tion, but absolute justice, required that express notice should be given of an intent to interfere with this use. Secondly, the communication of the decree, supposing the publication a sufficient notice, would not inform us of the interpretation that was practically to be put upon it. The preamble asserts a possession by Spain on the 10th May 1810 of the Falkland Islands, and of all the others near Cape Horn, including that of Terra del Fuego, and derives the right in the Republic to them, as forming part of the vice royalty of the Rio de la Plata by the effect of the revolution. It then erects those islands into a military and civil government, directs that the residence of the governor shall be on the island of Soledad, on which a battery is to be erected under the flag of the Republic, and directs him (the governor) to enforce the laws of the Republic on the inhabitants, and to see to the execution of the regulations of the fishery on all the coasts of the same.' What those regulations are, is not even hinted at. Did they apply to the inhabitants only? Such would be the natural construction. Did they exclude foreigners from the right of fishery? If so, some notice, some motive for inquiry, ought to have been given. The law of nations, founded in the principles of justice, requires that a right enjoyed for more than a half a century, even if only by tacit permission, be not withdrawn without notice; much less ought any penalty to be enforced for the exercise of it before such notice. Thus, even supposing the right of the Buenos Ayrean Government to be uncontroverted, we have a just cause to complain of the seizure of our vessels, and to demand restoration and indemnity. But our cause of complaint is rendered more apparent from the manner in which their officer, supposing him to be such, has executed their pretended right of seizure and confiscation, without trial. Without evidence he has imprisoned the crew, and converted the vessels and cargoes to his own use. He has done this after enticing them into his port by the offer of supplies and assistance, and as far as appears without any allegation of a breach of their fishery laws. To what extent those laws go, what fisheries they forbid, and in what seas or on what coasts, are all objects of serious inquiry, and must form an immediate object of your research. "Without any precise information on that subject, your instructions must be hypothetical; to remonstrate against them should they be found to contravene rights which we think ourselves entitled to by the law of nations. These will be briefly explained as applicable to the subject, and to the circumstances of the two nations. "The right of fishery, considered as to the place in which it is to be exercised, is that which is carried on solely on the high seas out of the jurisdiction of any nation; that which is carried on on the high seas, but within the distance of the shore belonging to another nation, which gives to it a customary jurisdiction; within bays of the sea included by an ideal line drawn from one headland to another-none of which require the use of the shores for the drying or preparing of the animals taken from the sea; and, finally, those fisheries which require the use of the shore for some of the operations necessary for the fishery, either to haul the seines, or to prepare or dry the fish. "The ocean fishery is a natural right which all nations may enjoy in common. Every interference with it by a foreign power is a national wrong. When it is carried on within the marine league of the coast, which has been designated as the extent of national jurisdiction, reason seems to dictate a restriction. If, under pretext of carrying on the fishery, an evasion of the revenue laws of the country may reasonably be apprehended, or any other serious injury to the sovereign of the coast, he has a right to prohibit it, but as such prohibition derogates from a natural right, the evil to be apprehended ought to be a real, not an imaginary one. No such evil can be apprehended on a desert and uninhabited coast; therefore such coasts form no exception to the common right of fishery in the seas adjoining them. All the reasoning on the subject of the ocean applies to the large bays the entrances to which can not be defended. "As to the use of the shores for purposes necessary to the fishery, that depends on other principles. When the right of exclusive dominion is undisputed, the sovereign may, with propriety, forbid the use of them to any foreign nation; provided such use interferes with any that his subjects may make of them; but when the shore is unsettled and deserted, and the use of it, of course, interferes with no right of the subjects of the power to which it belongs, then it would be an infringement of the right to the common use of the shores as well as of the ocean itself, which all nations enjoy by the laws of nature, and which is restricted only by the paramount right which the sovereign of the soil has to its exclusive use, when the convenience or interest of his subjects require it, or when he wishes to apply it to public purposes. It is true that he is the judge of this interest of his subjects, and of the necessity of using it for his public purposes, but justice requires that, where no such pretension can be made, the shores as well as the body of the ocean ought to be left common to all. "These principles seem to have dictated the articles in the treaties between the United States and England. The third article of the treaty of peace of 1782, declares that the people of the United States shall continue to enjoy, unmolested, the right to take fish on the Grand Bank, &c., and to dry and cure their fish in any of the unsettled bays, harbors and creeks of Nova Scotia, Magdalen Islands, and Labrador, so long as the same shall remain unsettled, but that when settlements are made, they cannot enjoy the right without a H. Doc, 551-56 previous agreement with the inhabitants or possessors of the soil. In the treaty of Utrecht, too, France is allowed the use of the unsettled shores, for the purpose of drying fish, by certain metes and bounds. But the most remarkable treaty on this subject is that entered into between Great Britain and Spain in 1790, by which the latter power stipulates not to make any settlements on either the Pacific or the Atlantic shores of America further south than those which were then made. A copy of this treaty, taken from a book printed in Spain, in the year 1801, by authority, entitled Coleccion de los tratados,' &c., is herewith delivered to you. This stipulation is clearly founded on the right to use the unsettled shores for the purpose of fishery, &c. and to insure its continuance. "But where the unsettled shore, although under the nominal sovereignty of one nation, is in fact possessed by independent uncivilized tribes, the right to exclude other nations from the use of the shores stands on a much less stable footing. This is the case with all the continent of South America, to its extremity, from the Rio Negro, or Rio Santos, in latitude 41°, and also with the adjacent islands of Terra del Fuego and Staten land. On the