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 THE QUESTION 
 
 BlfiTW! KN 
 
 NEW 10RH, DECEMB1-': ^'a 
 
 MEW YORK: 
 
 VM. C. BRYANT & CO., PRINTERS, 41NASSATJ STREET, COR. LIBERTY, j! 
 
 1860. 
 
GIFT OF 
 JANE K. FATHER 
 
THE QUESTION 
 
 BETWEEN 
 
 tates mid f cm 
 
 NEW YORK, DECEMBER th, 1860, 
 
 NEW YORK: 
 
 WM. C. BRYANT & CO, PRINTERS, 41 NASSAU STREET, COR. LIBERTY. 
 
 1860. 
 
THE QUESTION BETWEEN THE UNITED 
 STATES AND PERU. 
 
 I 
 
 THE pending question with Peru has given rise to 
 commentaries from the press and from individuals, most 
 unfavorable to the character and reputation of that govern- 
 ment. And it could not be otherwise from the moment 
 that those commentaries are made, on information obtained 
 from correspondents who derive it from parties directly or 
 indirectly interested in the successful issue of the matters in 
 dispute. The unsettled condition of the Spanish American 
 Republics, and the excesses that, in many instances, in the 
 exaltations of internal struggles, have been committed, al- 
 though always promptly, and most willingly atoned for, 
 have inclined more happy and orderly nations to regard 
 with suspicion all the acts that those governments, in the 
 full exercise of their rights, have been called upon to en- 
 force, specially against foreigners, when their laws have 
 been violated, their peace disturbed, or their interests in- 
 jured. Many years of internal revolution and anarchy, 
 rapid changes in governments and constitutions, have im- 
 pressed foreign nations with a strong conviction against the 
 possibility of having peace and order firmly established in 
 the republics of South America; and, although, during 
 
 328818 
 
the late years, sonie of those republics have successfully 
 struggled against that revolutionary spirit, and overcome 
 it by force of arms, and of public opinion, as in Peru, that 
 conviction has not been altered, and the same ideas are 
 generally entertained as to the political condition of those 
 countries. 
 
 It is starting from this premise that foreign governments 
 show, in almost every instance, a decided tendency to 
 protect by their forces the interests of their citizens when 
 impaired by the acts of any party, be it a legal government 
 or a band of revolutionists, without stopping to maturely 
 consider whether those acts were brought about by guiltiness 
 on the part of their citizens, or by arbitrary behavior on the 
 part of the supposed offender. They generally presume that, 
 the country being in revolution, the internal laws not being 
 respected, it is a natural consequence that the rights of 
 neutrals should be violated, and, so disposed, they lend a 
 favorable ear to the partial and interested statement of their 
 complaining citizen, and enforce his claims with all their 
 power. What is the result of this policy ? That some for- 
 eigners, counting upon impunity, become the agents of the 
 revolutionists, and, trusting in the protection of their govern- 
 ments, embark in wild speculations to afford them means to 
 carry on their subversive plans. And so it is that those 
 republics, although receiving from the foreign element the 
 means of peace and prosperity, by the action of some con- 
 scientiousless speculators receive also the means of revolution 
 and disorder. 
 
 It is quite time that foreign governments adopt a line 
 of policy more congenial to the actual condition of the 
 South American republics, and that the press of more 
 civilized countries, throwing aside the pre-occupations 
 arisen from an order of things that no longer exists, be the 
 
medium of spreading the truth, be it favorable or adverse to 
 the governments under which they live, lending so its 
 powerful assistance to the cause of justice and fairness. 
 
 In the pending question of the United States with Peru, 
 several writers have suggested the expediency of using the 
 naval forces of the Union to bring her to terms, imitating so 
 the arbitrary and despotic way of settling differences of opin- 
 ion on principles of international law, adopted by some Euro- 
 pean nations in their disputes with weaker or defenseless 
 countries. To this we have only to say, that such a be- 
 havior would be unworthy of a great nation, and highly 
 disapproved by the majority of a noble people that sees in 
 Peru a sister republic trying to protect her rights against 
 the conspiracy of a few speculators, and seeking in that 
 people the moral support required by her cause, which is 
 the cause of justice and of self-preservation. The United 
 States do not require the employment of force to obtain 
 satisfaction, when their demands are grounded on justice ; 
 the history of their relations with Peru, shows most undoubt- 
 edly the consideration and respect with which all their 
 suggestions have always been received and attended to ; 
 and cases could be named where differences between the 
 government of Peru and the United States Minister have 
 been submitted to the decision of the United States Govern- 
 ment, and the same faithfully executed by Peru. 
 
 But the pending question is not one of dollars and cents, 
 as very maliciously has been suggested, but of a principle, and 
 of such an importance that its decision will settle, " whether 
 u a party of speculators, by taking temporary possession of 
 :t the guano deposits, can despoil Peru of her property and 
 " most valuable source of revenue, under the protection of 
 :t the American flag." It is on this point that we wish to call 
 the attention of the American public and press ; and to give 
 
them a thorough understanding of the question, we now 
 beg to submit a brief statement, taken from the official 
 correspondence, which we will also submit to the public's 
 appreciation. 
 
 II. 
 
 In the latter part of the year 1856, the city of Arequipa, 
 in the south of Peru, raised the standard of insurrection 
 against the legal government, and proclaimed General 
 Vivanco, then in exile, as head of the intended revolution. 
 A portion of the Peruvian navy joined in the movement. 
 A struggle commenced which ended with the attack and 
 surrender of Arequipa, that part of the insurgent navy, hav- 
 ing previously submitted to the legal government. During 
 this contest some places were entered by the revolutionists, 
 and abandoned on appearance of the government troops, 
 but they never occupied the capital of the republic, nor 
 was General Yivanco recognized by any member of the 
 diplomatic corps. On the contrary, they all remained in the 
 capital and continued their relations with the legal govern- 
 ment, which is the same existing up to the present time. 
 The revolutionists, having at their disposal a naval force, 
 took temporary possession of some of the seaports, and guano 
 deposits. The government and congress declared pirates the 
 insurgent ships, warned all nations and individuals against 
 making any contracts, purchases of guano, loans, &c., &c., 
 to the revolutionists, and protested in the strongest terms 
 against their acts, saving the responsibility of the nation for 
 the same, and making the parties contracting with them 
 

 responsible for all damages arising to the republic from those 
 contracts, or from any assistance given to the revolutionists, 
 As regards to the guano, there was not only this warning 
 from the government, but it has been publicly known that 
 its export and sale is made under special contracts, approved 
 by congress, with several mercantile houses for the different 
 countries where it is consumed; most of its proceeds are 
 applied to the payment of foreign debts, and the govern- 
 ment, by virtue of those contracts, is prohibited from dis- 
 posing of the guano in any other way. The regulations of 
 trade, which no government in Peru can alter without 
 congressional concurrence and sanction, specially forbid the 
 exports of guano from any other deposits but those at the 
 Chincha Islands, and by the same, no ship can load guano 
 without taking, previously, a license from the Custom-House 
 at Callao. 
 
 It was under these circumstances that parties, in Iquique 
 and Valparaiso, contracted with supposed agents of the 
 revolutionists the purchase of a number of tons of guano, 
 and that the American ships Georgiana and Lizzie Thomp- 
 son, according to their masters' assurances, were chartered 
 to load at Playa de Lobos and Pavellon de Pica, points in 
 the coast of Peru, not only not opened to foreign trade, but 
 uninhabited, and places from which the exportation of guano 
 has always been specially forbidden. Whilst loading, the 
 ships were taken by a Peruvian man-of-war and brought 
 over to Callao, where a suit before the proper courts of jus- 
 tice, commenced by the government against them, resulted 
 in their confiscation in behalf of the captors, according to 
 the laws of the country. This decision was sustained not 
 only by the revenue laws, and by the laws enacted by con- 
 gress before and at the commencement of the revolution, 
 but by the principles of common and international law. 
 
