shelton, Sampson & Tap-
pan, and Lang & Delano, in consequence of the eviction of their
agents and employés from the Aves Island, by the forces of Venezu-
ela, have agreed upon the following articles >

Articte 1. The government of Venezuela obliges itself to pay to the
government of the United States, or to its minister resident in Venez-
uela, the gross sum of one hundred and thirty thousand dollars, United
States currency, ($130,000,) of which said sum one hundred and five
thousand dollars ($105,000) are in liquidation of the claims of Shelton,
Sampson & Tappan, and are to be distributed among themselves, and
the residue, that is to say, twenty-five thousand dollars, ($25,000,) is
in liquidation of the claim of Lang & Delano.

AVES ISLAND. 459

Arriciuz 2. The said sum of one hundred and thirty thousand dollars
shall be paid in the following terms:

For Shelton, Sampson & Tappan. For Lang & Delano.
elute Vee cnc one $2500
ATOUS be yee eae 2,500
fo : Ouisbert hone 2:500
| December al tae 2,500
$10,000
1860. ePume BOs ese. $7,500 $2,000
December 31..... 7,500 2,000
$15,000 $4,000
1861. Ane SOU laa. $10,000 $2,000
December 31..... 10,000 2,000
$20,000 $4,000
1862. Mey SOs c65 tae vee $10,000 $2,500
-December 31..... 10,000 2,500
- $20,000 $5,000
1863. ane: SOL. ven ne $10,000 $3,000
December 31..... 10,000 3,000
$20,000 $6,000
1864. Mees Uta erat $10,000 $3,000
December 31..... 10,000 3,000
- $20,000 $6,000
$105,000 $25,000

Interest at the rate of five per cent. per annum shall be paid on the
cross amount of indemnity, commencing on the first day of this pres-
ent month, January, 1859, and being added to the several installments

as they fall due, the interest being always computed on the amount of
indemnity remaining unpaid at the time of the payment of the several -

installments.

Articte 3. In consideration of the above agreement and indemnifi-
cation, the government of the United States, and the individuals in
whose behalf they have been made, agree to desist from all further
reclamation [for] the Island of Aves, [abandoning to the republic of
Venezuela whatever rights might pertain to them. |

Articie 4. This agreement shall be submitted to present national
convention, and in case it should not be ratified by it before the closing
of the present session, then it shall be considered null and void.

HK. A. TURPIN.
LUIS SANOJO.
Vatencia, January 14, 1859.

1

460 AVES ISLAND.
[ Translation. ]
fiepublic of Venezuela.

DEPARTMENT OF FoREIGN RELATIONS,
Valencia, February 4, 1859.

Str: I have the honor to inform you that the national conventicn
has approved, on the first of this month, the agreement respecting the
Island of Aves concluded with you, suppressing, in the third article, the
second part, running thus: ‘‘abandoning to the republic of Venezuela
whatever rights might pertain to them,’’ together with the notice that
the interest stipulated in the second article shall be always simple, and
shall be only paid successively upon the capital unpaid.

Will you be pleased to state to this department whether, notwith- °

standing the said suppression, you will consent to the agreement?

I avail myself, &c.,
LUIS SANOJO.
Hon. E. A. Turpin,
Minister Resident of United States.

LEGATION OF THE Unitep STATES,
Caraccas, February 8, 1859.

Sir: The undersigned, minister resident of the United States, has
the honor to acknowledge the receipt of the note of the honorable min-
ister of foreign relations, under date of 4th instant, in which the hon-
orable minister informs the undersigned that the national convention
had approved, on the Ist instant, the agreement respecting the Island
of Aves concluded between the honorable minister of foreign relations
and the undersigned, in Valencia, on the 14th of January last, sup-
pressing, in the third article, the second part, reading thus: ‘‘aban-
doning to the republic of Venezuela whatever rights that might pertain
to them,’’ together with the notification ‘‘ that the interest stipulated
in the second article should always be simple, and be only paid succes-
sively upon the unpaid capital,’’ and desiring the undersigned to state
whether, notwithstanding such suppression, he still consented to the
same ; to which the undersigned briefly replies that he does.

The undersigned avails himself of this occasion of expressing to the
Hon. Mr. Sanojo his sentiments of distinguished consideration.

EH. A. TURPIN.

Hon. Luis Sanoso,

Minister of Foreign Relations.

eae

AVES ISLAND. 461

Mr, Appleton to Mr. Sanford.

DEPARTMENT OF STATE,
Washington, March 4, 1859.

Sir: Herewith I communicate to you as the attorney and representa-
tive of the claimants, a copy of a dispatch dated the 8th ultimo, and
of its inclosures just received from our minister in Venezuela.

These papers inform the department of the final settlement of the
claims growing out of the eviction from the Aves Island, by the armed
forces of Venezuela, of the agents and employés of Messrs. Philo S.
Shelton, Sampson & Tappan, and Lang & Delano, in 1854. Although
there is a material abatement by the terms of the convention from the
sum last named by this department to Mr. Turpin, as insisted on by
the claimants, it 1; inferred from his dispatch that the arrangement
will be satisfactory, since it appears to be in general conformity with
certain powers and concessions granted: by you for the purpose of facili-
tating the more speedy adjustment of the claims.