Pacific side, the Arancaunians, and on the Atlantic the Puelches, Patagonians, and other tribes, are perfectly independent. To the common use of these shores, therefore, there can be no reasonable objection. "How far the present Government of Buenos Ayres is entitled to the extent of territory necessary to establish a right over these fisheries, even supposing them to be attached to the sovereignty of the country, is another important question to which your attention must be turned, and which we have not the means of determining here. The vice royalty of Buenos Ayres under the Spanish Government comprehended several provinces on both sides of the La Plata; these now form separate governments as far as their unsettled state will allow us to judge of their condition. But that Patagonia was ever included in the Province of Buenos Ayres proper, is not believed. A project was formed by the Spaniards in 1778 of forming settlements there, but although the settlers came out to Monte Video, the project was abandoned, and the whole of the continent, and islands of Terra del Fuego and Staten land remain as unsettled and desert now as they were found at the time of their discovery. "From the foregoing facts, and principles applicable to them, you are instructed to press, in the negotiation you are authorized to open on the occasion: "1. The perfect right of the United States to the free use of the fishery on the ocean, in every part of it, and on the bays, arms of the sea, gulfs, and other inlets, which are incapable of being fortified. "2. To the same perfect right on the ocean within a marine league of the shore, when the approach cannot be injurious to the sovereign of the country, as it can not be on the shores which are possessed by savage tribes, or are totally deserted, as they are to the south of the Rio Negro. "3. To the same use of the shores when in the situation above described. 4. That, even where a settlement is made and other circumstances would deprive us of the right, a constant and uninterrupted use will give it to us. "It can not be denied that the United States, since the beginning of their independent political existence, and even while they were colonies, were, in common with other nations, in the undisturbed enjoyment of the whale and seal fishery, with the knowledge of Spain-and this, it is believed, applies particularly to the Falkland Islands— and at times when there were settlements on them as well as when they were deserted. "The object of establishing these points is to embody them into a treaty which you have herewith a full power to negotiate and conclude. The articles on this subject must acknowledge our right to the fisheries on the shores while they remain unsettled, and you may fix a certain extent from each settlement, not to exceed ten leagues each way. "With respect to the vessels seized by Vernet, if his acts are avowed, you are to justify their recapture (if they have been taken by our squadron), and demand their restitution if they have not, on the grounds hereinbefore stated to show the irregularity of his proceedings; and if his acts are disavowed, you are to give orders to the commander of the squadron to break up the settlement and bring him to Buenos Ayres for trial. "You will, in your demands on the subject of the fisheries, use firm but not irritating language. The President is fully sensible of the difficult situations in which the internal troubles of the Republic have placed its Government, and he does not attribute to an unfriendly disposition acts that, in ordinary times, might wear such an aspect; but he expects, from the similarity of our republican forms, and from a recollection of our early recognition of their independence, and our uniformly amicable disposition since, that, on consideration of our complaints, full justice will be done to our citizens, and that measures will be taken to meet the disposition he feels for a strict commercial union on principles of perfect reciprocity.” Mr. Livingston, Sec. of State, to Mr. Baylies, chargé d'affaires to Buenos See Mr. Livingston, Sec. of State, to Mr. Phelps, Dec. 25, 1832, 25 MS. A claim for salvage was made by Gilbert R. Davison, second sailing-master 66 skins which were taken by Vernet on the Harriet and which were recovered by Capt. Duncan. The court denied the claim, holding that an officer had no right, without the express orders of his government, to enter the jurisdiction of a country at peace with the United States and forcibly seize upon property found there and claimed by citizens of the United States, and that, as it was proved that Vernet was acting under a commission from Buenos Ayres, the seizure of the skins in question by Captain Duncan was unlawful. (Thompson, J., Davison r. Seal-skins, 2 Paine, 324.) See, however, Williams e. Suffolk Ins. Co., 13 Pet. 415. Dispatches have this day been received from Mr. Slacum, our consul at Buenos Ayres, by which it appears that one of the vessels captured by Vernet, the Harriet, has arrived as a prize at that place. She was claimed by Mr. Slacum, with damages, but under pretence that the facts had not been examined into she was detained at the date of his last letter, the 9th of December. "About the time of the arrival of the schooner, the United States sloop of war Lexington, Captain Duncan, put into Buenos Ayres, and after waiting some days for the answer of that Government, sailed, as we understand by advice from Montevideo, to the Falklands, with the purpose (avowed to the Government of Buenos Ayres) of protecting our commerce, and disarming the band whom Vernet had left with orders to seize all Americans who might be found there. “Should this purpose be executed, you are to justify it not only on the general grounds in your instructions, but on the further facts disclosed in the protest of the captain of the Harriet, which show the lawless, and indeed piratical proceedings of Vernet and his band— imprisoning the crews; leaving part of them on desert islands; sending others to distant foreign ports; refusing them the liberty to come with their vessel to the port where he sends her for condemnation; forcing others into his service; encouraging desertion from our vessels; robbing those which he seized of their cargoes, and selling them for his own use, without any form of trial or show of authority from the Government of Buenos Ayres for such acts; and finally, robbing shipwrecked mariners of the United States, and forcing them by threats into his service. These facts, which are clearly stated in the protests, and the further characteristic of his settlement, that it is composed of deserters from our ships, and renegades from all nations, governed by no laws but the will of Vernet, show clearly that it is an establishment dangerous to our commerce, which it is necessary in self-defence that we should break up, whether the Government of Buenos Ayres have a title to the jurisdiction of the islands, or have not. If they have the jurisdiction, they have no right so to use it as in any way to interfere with our right of fishery, established by long usage; but above all to use it in the irregular manner stated in the |