The ships were guilty of smuggling, by breaking the 
 revenue laws; of robbery, by making themselves parties to 
 an attempt to take away the property of the nation against 
 the proclamations of the legal government and the special 
 laws of congress, which are, unquestionably, the proper 
 representatives of its owners ; and finally, they were guilty 
 of a breach of neutrality, because, by being the medium of 
 transporting that property, they gave to the revolutionists 
 the means of raising funds to make war against the constitu- 
 tional government. It is evident to any unprejudiced mind, 
 that no reasonable plea could be made to exculpate these 
 ships, since the revenue laws of Peru are well known to all 
 nations, and especially in the United States, connected with 
 Peru in several branches of trade ; since the proclamations, 
 laws, and protests of the constitutional government and 
 congress, had been published there as well as here ; since 
 the regulations of the guano trade are known everywhere, 
 and particularly in the United States, where they have been 
 published by the United States Government ; since the 
 United States not recognizing in Peru other govern- 
 ment than the one at Lima, their citizens owed submission 
 and respect to the laws of that government, so far as their 
 acts were free and independent from all coercion, and were 
 bound not to acknowledge, from their own will, any other 
 government in Peru ; and since, at all events, they were 
 obliged to observe the laws of neutrals, by not committing, 
 voluntarily, acts that not only favored the cause of a 
 revolter, but were in open violation of the laws of the coun- 
 try, previous to the revolution. The ships, therefore, in 
 engaging in this illicit traffic, were induced to it, either by a 
 profit, which, in the opinion of their managers justified the 
 risk that they were to run, or by a confidence in the respon- 
 sibility of the charterers to make them good their damages, 
 
9 
 
 in case of failure. At any rate, it is clear enough that they 
 could not look to diplomatic interference to shield them in 
 such illegal pursuits, because, from the moment that they 
 contracted in collusion with authorities not recognized by 
 their own government, and violating the special provisions 
 of the laws and regulations of trade which governed the 
 traffic between Peru and the United States, they could have 
 no reason to anticipate a protection against the penalties 
 to which they made themselves amenable by their free and 
 voluntary acts. 
 
 III. 
 
 The United States Minister in Peru, in defence of the 
 masters of the Georgiana and Lizzie Thompson, addressed a 
 communication to the Peruvian Government for the purpose 
 of proving 
 
 1st. That neither the vessels nor their captains had partici- 
 pated in any criminal or scandalous contraband ; and, 
 
 2d. That the arrest of the vessels and of their officers was 
 not in virtue of a perfect right. 
 
 The Minister of Foreign Relations vindicated the rights of 
 Peru, and victoriously showed the inconsistency of Mr. Clay's 
 arguments. It is indeed very remarkable what illogical as 
 well as undiplomatic style of argument, is adopted by that 
 gentleman to arrive at a conclusion exactly opposite to what 
 ought to be expected from the plain laws of common sense, 
 2 
 
10 
 
 Mr. Clay begins by acknowledging u that the great principle 
 " upon which all republican institutions are grounded is, that 
 u all power resides in the people and emanates from the 
 u people, which appoints or selects the executive portion of 
 " the government. That popular suffrage is the regular and 
 " constitutional way of expressing this selection, but that, 
 " unfortunately, in Peru the changes that have occurred in 
 " her administration have been brought about by a revolu- 
 u tion. This revolution has commenced, almost in every 
 u instance, by an armed insurrection, whose chief, after 
 " having secured the assistance of a number of partisans, has 
 " proclaimed himself, or been proclaimed by them President 
 " ' ad interim," 1 has appointed a cabinet, given decrees, and 
 " exercised other acts of executive power. That the neces- 
 " sary result of these acts has been a civil war v during which 
 u the revolutionists have not ^hesitated in appropriating to 
 " themselves the national property to maintain their cause, 
 " and that the party of Vivanco had followed the same steps 
 u during the then actual revolution." 
 
 Professing^ as we do, the same principles with Mr. Clay as 
 regards to popular sovereignty, and believing that all power 
 emanates from the people, we lament with him the unfortu- 
 nate condition of some of the Hispano-American Republics, 
 which are yet struggling to emancipate themselves from the 
 yoke of bastardly ambitions, and from the turbulent spirit that 
 devours their vitality. To consolidate peace and order, and 
 promote prosperity in those unhappy countries, they look to 
 the moral support and friendly advice of foreign nations, and 
 especially to the United States, who, having shown to them 
 the way towards independence, and impressed them with love 
 and enthusiasm for democratic institutions, have naturally be- 
 come their allies and protectors. Better prepared, by edu- 
 cation, internal prosperity, and municipal institutions, for 
 
11 
 
 self-government than Hispano-America, the United States 
 consolidated their independence, and national prosperity, 
 without the internal struggles that those colonies had to over- 
 come ; but, in their misfortunes, they deserve sympathy and 
 consideration because their struggles are for the consolida- 
 tion of republican institutions, against theocratical influ- 
 ences ; of popular rights, against military despotism ; of con- 
 stitutional liberty, against fanatical oppression. Has Mr. Clay 
 forgotten the causes that brought about the popular insur- 
 rection that gave birth to the present government of Peru ? 
 The abolition of slavery, the extinction of the ominous 
 Indian tribute, the practical exertion of municipal rights, the 
 reductions in the tariff, the extended facilities to foreign 
 trade, and the constitution of 1856, are the most prominent 
 fruits of this administration. The vote of the people ap- 
 pointed the National Convention that framed the constitu- 
 tion, and the same vote elected, by a great majority, the 
 actual President of Peru. Can this be called a self-pro- 
 claimed President, or a chief appointed by a number of his 
 armed partisans? Certainly not. If, "all power resides in 
 the people, and emanates from the people," no power is more 
 legal, nor appointment more in conformity with " the 
 great principle upon which all republican institutions are 
 grounded," than that exercised by, and conferred upon the 
 present Government of Peru. 
 
 Let us examine now the relative position occupied by 
 Vivanco's party. 
 
IV. 
 
 The constitution of 1856 destroyed the absurd privileges 
 given to the ecclesiastical and military classes, under the 
 name of fueros, submitted them to the common law, and re- 
 quired from the clergy an oath of allegiance to the laws of 
 the country. These classes, wounded in their privileges, 
 sought for the means of pulling down the government 
 through "an armed insurrection," but not finding them 
 neither in the regular army, nor among the populations of 
 the capital and other places, directed their labors to Are- 
 quipa, a city where the lower class is numerous and excit- 
 able, and somewhat fanatical. General Yivanco, then in 
 exile, has always been distinguished by his despotical polit- 
 ical ideas ; his principles of government are reduced to the 
 theories of " 1'Etat c'est moi ;" and, impressed with a deep 
 conviction of the purity of his intentions, as well as of the 
 soundness of his judgment, he does not acknowledge in the 
 nation more rights than what he may be willing to allow, 
 free from all legal control, and requires implicit and passive 
 obedience from all to his commands. Like all despots, he 
 caresses the clergy, seeing in their influence a medium of 
 political abatement, and the clergy, very properly, elected 
 him for chief of the insurrection. Arequipa revolted and 
 proclaimed Vivanco, and a part of the navy followed, moved 
 by causes that it is better not to expose. 
 
