found, at page 700 of the first volume, an exact description of those deposits, their locality, and their extent. Article 15 of the Commercial Regulations, promulgated by the Government of Peru in 1852, declares that "the vessels that take in guano for foreign ports shall be allowed to do so in the Chincha Islands only." Article 114 of said regulations provides that "the exportation of guano shall be carried on only by vessels under contract with the Government or its agent," and Article 113 states "that vessels that may be found at anchor on the coasts of the islands belonging to the Republic shall be confiscated; and moreover, that, if guano shall have been found aboard, the captains and crews be handed over to the action of customary justice to be tried as delinquents in cases of theft." The existence of this regulation must be, and it could not but have been known and understood in the Union; for in the same "report," officially presented, we find at page 685, and on the ones following, of the first volume, a detailed reference to its provisions, with the special information touching the guano question.

Besides what has been cited, we find in their full vigour, and as they still are with some charges therein mentioned, the decrees of the Government of Peru in relation to the contraband of guano, dated January 14, March 21,* and May 10, 1842,† lately reprinted for abundant caution in the official paper of the 27th of February, 1857. They declare "that no quantity of guano shall be taken out, for exportation to foreign ports, from any portion of the territory of the Republic, unless from the northern island of the Chincha group;" "that no authority of the Republic can, in any case, grant permits to take out guano for foreign exportation, and that the Custom-Houses, with the exception of that at Callao, shall refuse all clearances applied for; that every national or foreign vessel that may anchor at or come to the islands or places where guano may be found, without due permits from the authorities that are empowered to grant them, shall be liable to confiscation ;" and that vessels that may be engaged in contraband, or may violate the articles in relation to anchoring at or coming to the guano islands or deposits, or those relative to the taking out of guano from other points except those designated, and that designation being confined to the northern of the Chincha Islands, shall be seized, and their captains shall be brought to trial as contrabandists."

Lastly, the national Convention of the Republic deemed it proper to promulgate its decree of the 1st of April, 1857, which was published in the official paper of the 2nd of said month. It laid down the following provision:

"That all the guano exported, and thereafter to be exported from the Chincha Islands, or from any other deposit of Peru, by disturbers * Vol. XXXI. Page 1097. + Vol. XXXI. Page 1101.

of the public order, or by virtue of contracts made with them, or with their agents, shall at all times be subject to be claimed back as stolen national property, and the parties responsible therefor shall be civilly and criminally prosecuted in conformity with law."

Such being the provisions of the existing laws of Peru, laws in vigour at the time when the Georgiana and the Lizzie Thompson were captured, laws promulgated, the most part of them, many years back, and the most recent of them nearly 10 months before the arrest was made; the government of the Union itself having nearly two years before officially recognized and indicated the most important of them; and it being equally notorious and public in the Union, from the discussion between the two Governments in relation to the Chincha Islands, that the guano deposits in Peru are the exclusive property of the nation, the products of which are exclusively worked out and sold by the agents of the Republic under contracts; the Undersigned will take for granted that there is, binding upon the captains and crews of the vessels referred to an obligation to conform their action to those laws, or to incur the penalties which they provide. It being also granted and acknow ledged that those vessels were met at points interdicted, not only without permits from the lawful authorities of the Republic, but in the act also of doing that which, under the laws, no authority of the Government, however legal it may be, can lawfully allow; that considerable quantities of guano, the property of the nation, had been found on board of those vessels; that the Captains themselves had accepted and signed contracts for freight, to take the guano from those points, in violation of the laws quoted, and in contempt of their authority, of respect for, and of the rights of the Republic; it is no easy matter to understand that system of reasoning which results in declaring them absolved from all criminal responsibility.

Setting aside the observations, no doubt very interesting and worthy of the acknowledged distinction of the Honourable Representative of The United States in Lima, touching the rights of nations under republican institutions, the arguments by which he maintains his first and second propositions are reduced to two.

First, that the Captains of the vessels arrested having gone to Iquique in the pursuit of lawful commerce, and being there met with by official agents of an apparently lawful character, they were bound to obey them and to act to the extent allowed by the permission of those de facto authorities; and that they had such permission to go and take guano in the ports mentioned, and that if the permits were illegal the blame must not attach to them but to the pretended authorities.

Secondly, that Peru was, and it had for nearly two years been, in a state of civil war; that the existence of the revolution was [1859-60. L.]

4 D

well known; that, according to the modern doctrine of the rights of nations, the two contending parties occupy, toward each other and toward the other nations, a belligerent position, which position imparts to individuals of the friendly nations the rights of neutrality as in a case of perfect public war.

The same discrepancy, previously noticed between the profound peace of Honourable Mr. Clay's communication of the 4th of February and the state of "civil war," commented in this note, seems to the Undersigned to lie at the ground of the two arguments which he has just reproduced. If the vessels in question went as neutrals to Iquique, prosecuting their commerce in a port of a nation at war, it seems difficult to ascribe to their Captains the innocent and natural error, under the influence of which, it is supposed, they in good faith mistook the pretended authorities of the insurrectionists for the lawful authorities of the Government of Peru. If, on the other side, they entered Iquique as a port of a nation at peace, intending to obey the laws and conform to existing regulations of commerce, how can they now be defended under the supposition that they claimed the rights of neutrals trading with a nation at war? But, passing by this inconsistency, or what seems to be one at least, it strikes the Undersigned that there is a conflict in the Honourable Mr. Clay's arguments, and that in a very important point, with the most sacred principles of public law.