Tam, sir, &e.
JOHN APPLETON,
Assistant Secretary.

H. 8S. Sanrorp, Esq., >
Brevoort House, New York.

Mr. Sanford to Mr. Appleton.

Derpy, Connecticut, April 8, 1859.

Sir: Having received from you by your letter of 4th ultimo an
official notification ‘‘ of the final settlement of the claims growing out
of the eviction from Aves Island, by the armed forces of Venezuela, of
the agents and employés of Messrs. Philo 8. Shelton, and Sampson &
Tappan, and of Lang & Delano, in 1854,’’ by the conclusion of a con-
vention for the payment of $130,000 in yearly installments, payable
from one to five years, it is meet that I should address you this letter
in reply thereto.

And, in the first place, your inference is correct that Mr. Turpin
acquiesced in this large abatement of the minimum sum, mentioned in
the instructions of the department to him, with my assent as attorney
for the claimants. I was induced to yield this assent, not only because
I was willing to make a sacrifice of a portion of our just demands to
avoid further trouble to my own government, but also because these
claims had been in no little degree embarrassed and prejudiced by the
action, prior to 1858, of the then American minister at Caraccas,
which I was apprehensive would occasion further procrastination and
difficulty if our gull rightful demands were insisted upon.

The spoliation and eviction occurred in December, 1854. The

462 AVES ISLAND.

claimants, immediately on being advised of it, in January, 1855, made
earnest representations to the federal government, and asked for its
_ Interposition to procure redress. In seeking this redress, the claimants
soon found that they had not merely the Venezuelan government to
encounter ; a powerful combination of speculators in Philadelphia,
New York, and Baltimore, known as ‘‘the Philadelphia Guano Com-
pany,’’ composed of many persons in those cities possessed of reputed
large pecuniary means, and at that time wielding no little political
influence, it was soon seen, was by far our most formidable antagonist ;
and for the reason that its efforts to circumvent the payment of our
just demands were chiefly exerted, and its influence most injuriously
felt at Washington and upon the United States minister at Caraccas.
This company claimed Aves Island under a conditional purchase from
Venezuela. made by contract with the Monagas administration on the
25th December, 1854, (based upon a previous understanding as to the
eviction,) after the claimants had been six months in possession, though
those conditions were not fulfilled, and the bills of exchange, the con-
sideration of the sale, (called the ‘‘ Wallace contract,’’) were protested,
and the contract subsequently, in July, 1855, declared null and void
by the Venezuelan government on account thereof, the same opposition
to our just claims continued from the same parties. In relation to the
‘Wallace contract,’? Mr. Hames, in a dispatch dated April 6, 1856,
gives its details, and adds: ‘‘I have permitted myself to go into these
details in this dispatch, by reason of the expressed wish of the de-
partment that I should sift the nature of the transaction, and the
motives which induced this government to occupy the Aves. There
is, in my judgment, ground to believe that the act of occupation took
place as a necessary condition precedent to the drawing of the drafts.
The occupation took place on the 13th of December, just in time to be
known here on the day when the contract was signed; that is, the
21st of the same month, the drafts being drawn and delivered four
days afterwards.’’ And he further says, ‘‘it is currently reported
. that high official men here, then in power, were to share in the profits
of the contract. No fact has come to my knowledge which makes this
statement improbable.’’ And in September, 1855, the contract was
renewed through the zealous and extraordinary interposition of the
American minister, (indicating that the United States government
took a great interest in its revival,) and this Island of Aves in terms
included in it, with express exemption of guarantee of title by Vene-
zuela ; and this last contract, called the ‘‘ Pickrell contract,’’ was so
procured by the active ‘‘good offices’’ of the American minister, os-
tensibly in compliance with a suggestion contained in a dispatch dated
June 20, 1855, from Mr. Marcy, then Secretary of State; but it is
considered in flagrant violation of the explicit instruction of Mr.
Marcy ‘‘to forbear to do or say anything in favor of the Philadelphia
company which will in any way affect the (our) claim,’ which the
same dispatch informed the minister our government intended to en-~
force.

Mr. Eames seemed from the outset not merely indisposed to do any-
thing to advance and sustain the claim, but the claimants then thought,
and have seen no reason to change their opinion, that he was hostile

AVES ISLAND. 463

to it, and interested, in feeling or otherwise, in favor of the Philadel-
phia speculators. It was not strange, therefore, that no copy of the
‘¢ Pickrell ' contract,’’ containing the provision in regard to Aves
Island, was communicated to the department by him until February
22, 1856, and then only until Mr. Marcy, in his dispatch of December
24, 1855, somewhat significantly remarked to that official, in acknowl-
edging the receipt of the dispatch advising of the consummation of
the contract, ‘‘a copy of the contract itself, however, would have been
acceptable to the department, especially as we are orally informed
that, despite the reservation |Mr. Marcy evidently supposing it con-
tained such reservation] of the rights and claims of those citizens of
the United States who were ousted from Aves Island by a Venezuelan
vessel-of-war, guano from that island has been recently brought to this
country by vessels in the service of the company who are a party to
the contract.”’