 No other town, no city, joined in this movement ; without 
 means of resistance, many of them submitted, when the re- 
 volters entered them, but immediately returned to legal 
 obedience when evacuated. Others, like Piura, and Callao, 
 offered a resistance worthy of the cause they defended, and 
 
13 
 
 all contributed to restore order and conquer the insurrection. 
 What principle was then sustained or invoked by Yivanco ? 
 None. Excited and invoked by the privileges of one class, 
 his flag was his will, his programme was his personal eleva- 
 tion ; his dominion was limited to the actual occupation of 
 his forces, and his authority was acknowledged only by his 
 accomplices. And this is exactly the position given to him 
 by Mr. Clay in the above cited words. Can the law of na- 
 tions invest a man so situated with the rights of a belliger- 
 ent ? For the sake of humanity and of every principle of 
 common sense, we say no ! ten times no ! Yivanco was the 
 head of a mutiny. Whether it lasted two years, or two 
 hours, the time is immaterial ; it does not alter the principle 
 nor affect, in the least, the respective position of the parties. 
 Peru had not lost her place in the catalogue of nations, nor 
 her rights as such, and it is the most absurd of human inven- 
 tions to pretend to divest the legal possessor of those rights, 
 to invest them, on the head of a band of marauders. 
 
 It is true that many of the governments that 'have existed in 
 Peru have had their origin in an armed insurrection, but the 
 fact that they have become governments, proves sufficiently, 
 by itself, that they had the assistance and co-operation of the 
 people, as they have, without other means but the popular 
 support, overthrown a government abundantly supplied with 
 all the elements required to fight successfully. Revise the 
 history of the last twenty years, and the truth appears more 
 clearly. Torrico's government overthrown by Vidal, Yivanco 
 by Castilla, Echenique by Castilla. And why this, when 
 those governments had the regular army and the navy, and 
 all the property of the nation, including the guano deposits, at 
 their command? Because Torrico and Yivanco represented 
 despotism and force, whereas Vidal and Castilla fought for 
 the constitution and the laws, for the rights of the people, 
 
14 
 
 and universal suffrage. And it is for this very same reason, 
 that now, when the legal government, by the most con- 
 temptible treachery, lost the guano deposits and other means 
 of revenue, when all of them passed over to the arbitrary 
 control of the insurgent Yivanco, and when this found in a 
 few strangers co-operation, and help denied to the former, 
 it is, we say, for that reason that the insurgents were sub- 
 dued, and the legal government re-affirmed, because its 
 cause was the cause of the people. 
 
 The speculators, or their advisers, ought to have been gov- 
 erned by this principle, viz. : " That in Peru, when a revolution 
 u is made against oppression, and in favor of the true interests 
 " of the people, that revolution is most undoubtedly bound 
 " to triumph, no matter what resistance may be offered to 
 u it ; and vice versa, that all revolutions purporting to de- 
 " stroy the constitutional rights of the people must neces- 
 " sarily succumb irrespective of the means that may muster 
 u to aid its ends." It is no wonder that persons looking only 
 at the surface of events, should think that all revolutions are 
 bound to succeed, because such has been the result in a ma- 
 jority of cases; but if they stop to inquire into the causes 
 for these successes, they will find them in the popular rights 
 that they have proclaimed, when the people has been most 
 oppressed by those self-proclaimed presidents. 
 
15 
 
 V. 
 
 From what has been stated, it is plain that the govern- 
 ment of General Castilla exercised all the incumbencies of a 
 national government in its relations with foreign countries; 
 not in virtue of an acknowledgment from them as govern- 
 ment de facto, and as a matter of expediency, but in virtue 
 of its legality as the constitutional government of Peru, 
 which had the right to be recognized by the powers that 
 formerly recognized and promised to respect the independ- 
 ence of Peru, as a sovereign nation. None of these powers 
 had then the right of revoking their act of recognition to 
 that government, nor to change it, while it existed, to another 
 party. Under such circumstances, a revolution, no matter 
 to what extent it spread, nor the principles that it pro- 
 claimed, could not be officially regarded by foreign nations, 
 but as an internal commotion, not affecting in the least their 
 relations, nor those of their citizens, with Peru, because this 
 country was, " so far as respects the effects of its political 
 " condition upon its intercourse with foreign powers, in a 
 " state of peace." Nor could it be otherwise, because, if 
 governments constituted in a legal manner are responsible 
 to foreign nations for all trespasses upon the rights and in- 
 terests of their subjects, no matter whether the perpetrator 
 is a legal authority or the deputy of an usurper, this respon- 
 sibility is mainly based on the impossibility of the foreign 
 nation, in virtue of its recognition of the authority of the 
 government, to treat with a revolter, or punish him, exerting 
 an act of internal jurisdiction. As Mr. Clay very properly 
 remarks, a chief, "with the assistance of a number of parti- 
 " sans, exercises acts o executive power" although not in 
 
16 
 
 possession of the government, and, on the contrary, op- 
 posed by it and by a majority of the people. But this 
 chief is a revolter, his acts are repudiated by the nation, 
 and, if defeated, is irresponsible for damages caused under 
 his authority. For the very reason that he is chief of a 
 number of partisans, he is not recognized by foreign 
 nations, because such a recognition would entirely save the 
 responsibility of the nation for his acts, and, failing in the 
 ends of his revolt, the injured interests would be left unin- 
 demnified ; whereas, on the contrary, if he succeeds, he is 
 bound to fulfill the obligations incurred by a regularly con- 
 stituted government, according to the law of nations. The 
 argument, then, of Mr. Clay is contra producentem, because if 
 a chief of rebels lacks of competent authority to treat in the 
 name of the nation " according to the principles on which 
 "republican institutions are grounded;" if he can contract 
 no obligations for want of the proper responsibility, it is a 
 natural consequence that he cannot confer rights, nor effect 
 acts that involve a delegation of popular sovereignty which 
 he does not possess, because "his authority does not eman- 
 " ate from the people." 
 
17 
 
 VI. 
 
 It has been argued in the official correspondence on this 
 subject, whether Peru was in a state of civil war during the 
 mutiny of the city of Arequipa, and two or three ships of 
 the navy. In the language of Attorney-General Black, 
 u when the people of a republic are divided into two hostile 
 u parties, who take up arms and oppose one another by mili- 
 tary force, this is civil war." If this principle is correct, 
 we can well assure that there was no civil war in Peru, be- 
 cause the people were not divided into two hostile parties, 
 nor had taken up arms to oppose one another. 
 
 The legal government was recognized and obeyed through 
 all the republic, except in the places occupied by armed 
 bands of Vivanco. They took up arms against them in 
 every instance, and it was the gallant people of Callao that 
 defeated, by themselves, the numerous forces of that chief 
 who attempted to take that town, anticipating an easy vic- 
 tory. All the cities in the interior, in the north and centre 
 of the republic, where there were no armed forces, re- 
 mained faithful to the legal government, and armed them- 
 selves to protect their rights. There was no division in the 
 people when free from coercion, and, therefore, there was 
 no civil war. A foreign nation could not legally recognize 
 the condition of Peru as in a state of civil war, because there 
 was no identity of positions, nor circumstances, between a 
 legal government and a number of armed partisans obeying 
 the discretional authority of their chief; because the autho- 
 rity of this chief was exclusively circumscribed to the 
 ground occupied by his armed bands ; because the territory 
 over which he pretended to exercise jurisdiction was so 
 
 small, both in extent and population, as compared with the 
 3 
 
18 
 
 population and extent of Peru, that there was not the least 
 shadow of possibility of becoming an independent govern- 
 ment; because the chief himself did not proclaim more 
 principle than self-elevation ; and, finally, because foreign 
 nations, by a practice of forty years, have themselves laid 
 down the principle of not acknowledging the effect of inter- 
 nal dissensions in cases of reclamations and indemnities of 
 their citizens. To assume that foreign governments have 
 the right of declaring a country in a state of civil war, and 
 acknowledge two governments in it, without being subject 
 to any principle of international law previously laid down 
 and generally consented to, without establishing any rules 
 marking the difference between a civil war, a military insur- 
 rection, a mutiny, or a revolt, and without marking the 
 limits of rights and obligations of the internal belligerents, 
 which could not be absolutely the same as those of belliger- 
 ent nations inter se, is an absurd pretension resisted by 
 reason, and by the most common suggestions of common 
 sense. Better have the merit of frankness, and say to the 
 world, u With the weak I will enforce their obligations with- 
 " out respecting their rights." Such a position is untenable, 
 and it is not in the present age when we ought to expect a 
 sanction to the doctrine of force against justice, 
 
19 
 
 VII. 
 