The principle that in certain cases a civil war may confer the rights of belligerents on the two contending parties, and communicate the rights of neutrals to those who trade with them, respectively, has no doubt been admitted as a sound principle. But this principle, which is exceptional in its origin and legitimacy, has never been carried, as the Undersigned with some confidence presumes, so far as to assert that in the unfortunate event of a civil war in any nation, the members of other friendly nations have the right of determining, by themselves and for themselves, the existence of such a war, without the previous action and authority of their respective Governments. The Undersigned, on the contrary, thinks that he can rely on the distinguished support of the Honourable Secretary of State, when he advances it as a sound and settled doctrine in such cases, that the Government of The United States has first to officially recognize the state of civil war in Peru, and declare their neutrality therein, before their citizens can avail themselves in Peruvian territory of the rights of neutrals in a belligerent country. Unless the Undersigned mistakes, this doctrine has received the illustrious sanction of the Supreme Court of the Union in various cases, and has decidedly so, that of the Courts of Great Britain. If it were not so, if the principle laid down by Mr. Clay could make good that the bare fact of the chiefs of an

insurrection having enough of power temporarily to command and hold possession of the property of the nation in its territory, authorizes the members of other nations to deal at once with them as the owners of what they thus hold, there could be no security anywhere, and the door would be thrown wide open to every kind of disorder and plunder. The United States, luckily powerful and happy so far, have not gone through the sad ordeal of any domestic revolution, but in the possible contingency of so disastrous an event, it might be equally daring and dangerous for the members of any foreign nation to proceed, without the previous determination of their own Government in the matter, to treat with the rebels, to help them in their spoliations of national property, and afterwards claim, for their defence or justification, the rights of neutrals during the existence of the war. The Undersigned will not say, though such an assertion might not be a very rash one, that The United States would exact a satisfaction or a compensation from that nation whose subjects might thus expose themselves; but they would certainly not allow any national intervention, however powerful it might be, to interfere with the vindication of their outraged laws. The Government of Peru confidently relies upon the conviction that the Cabinet of Washington could not wish to impose upon the other nations, much less upon those of inferior power, principles which it would not recognize in its own case.

If the Undersigned have not erred in these inferences, there is little to be added relative to the two first propositions of the Minister of The United States in Lima. It is clear that the Captains referred to cannot shield themselves behind the pretence of war or of neutrality.

The revolutionary state in the southern portion of the Republic of Peru, being as public and notorious as it is alleged to have been by the Honourable Mr. Clay-a state of confusion, which, according to his own communication had been enduring for nearly two years; a state publicly announced and freely commented upon, from its commencement, by the whole press of the Union-how can it be possible, in a question of fact, to impute to two American Captains, intelligent as all men of their class are, the gross and absolute ignorance under which they are, by his Excellency, presumed to have laboured as to so anomalous and so well known a state of things? Can it be believed that, after having been in Iquique for the length of time which they spent there, they failed to learn that the port was in possession of the insurrectionists? It is because they were not under an obligation, moral and legal, to inform themselves of so important a point? Granting, for the sake of argument, that they were uninformed of the revolutionary condition of the port and of its usurpation by the pretended authorities when they entered Iquique, is it credible that they were ignorant of the

fact when they sailed out of it? And aware of it, as it was their duty to be, and as they no doubt were, being under an equal obliga. tion of ascertaining the laws of the country and paying obedience to them, if lured by a spirit of speculation or of covetousness, or if it be by a mere spirit of adventure, they resolved to violate the regulations of the Republic, to affiliate with the treasonable disturbers of its peace and to plunder its patrimony, must they not also be held to have taken upon themselves the responsiblity and the consequences of their course? It would certainly be strange, were they absolved from these for the reason that one of them had made a contract on guilty grounds with the French Consul, and that both had, in the port of Iquique, seen an English man-of-war, as the Honourable Mr. Clay so singularly insists upon. There is nothing improbable in the fact that even a Consul of any nation should fail in respect of the laws of the country in which he exer cises his functions, because, both within the experience of the Union and of Peru, such cases have been known to occur. It is therefore no way strange that an armed vessel should remain in a rebellious port, not to countenance its rebellion, but, on the contrary, to protect the citizens of its flag against revolutionary violence and guilt. The Undersigned cannot understand how the Captains alluded to can claim the benefit of the good faith and ignorance invoked in their behalf by the Honourable Minister of The United States in Lima, confronted by the facts set forth by the charter parties themselves, under which they were acting when captured. It is a remarkable circumstance that while the pretended permits, granted by the pseudo Commander of the Navy, Don Felipe Rivas, under which the captains would now take refuge, merely authorize them "to proceed south, to take in guano," neither of the charter parties makes mention of any point south; but, on the contrary, the contract with the Lizzie Thompson grants the privilege to the charterer of naming any of the ports of Peru, provided, that it be not one more to the north of Callao, and therefore embracing the Chincha Islands. Again, the contract for the Georgiana gives to the freighters a free choice of any of the ports on the whole coast of Peru, north as well as south. An irresistible consequence from these facts is that neither the charterers nor the chartered vessels had any intention of confining themselves to the southern ports, where alone there was the least shadow of an authority de facto, standing in opposition to the Government of the nation, whilst it was evident that the Captains had lent themselves to the schemes of the insurrectionists and had joined in accompliceship with them to defraud the treasury of the Republic, ready as they were to carry out their project, wherever the most inviting and least dangerous opportunity might offer.