So unjust and annoying was the course of the American minister in
reference to the claim, that, December 24, 1855, the claimants felt
constrained to address a communication to the President, a duplicate
of which was transmitted to the State Department, referring to that
course as affording just ground for serious complaint, which letter, on
the files of the department, it is important should be preserved, as it
may be material hereafter, to vindicate the truth of history. The
letter of Mr. Marcy to Mr. Hames of February 20, 1856, in relation to
this complaint, it is not considered necessary to comment upon. Mr.
Marcy, doubtless, at that time, entertained the opinion there expressed.
And here it is proper to advert to the fact, that a most remarkable
contradiction appears in the official accounts spread upon the records
of this government and that of Venezuela, in relation to the mode and
manner in which the ‘‘ good offices’ of the’ American minister in favor
of the ‘‘ Pickrell contract’’ were rendered, and in relation to the inclu-
sion of Aves Island in that contract. In Mr. Hames’s dispatch of
February 12, 1856, forwarding the ‘“‘ Pickrell contract’? by which the
department was first apprised of such inclusion, Mr. Hames makes
these singular statements: ‘* Although I could, of course, claim 16
authority to prescribe the form of the contract, yet I do not doubt that
the avoidance by this government of any reference to the Aves Island
in the article granting the privilege, and the subsequent exception and
limitation introduced with reference to that island were, in part, if not
mainly, caused: by my explicit and emphatic reservation of all the
rights and claims of its prior American occupants, and by my declara-
tion that those claims would, without doubt, in my judgment, be
energetically sustained by the government of the United States.”’
And in a previous dispatch of October 15, 1855, he states ‘‘ I not only,
in compliance with your instructions, reserved in the most clear and
emphatic manner all rights and claims of the American citizens who
were found in possession of the Aves Island by the Venezuelan author-
ities on the 13th of December, but I took care also to put on record my
reiterated declaration that no act or word of mine in rendering my
good offices in aid of the rights and interests represented by Mr. Pick-
rell should be considered as in any way affecting or impairing the
anterior claim of those citizens to full reparation, in regard to which

464 : AVES ISLAND,

anterior claim I repeated to his excellency my confident conviction
that it would be effectually sustained by the government of the United
States.’’ And with the same dispatch he incloses a note dated Sep-
tember 4, 1855, to Sefior Aranda, Venezuelan minister of foreign rela-
tions, referred to as his ‘‘protest’’ in question, and which purports to
be the substance of the observations which he then recently ‘‘had the
honor to address to his excellency the President of the republic in the
presence of the honorable minister of foreign relations and of Haci-
enda, in an audience solicited by him for the purpose of making known
to the government of Venezuela the views of the government of the

- United States in relation to what may be called the question of the

guano islands.’’ The representations in this note are remarkably in-
consistent with, and contradictory to, those made in the official reports
of the minister of foreign relations and Hacienda to the Venezuelan
Congress, and which are filed in the department, and those in the
dispatch of Sefior Gutierrez to General Cass, brought by Dr. Briceno,
special minister to the United States, and those in the pamphlet so
exceptionably published in this country by that official, and indeed
throughout all the Venezuelan correspondence. Extended and par-
ticular comment upon the irreconcilable statements made in these
documents, would give unprofitable length to this communication, and
the subject is a disagreeable one, for a perusal of those documents will
show that a direct issue is made, the result. of which depends wholly
upon the veracity of thé different statements by Mr. Hames on the one
hand, and the several ministers of President Monagas’s administration,
present at the audience, on the other. These claimants then thought,
and still think, that a sincere earnestness on the part of our minister,
in obedience to the instructions of the department, would have ex-
cluded from the ‘‘ Pickréll contract’’ all mention of Aves Isle, or, if
mentioned, would have caused an express reservation of our rights in
terms that could not have been misunderstood or disputed, and that
at the same time he could even with more facility and greater advan-
tage have secured to the Philadelphia Guano Company under it all
tk&, sought for with respect to the other guano islands. And espe-
cially are they confirmed in this opinion by the representations of
Venezuelan authorities that the original draft of the ‘‘ Pickrell con-
tract,’’ including the Aves Island, was. made or dictated by Mr. Hames
himself without reservation of our rights, and that among his chief
arguments used to the Venezuelan government to obtain its acquies-
cence was, that refusal so to revive the contract would imperil the
friendly relations between the two governments.

The claimants attach importance to these facts, because, as the records
of the department will show, the transfer of the possession of Aves Isle
by the Venezuelan government to the Philadelphia Guano Company
thus obtained was seriously detrimental if mot totally destructive to
their interests in the isle, and to, their claim for indemnity beyond
damages and actual losses resulting from the spoliation and eviction,
and the Venezuelan authorities continually referred to it as an admis-
sion by the United States of the title of Venezuela to the isle. The
Philadelphia Guano Company, under their most nefarious and iniqui-
tous contract, procured in a great measure by the representation that

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