 But if it is unlawful for a government to make indiscrimin- 
 ately such a declaration, and which, by the bye, is the only 
 one that would authorize its subjects to assume the rights of 
 neutrals ; how unreasonable would it not be to allow such a 
 privilege to private individuals ? Are the rights of nations, 
 the worth of treaties, and the friendly relations between 
 different countries, to be left at the mercy of the interests of 
 a number of speculators ? Can irresponsible , persons, unac- 
 quainted with the most common principles of international 
 law, decide, by themselves, whether their governments are 
 to recognize one, two, or more executive powers in another 
 country ? Can they compel their governments to remodel 
 the law of nations so as to suit their speculations ? Can they 
 act as supreme judges in the internal dissensions of a foreign 
 country ? Can they decide, by themselves, taking an antag- 
 onistic position to their own governments, what is the legal 
 government of a foreign nation, and oblige theirs to abide 
 by their decision ! Can they authoritatively say, when it 
 shall be lawful for them to disregard the laws of a govern- 
 ment recognized by theirs, and/reeZy, and of their own will, 
 act in direct contravention to them ? Let the American 
 people answer to these questions. The President of the 
 United States, his Attorney-General, and his Minister in Peru, 
 by defending and protecting the acts of the masters of the 
 Georgiana and Lizzie Thompson, imply a justification of the 
 assumption of these unwarrantable authorities, because these 
 masters knew that Ilivas was acting under the name of a 
 revolter, and they fredy and voluntarily acknowledged him 
 as a legal authority ; they knew that the laws of the country 
 forbade the export of guano from all places except the Chin- 
 
20 
 
 cha Islands, and freely and voluntarily undertook to export 
 it from Pavellon de Pica and Punta de Lobos ; they knew 
 that these places, by the regulations of trade, were closed to 
 foreign commerce, and freely and voluntarily went to them 
 with their ships ; they knew that the Custom-House at Cal- 
 lao was, by law, the only power authorized to grant permits 
 to load guano, and freely and voluntarily took one from a 
 party in Iquique that had no authority to grant them ; they 
 knew that the exportation of guano could be carried on by 
 law, only by the vessels under contract with the government 
 or its agents, and freely and voluntarily made contracts with 
 other parties; they knew that the legal government, the 
 government recognized by the United States, was at Lima, 
 and disobeyed by the revolters of Iquique, and they freely 
 and voluntarily assumed Yivanco to be the supreme govern- 
 ment of Peru ; they knew that the exports of guano for Great 
 Britain could not be made but by the legal agents of the gov- 
 ernment, and freely and voluntarily bound themselves to take 
 it out for other parties ; they knew that this guano to be 
 taken by them was sold by a party that had no legal 
 authority to sell, and that the value of the sale was to be 
 received by the revolters, and freely and voluntarily con- 
 tributed to carry on this spoliation ; and finally, they knew 
 that the legal government had declared its decision to enforce 
 the regulations and laws by which their ships were subject 
 to confiscation, and their persons to punishment, and freely 
 and voluntarily exposed themselves to these penalties. 
 
 In the face of these facts, and of the force of the principles 
 laid down, can it be satisfactorily maintained, that "the 
 u ships had not participated in any criminal contraband, and 
 " that their arrest, and that of their officers, was not in virtue 
 " of a perfect right ?" 
 
VIII. 
 
 The supposition that Peru was in a state of civil war, 
 which gives to the contending parties the rights of bellig- 
 erents, and to foreign nations the rights of neutrals, does not 
 justify the position taken by the present government of the 
 United States in the case in dispute. Setting aside the ne- 
 cessity of a previous recognition by this government to 
 enable its subjects to claim the rights of neutrals a necessity 
 very ably demonstrated in the official correspondence it is a 
 well-known principle of international law, that- those rights 
 are violated when neutrals aiford to the enemy the means for 
 carrying on the war, and also when they undertake to carry 
 on a commerce forbidden in time of peace. The masters of 
 the ships in question, by contracting to convey the guano 
 to places where it was converted into money, afforded to the 
 enemy the means of carrying on the war. Whether the con- 
 veyance w^as made on account, as some of the crew stated, of 
 the Peruvian Government de facto, or on account of parties 
 that purchased from it, it is entirely immaterial. Guano, the 
 property of the nation, is comparatively valueless without 
 the means of transport, and whilst in the deposits could not 
 aiford any funds to the possessor of it. By removing it from 
 there, and taking it out from a territory that was liable to fall 
 into the hands of the other belligerent at any moment, the 
 ships gave to Vivanco resources that he could not have ob- 
 tained otherwise, Guano, in the revenue sources of Peru, 
 occupies the same place as the gold in the public treasury of 
 the United States, with the only difference that this, once re- 
 moved by a belligerent, could not be identified, whereas the 
 other could, at any time. But neither the one nor the other 
 can be considered, in any case, in a war, as neutrals' property, 
 
and less so when caught in the act of shipment within the 
 national jurisdiction and properly identified. We have not 
 seen any writer on public law claiming the well-known prop- 
 erty of a belligerent as neutral property, and giving to it 
 the protection of the rights of neutrals. 
 
 It has not been uniformly decided which are the 
 articles to be properly considered as contraband of war; 
 in some cases its classification has been made by treaties 
 between nations in time of peace ; but in most of them 
 the belligerent powers have published resolutions stat- 
 ing which are the articles or merchandise that they 
 will seize under neutral flags, as such contraband. That 
 articles declared contraband of war, and not objected to as 
 such by neutral powers, are subject to seizure, is a principle 
 admitted by all nations, as also the confiscation of the ships 
 carrying them has been very generally practiced. The legal 
 government of Peru published, on the 1st of April, 1857, a 
 decree approved by the national convention, one of the pro- 
 visions of which was, that u all guano exported, or thereafter 
 "to be exported, from the Chincha Islands, or from any other 
 ' deposit of Peru, by disturbers of the public order, or by 
 u 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." The government had already, in February of the 
 same year, published all the laws and regulations regarding 
 the exports, &c., &c., of guano, and the penalties incurred by 
 those violating them ; and on the 28th, it passed a circular 
 to the diplomatic and consular agents of the republic 
 abroad, ordering a publication of those laws " to avoid all 
 pretext that the contrabandists might allege." These publi- 
 cations were made in France, England, Belgium, Spain, 
 
United States, and Hispano American Republics. The Min- 
 ister for Foreign Affairs intimated also to the diplomatic 
 corps at Lima, the government's decision "to persecute and 
 "seize" the vessels making contraband of guano, without 
 receiving the slightest objection from them to this deter- 
 mination. These notifications were made more than ten 
 months before the capture of the ships Georgiana and Lizzie 
 Thompson, and time enough had elapsed to ascertain the 
 objections that the position assumed by the Government of 
 Lima might have met with from foreign powers. None were 
 made, and in fact none could be ; because that government, 
 be it considered as the only legal and recognized Government 
 of Peru, or as a belligerent, had the undisputed right, based 
 on the laws of the country and on international law, to seize 
 and capture foreign vessels laden with an article that had 
 been declared to be contraband, and which declaration had 
 not been objected to by the neutrals. But even in the sup- 
 position that such declarations had not been made by the 
 Government of Lima, and that the United States were not 
 willing to recognize guano to be contraband of war, so far as 
 the results of its exports go, by giving to the enemy the 
 means of carrying on the war ; there is yet a principle of 
 international law sanctioned in all cases that we know of, and 
 this principle is " that neutrals cannot undertake to carry on 
 "a commerce forbidden in time of peace." 
 
 The recognition of a state of civil war, and investment 
 of the contending parties with the rights of belligerents, 
 do not give to neutrals rights and privileges that they 
 did not possess whilst the nation declared in such 
 condition was in a state of peace, and, therefore, 
 a commerce that was illicit before the war, continues 
 to be so during it, and those engaged in such for- 
 bidden trade are amenable and responsible to the laws for 
 
their acts. The laws and regulations of trade of Peru before 
 the war, enforced by all governments, whether de jure 
 or de facto, strictly forbade all traffic in guano ; its exports 
 were limited to the Chincha Islands, and only on account of 
 the government ; all vessels were forbidden, under severe 
 penalties, from approaching any of the guano deposits except 
 the Chinchas, and this, having previously obtained a license 
 from the Custom-House at Callao ; no authority had power 
 to grant permits for loading at any other place. Pavellon 
 de Pica and Punta de Lobos were places closed to the 
 foreign trade, and no executive authority, by the said laws 
 of Peru, has, in time of peace or war, power to open ports to 
 the said foreign trade. 
 
 They are indispensable conditions of neutrality, not 
 to commit acts between the belligerents that were not 
 lawful before the war; not to acknowledge, in any of 
 them, powers that they did not possess when invested with 
 peaceful and unrivalled executive authority of the country ; 
 not to modify the relations with one of the belligerents in 
 such a way as to injure the interests of the other by giving to 
 one rights without obligations, and to the other obligations 
 without rights ; not to admit from the one privileges that 
 involve an acknowledgment of rights, without consenting 
 in the other the reciprocal power to counteract the injuries 
 that he may receive from the exercise of those rights. Neu- 
 trality, to be respected, must be absolute ; otherwise its objects 
 are defeated and its rights void. The belligerents, in a civil 
 war, can have no more rights or authority than what a regu- 
 larly constituted government could have according to the 
 laws of the country ; neutrals cannot acknowledge in them 
 more power than what the latter possess, and the proper ex- 
 tent of such a power can only be ascertained by those laws. 
 
 The law of nations, by forbidding to neutrals, in their 
 
relations with belligerents, to do what was illicit when the 
 belligerents were at peace, has established a solid principle 
 to govern them in these cases. Secretary Cass has confirmed 
 this principle by stating, in his dispatch of the 22d of May, 
 1858, that "Peru, so far as respects the effects of its 
 "political condition upon its intercourse with other powers, 
 "was in a state of peace." It is equivalent to say that, 
 during the civil war, it was not lawful for the citizens of the 
 United States to do what they could not do when the country 
 was in a state of peace, or, in other words, that the laws and 
 regulations that governed the commercial relations of the 
 United States with Peru before the war, were to be consid- 
 ered as governing and binding them during the war. But 
 the captains of the Georgiana and Lizzie Thompson, by their 
 free and uncontrolable action, undertook to do what was for- 
 bidden by those laws and regulations, in behalf of one of the 
 belligerents, and in spite of their knowledge of those laws, 
 and of the warnings published through the world ; they in- 
 vested parties with authority that they did not have under 
 the rights of belligerents, and willingly volunteered them- 
 selves, for the sake of a high freight, to trespass upon the 
 limits imposed upon them as neutrals, renouncing thereby 
 their rights as such. The capture and confiscation of these 
 ships was, therefore, made by the government of Lima, in 
 virtue of a perfect right most unequivocally belonging to it 
 as a belligerent, as well as the only legal executive power of 
 Peru. 
 
26 
 
 IX. 
 
 Our arguments, so far, have been grounded on the suppo- 
 sition that a state of civil war invested Yivanco, as a belliger- 
 ent, with the rights as such ; we believe to have proved that 
 these rights were not absolute, because a belligerent cannot 
 claim more authority than what is possessed by a regularly 
 constituted government, according to the laws of the coun- 
 try, and even if he claimed more, neutral powers, by the 
 law of nations, are bound not to recognize them, at least 
 during .the transitory state of war. Yivanco had no author- 
 ity to annul the laws and regulations of trade of the nation ; 
 to open ports to foreign flags for commerce, or for any other 
 purposes ; but presuming, for a moment, that he had such 
 an authority, where is his decree annulling those laws, and 
 throwing open to foreign flags the places of Pavellon de Pica 
 and Punta de Lobos ? Where have they been published ? 
 Where is his resolution investing Bivas with power to so 
 alter the fiscal laws of the country ? Nobody has seen them, 
 because he never issued such revelant proof of his folly. 
 The masters of the ships in question never saw them; 
 although knowing that what they were to do was forbidden, 
 it is natural to presume that they ought to have asked for 
 the act from the belligerent that raised that prohibition. 
 
 They candidly accepted the assurance given by a man that 
 commanded a ship of war, publicly declared a pirate, that 
 all ivas right, and took his permit to go where, by the laws 
 of the country before the war, and by the law of nations as 
 neutrals, they were forbidden to go, What explanation can 
 be given for this gross carelessness and candid confidence ? 
 The expectation of being able to take in their cargoes, and 
 sail under the protection of the pirate ship before they could 
 
27 
 
 be detected the confidence in being able to run away, in 
 case of emergency, as other ships did at the Chinchas, on 
 approach of the government cruisers. It was a risky but 
 profitable business, and, in their judgment, the chances in 
 their favor were such that they considered themselves justi- 
 fied in attempting it. Their ignorance, as to the risk, cannot 
 be alleged, not only for the reasons already stated, and for the 
 evidences before them, and which they have not attempted 
 to deny, but because the consignees of the G-eorgiana, at 
 Valparaiso, in their letter of December 15th, 1857, to her 
 captain, said to him, writing about freights, that "some 
 charterers were offering to take the risk of the Chincha 
 Islands, they being in possession of the revolutionary party, 
 but that they would not advise him to accept such a char- 
 ter." This letter, which will be found with the documents 
 that we publish, was taken on board the Martina a 
 vessel captured robbing guano after the revolution was 
 entirely ended. This vessel belonged to a company 
 formed at Valparaiso for the purposes of robbing guano, and 
 it is very singular how the aforesaid letter was in their pos- 
 session, unless we presume that the Georgiana was char- 
 tered to the same company, and that the captain remitted it 
 to prove " the risks" that he was to run, and the consequent 
 necessity of compensating them properly. The Department 
 of State has this letter, and we must believe that this point 
 has been satisfactorily explained to the United States Gov- 
 ernment. 
 
X, 
 
 The official correspondence printed hereunto, and to which 
 we earnestly call the attention of the American public and 
 press, shows the position taken by the Peruvian Govern- 
 ment in this question, and the authorities on which it has 
 relied to sustain it against the demands of the United States 
 Government, and the not less ardent desires of that govern- 
 ment to satisfy all the requirements made in the name of a 
 nation that Peru is in the habit of cherishing and respect- 
 ing. Not satisfied with the intimate and unanimous convic- 
 tion of the Cabinet, and the most prominent men of the 
 country as to the justice of her position, and notwithstanding 
 that the Government of Chili most unhesitatingly acknowl- 
 edged the rights claimed by the legal Government of Peru, 
 " declining to extend its protection to the masters or owners 
 " of the Chilian vessels captured by the Government of Peru, 
 u in which it recognized & perfect right to seize and confiscate 
 " them" Peru sought the opinion of American jurists, emi- 
 nent by their knowledge and sound judgment, as well as for 
 their sterling integrity, and that opinion which we also pub- 
 lish, has been a full confirmation of her views and position. 
 The French Government, on deciding on the claims of Mr. 
 Freraut, charterer of the American ships, or at least of one 
 of them, has also confirmed the rights claimed by the legal 
 Government of Peru, as will be seen by the note of Count 
 Walewsky to the Charge d' Affaires at Lima. Under these 
 circumstances, and however great may be the desire of 
 General Castilla's Government to receive with regard the 
 claims set forth by the United States, Peru could not sur- 
 render voluntarily her rights as an independent nation, and 
 
29 
 
 accede to the initation of a principle that would give up her 
 future and the means of her prosperity, to the bold grasp of 
 a parcel of speculators ; she could not assent to an invasion 
 of sovereign rights which she is entitled to have respected 
 by more powerful nations, so long as she is included in their 
 number ; she could not consent to an abrogation of princi- 
 ples of international law, confirmed by an international prac- 
 tice of centuries, to the injury of those unfortunate countries 
 that fight yet to obtain order and liberty. Her cause is the 
 cause of Hispano-America, and might be the cause of the 
 United States, if (which God forbid) internal commo- 
 tions should most unfortunately come to disturb the peace 
 and prosperity of a country, the honor of the present age. 
 To judge of the results of the enforcement of the principles 
 advanced by Mr. Buchannan in the pending question, we 
 must divest ourselves of our power and peaceful condition, 
 examine what an effect they would have in the United 
 States, in case of an internal commotion, and decide, if 
 similarly situated, the lawful government of the Union is 
 willing to abide by the same theory, allow to the revolters 
 rights of belligerents, and consent to the spoliation of the 
 national property by a parcel of speculators, assisted and 
 abetted by foreign merchant ships, whose managers know 
 that what they are doing is against the laws of the Union. 
 To acknowledge in a revolter belligerent rights, and by de- 
 claring a country in a state of civil war, give to it two gov- 
 ernments with equal authority and obligations, it is also 
 necessary to absolve the one from the damages done by the 
 other, and declare both irresponsible for acts not within their 
 respective jurisdiction ; to divide the national obligations 
 previous to the war, and claim, during the war, one-half of 
 them from each, without right to claim the whole of them 
 from only one; to abandon all claims from the successful 
 
30 
 
 party for actions of the vanquished. It is in fact, in a prac- 
 tical case, to release the liberal Government of Mexico, if 
 victorious, from indemnity for all damages that the doings 
 of Miramon may have caused to American citizens. Are 
 the United States willing to pursue such a line of conduct 
 in their foreign relations, and in their domestic dissensions ? 
 Be it so, if they choose. They have the power, and the 
 weak must submit ; but let them proclaim it, and let the 
 practice confirm the theory. A principle must be weighed 
 in all its phases before it is sustained ; once adopted, must 
 be followed in all its consequences, as otherwise it is no 
 principle at all. The rights that it sanctions are compen- 
 sated by the obligations that it imposes, and the claim of 
 the former necessarily involves the recognition of the latter. 
 
31 
 
 XL 
 
 The action of Peru, in the seizure of the Georgiana and 
 Lizzie Thompson, was legal, according to her own laws and 
 the law of nations. The courts of justice that confiscated 
 these ships acted in strict conformity to those laws. The 
 owners or masters had the right, agreeably to the principles 
 of international law, to complain of the capture, and defend 
 themselves, only before those courts, and invoking the laws 
 of the captor. They exercised this right ; there was no de- 
 viation of justice, and they were condemned with perfect 
 legality. The United States, then, by the law of nations, 
 had no right to interfere, and Peru, by the same law, and by 
 the laws of the country, had no right to alter that decision. 
 
 The Government of Peru, guided by a spirit that we 
 cannot blame, seeing its reasons unattended to, and re- 
 marking a persistency that might lead to disagreeable re- 
 suits, declared to the United States Government its readiness 
 " simply to submit the question raised by the capture of the 
 " ships Lizzie Thompson and Georgian^ to the decision of 
 " any European nation whatever, and to leave to his Excel- 
 " lency the President of the United States, the choice of 
 " such power, as well as the prefixing of the time for carry- 
 " ing the thing into effect." What has been the answer 
 given by the President of the United States to this reason- 
 able and equitable proposition ? He has simply insisted on 
 his previous demands, and instructed his Minister to leave 
 Peru, suspending all diplomatic relations between both 
 countries. 
 
 We cannot, indeed, realize why this proposal is declined, 
 because, if Peru is in the wrong, it is not to be ex- 
 pected that any nation in the world, and in a question with 
 
32 
 
 the United States, would decide in her favor, and less so, on 
 a point which, if adjudged against Peru, would give to 
 foreign powers advantages which they did not have nor 
 claim heretofore in their relations with countries disturbed 
 by internal commotions. The Government of Peru knows 
 perfectly well that it cannot expect to exert influences or 
 weight arising from power, position, or commercial inter- 
 course, in the arbitration of a dispute with a great nation, 
 and believes, on the contrary, that in the present case, all 
 the influences are on the other side ; but the question being 
 one of principles, and having its source in the law of nations ; 
 its decision involving the settlement of points made ques- 
 tionable by the United States, the Peruvian Government 
 thought, very properly, that the only expedient for an ami- 
 cable solution, was the decision of another power, and to 
 give an additional proof of respect for the United States, 
 gave exclusively to the President the choice of that power. 
 What more can be asked from that government ? A con- 
 sideration for the relative weakness of a friendly republic, if 
 no other reason, ought to have induced the President of the 
 United States to accept the proposed means of settling the 
 difficulty; and, more so, when this difficulty arises from the 
 different interpretation given to principles generally accept- 
 ed and observed, on their special application to a particular 
 case, There is no national question, no insult, no breach of 
 treaties, no wounded honor between the two countries. It 
 is what we may call a difference of opinion between Presi- 
 dent Buchanan and the Government of Peru ; and as we 
 cannot presume that the former wishes to impose his opinion 
 on the latter, unless justified by an impartial judgment, the 
 reason for his declining the proposal of Peru is incompre* 
 hensible. 
 
 Is President Buchanan afraid that the decision might be 
 
33 
 
 favorable to Peru ? But, then, this same fear ought to be an 
 incitement for him to refer the question to a disinterested 
 nation ; because the fear implies a doubt in the correctness 
 of his position, and in such a case, to press his demands, 
 backed by the irresistible power of the United States, signi- 
 fies to assume a dictatorial attitude towards a country whose 
 force arises from the strength of its rights, but that is materi- 
 ally unable to maintain them. 
 
 It has been stated that the arbitration was declined, 
 because the question was one of damages, and reduced 
 to dollars and cents; but it is plain that to reach this 
 point, it is necessary to decide previously whether the 
 United States have the right to claim such damages. 
 The indemnity can only take place after the principle, 
 in virtue of which is claimed, has been decided against 
 Peru, or after Peru may have recognized the correct- 
 ness of the principle invoked .by the United States. Peru, 
 on the contrary, maintains that this principle is not correct, 
 and, therefore, the question of indemnity cannot come up, 
 until this previous point is settled. Peru has proposed a 
 most liberal and equitable way of settling it, and unless it is 
 required from that republic to make a discretionary sur- 
 render, giving the character of infallibility to a position not 
 justified by any doctrine of international law published here- 
 tofore, it is unreasonable to assume that the pending ques- 
 tion is one of dollars and cents. We wish it was so, because 
 then, a few dollars more or less would bring about a solu- 
 tion ; but, unfortunately, the question is not of money, but of 
 national sovereignty and international law, and in this par- 
 ticular case it is of life or death for Peru. 
 
 The President of the United States will explain his reasons 
 for declining to accept the only honorable and pacific way 
 of settling this difference; the Senate and people of the 
 
United States will judge of the true value of these reasons, 
 and to Congress and to this people we appeal from such a 
 decision, fully convinced that before this august tribunal, 
 the course of the Government of Peru will be duly appreci^ 
 ated, and that justice will be done regardless of all motives 
 unworthy of a noble and generous nation. 
 
 XII. 
 
 Before finishing the task that a desire to see justice done 
 to a weak nation has imposed upon us, we must call public 
 attention to the last propositions made by the United States 
 Government to settle the question regarding the Georgiana 
 and Lizzie Thompson. A proper respect for the dignity of 
 that government would have made desirable the suppression 
 of that part of the official correspondence that has been pub- 
 lished in the Times and it would have been suppressed 
 if our advice had been taken on the subject. The question 
 on principle had been sufficiently illustrated, and the rights 
 of Peru maintained with a strength of argument that showed, 
 to any unprejudiced mind, the correctness of her position, 
 We were willing to submit that question to the judgment of 
 the public and press, on its main points, whilst it remained 
 within the limits of a legal controversy, without any wishes, 
 on our part, to present the acts of the present government 
 of the Union under a light more disadvantageous than the 
 one given to it by the correspondence up to the time of Mr, 
 Osma's proposition to refer it to the decision of a third 
 power. But it is probable, that the desire of the Govern- 
 ment of Peru to convince the world of the injustice of Mr, 
 Clay's assertions, in attempting to charge it with the respon- 
 
35 
 
 sibility of the rupture, has induced the said government to 
 publish that correspondence, and this done, it is our duty to 
 make such remarks as the same suggests, regardless of the 
 motives that inclined us to be silent on it. 
 
 Secretary Cass suggested " that the proposition to refer the 
 " question to arbitration would be considered, provided the 
 " Peruvian Government should previously fully indemnify the 
 " claimants, making this appear as a spontaneous act of Peru." 
 
 It is equivalent to say, that the United States wanted to 
 have the amount of the claim, independent of its fairness or 
 injustice. Is this proceeding in conformity with any prin- 
 ciple of law, justice, or reason ? It seems almost incompre- 
 hensible that the Secretary of State of a civilized nation 
 Could, for a moment, entertain the idea of this proposition, 
 and) full of respect as we are for the wisdom and integrity 
 of the worthy statesman, we are willing to believe, that there 
 has been some misunderstanding of his words. But we are 
 not less surprised to read Mr. Clay's dispatch of the 23d of 
 December, 1859, where he states, that "all discussion, s 
 " regards to the principles involved in this case, and the 
 " right of those claiming indemnity, had been ended, but that 
 11 he was willing to discuss about the amount claimed to 
 " make the reductions that might be considered just and 
 14 convenient." So, the United States Government decides, 
 by its own authority, that Peru is in the wrong, does not 
 listen to any reason, is unwilling to hear any impartial 
 opinion, and assuming that Peru must submit to its decision, 
 has the generosity to descend to a discussion only on the 
 amount to be paid ! ! Mr. Buchanan does not consider that 
 Peru is a sovereign and independent nation, with equal 
 rights to the United States, He brings her down to the 
 condition of a vassal of his government, and bound as such 
 to acquiesce to his will. Neither the rights of sovereignty 
 
36 
 
 nor the law of nations need be respected with a country that 
 has not the force to repel force, and its very weakness is a 
 strong reason to show no consideration or friendly regard. 
 We blush, in writing these lines, in the name of the Ameri- 
 can people. 
 
 Mr. Buchanan has, however, carried farther yet the system 
 of scorn and humiliation followed towards Peru, as will be 
 seen by Mr. Clay's note of the 5th of June, in which, insist- 
 ing on his former views, demands from Peru u the recognition, 
 "in specific terms, of her responsibility for the seizure and 
 "confiscation of the Georgiana and Lizzie Thompson, and 
 " the appointment of a mixed commission to decide on the 
 " amount of indemnity for this, and all other cases of claims 
 "between the two countries." This proposition is a natural 
 consequence of the principle formerly laid down by Mr. Clay, 
 viz., "that all discussion, on the principles of the case, was 
 "at an end." The object of the proposal is, to make Peru 
 pay, at all hazards, and this is more clearly shown in that 
 gentleman's substitute making " Peru pay a considerable 
 " amount of money to the United States in settlement for all 
 " pending claims." The Government of Peru has agreed to the 
 appointment of the mixed commission, to which all claims 
 should be submitted, but the actual case of the Georgiana 
 and Lizzie Thompson cannot be in a state to be so submitted 
 to that commission until it is decided, on the question of 
 principle, against that government. The United States pre- 
 tend that Peru should consent to abandon the legal point, 
 but to this pretension it is impossible for her to give an 
 assent, even by implication, because by so doing she would 
 establish a most fatal precedent against her rights of 
 sovereignty. 
 
 Mr. Clay's substitute cannot be considered but as a mean 
 trap, unworthy of a diplomat, to make the Government of 
 
3? 
 
 Peru acknowledge, by implication, the right of a revolter to 
 dispose of the national property, and of American citizens to 
 speculate, with perfect security, with whatever filibuster may 
 take possession of the guano deposits. To obtain these 
 privileges, it is well worthy to be generous in the case that 
 is used as a pretext for the purpose, and therefore he could 
 consent to a discussion to reduce the amount claimed. What 
 a difference between Mr. Clay's and Secretary Cass' propo- 
 sitions ! ! The latter, wrong as he was, consented to doubt 
 of the principle, provided money was paid to satisfy the 
 claimants. He, at least, gave to Peru the benefit of a possi- 
 bility of her rights being recognized and affirmed, although 
 biased by a payment that might contradict that recognition. 
 The former (Mr. Clay), the friend of Peru, proposed to obtain, 
 under cover of a generous feeling, an abandonment of those 
 rights, and to establish a precedent most pernicious to her 
 future, "by consenting to reduce the amount of the claims." 
 
 The public can judge if we were right, when stating our 
 earnest wish to have suppressed that part of the correspond- 
 ence that we have slightly mentioned in the last pages, 
 Following the same desire, we have endeavored to trace only 
 the main lines, sparing to ourselves the feeling of disgust 
 that causes a conduct so unworthy of the representatives of 
 a great people in their questions with a sister republic. 
 
 Most fortunately for Peru, and for the credit and dignity 
 of the United States, the government of General Castilla, re^ 
 lying on the integrity of the United States Senate, atid on 
 the sympathy of the American people, has sustained 
 respectfully, but firmly, the rights of Peru without being 
 influenced by the threatening insinuations of those represen^ 
 tatives, and as we have stated before^ we hope and trust that 
 "justice will be done regardless of all motives unworthy of 
 " a noble and generous nation*" 
 
39 
 
 DOCUMENTS. 
 
 (Translation from the Spanish.) 
 
 LEGATION OF THE UNITED STATES, ) 
 LIMA, February 9th, 1858. J 
 
 The undersigned, Envoy Extraordinary and Minister Plenipotentiary of the United 
 States of America, has to-day had the honor to receive the note which his Excellency 
 the Minister of Foreign Affairs has addressed to him, under date of the 3d, in reply to 
 one from the undersigned of the 1st instant. 
 
 With respect to the important error which H. E. has attributed to the undersigned, 
 under the supposition that H. E. had informed him that the captains of the American 
 vessels seized by the Tumbes would be discharged from prison so soon as their declar- 
 ations were taken, the undersigned can only say, that such was the deduction which he 
 made from his conversation with H. E. at their interview of the 30th of the last month ; 
 a deduction which the undersigned might suppose was exact, when we consider that the 
 capture of the aforesaid vessels was made under special instructions of H. E. ; and that 
 the decree of the 30th ultimo, ordering that their trials should be passed to the Collector 
 of the Custom-House of Callao, as judge of contrabands, seizures, or confiscations, was 
 signed by H. E. as Minister of the Treasury. All this led the undersigned to believe 
 that H. E. exercised a discretionary power in this matter, certainly if viewed in the light 
 of the retention or liberty of the prisoners. But, be it as it may, the undersigned will 
 ever regret having misunderstood any word or expression used by H. E., more particu- 
 larly in matters of so much importance. 
 
 But the demand which the undersigned made in his note of the 1st, that the captains 
 of the Lizzie Thompson and Georgiana should be liberated, after making their declaration, 
 was not founded entirely on some word which might have transpired at the aforesaid 
 interview of H. E. with the undersigned, but in higher reasons, which were expressed in 
 his note, as follows: that no just and sufficient reason existed for their arrest and 
 imprisonment. 
 
 Nevertheless, before entering upon the discussion of the principal question, the under- 
 signed deems it his duty to assure H. E. that he is right in supposing that the under- 
 signed was not well informed of the liberation of Captains Wilson, Reynolds, and L. A. 
 Hamilton, when he addressed his note of the first. 
 
 After these preliminary observations, the undersigned will continue his examination 
 of the question of the capture of the Lizzie Thompson and Georgiana by the national 
 war-steamer Tumbes, on the 24th of January last; and he has the honor to inform H. E. 
 the Minister of Foreign Affairs, that notwithstanding the presence of those vessels in 
 Pabellon de Pica and Punta de Lobos, engaged in loading guano, may be in time of 
 peace and order considered as under the control of the republic, in the present state of 
 the country, and under the circumstances in which the capture was made by the Tumbes^ 
 the undersigned believes he can demonstrate : 
 
40 
 
 let. That neither said vessels nor their captains were engaged in a " scandalous and 
 (C criminal contraband of guano, in contravention of the fiscal laws, commercial regulations, 
 "' and coastwise ordinances of Peru." 
 
 3d. That the capture of the American vessels Lizzie Thompson and Georgiana by the 
 Tumbes, in accordance with the instructions of H. E. the Minister of the Treasury in 
 Lima, was not effected with perfect right, and, consequently, was irregular. 
 
 3d. That the manner of effecting this capture, and the transfer to the port of Callao, 
 was unjustifiable, cruel (not to say barbarous), and illegal. 
 
 The undersigned proposes to examine these points separately, and whatever observ- 
 ations he may deem it necessary to make in treating them, he begs that H. E. the 
 Minister of Foreign Affairs to be assured that they are made with all the respect and 
 consideration due the Exmo Council of Ministers and the people of Peru. 
 
 The undersigned deems it necessary to make this explanation, because the matter in 
 question is very delicate ; and, in its discussion, he does not wish to wound the suscepti, 
 bility of others. 
 
 The undersigned will now proceed to demonstrate that the Lizzie Thompson and 
 Georgiana, and their captains, cannot be justly accused of having been engaged in a 
 criminal and scandalous contraband of guano in Pabellon de Pica and Punta de Lobos. 
 
 By examining the facts appearing by the declarations of Captains Wilson and 
 Reynolds, certified copies of which the undersigned has the honor to annex.it will be 
 seen that both went to the port of Iquique for the purpose of engaging in a legal traffic. 
 The Lizzie Thompson sailed directly from San Francisco, State of California, with a 
 cargo of barley for Iquique; and the Georgiana, from Townsend, Washington Territory, 
 in the United States, with a cargo of lumber for Valparaiso ; at this place the consignees 
 of the latter sold it, conditioning for its delivery in Iquique, or at a place in Peru called 
 " Mala." 
 
 There was no decree which prohibited their going to Iquique, and their cargoes were 
 of innocent articles of commerce. 
 
 On arriving at this port, they found a Custom-House regularly established, with its 
 Collector and other port officers, who visited their vessels in due form, and they then 
 entered, which they could not have done without permission. The captains of the vessels 
 there found local authorities de facto, in possession of, and exercising their jurisdiction, 
 and they were obliged to recognize them, as well as their acts, since the aforesaid vessels 
 were within the limits of Peru. It did not belong to them to enquire in what manner the 
 persons exercising authority in the port fulfilled their duties neither could they call in 
 question their right to exercise authority in Iquique ; in the same manner that it was not 
 permitted, either to them or to other vessels, to deny or call in question the jurisdiction 
 of the Custom-House in Callao, and of the employees of that port. 
 
 If they had contravened any of the regulations of the port, or of the Custom-House, 
 they would undoubtedly have been responsible to the actual authorities of Iquique. 
 
 After entering the port, the Lizzie Thompson left her cargo there. The Georgiana 
 obtained a license from the Custom-House to discharge hers at Mala. The captain of 
 the first, after discharging his vessel, was solicited by the Consular Agent of the French 
 Empire, Mr. Federico Freraut, for her charter, and that she should take a cargo of guano 
 in Pabellon de Pica or Punta de Lobos, a contract for which, as the aforesaid Consular 
 Agent informed the captain, had been celebrated with the Peruvian Government. 
 Captain Wilson, before accepting the freight, went to the Custom-House authorities of 
 Iquique to enquire if he would be permitted to load in those places ; and they not only 
 told him yes, but that they would grant a license for the vessel to go there. The charter- 
 party was made immediately thereafter with the French Consular Agent ; and the Lizzie 
 Thompson, after having obtained a license in due form to load in Pabellon de Pica, or 
 Punta ds Lobos, was cleared by the Custom-House of Iquique on the 19th of December 
 last. 
 
The captain of the Georgiana followed the same course, received identical information 
 from the authorities, and chartered his vessel to Don Jose Santos Ossn, who acted as 
 agent of the house of Lequellec & Bordes, of Valparaiso, and the freight was in the 
 same manner to load guano at " Pabellon de Pica " and " Punta de Lobo.s." Having ob- 
 tained a license from the authorities so to proceed, she was cleared in form by the Cus- 
 tom-House of Iquiqne, on the 29th of December, 1857. 
 
 It is, therefore, evident that the captains of the aforesaid vessels went to Tquique with 
 the sole object of leaving their cargoes, and having accomplished that, they thought of 
 chartering. They did not go to that port in search of cargoes of guano, since if that had 
 been their object, it would have been expressed in their original letters, sent from San, 
 Francisco and Townsend ; and would, in all probability, have made their contracts for 
 the purchase and delivery of the guano, before going to Iquique. Such was the course, 
 as the undersigned understands, with all the vessels which loaded guano at the Chincha 
 Islands during the period in which those deposits were under the control of the revolu- 
 tionary party headed by General Vivanco. The captains of the Lizzie Thompson and 
 Georgiana could not consequently suppose that they engaged in an illicit traffic in load- 
 ing guano at "Pabellon de Pica" and " Punta de Lobos," while, on the contrary, they 
 had reason to think that their commerce was legal, judging by the offic'al information, 
 and the acts of the authorities established in Iquique. Moreover, the captain of the 
 Lizzie Thompson could not imagine that a Consular Agent of the Emperor of France 
 would engage in an illegal traffic, making him his accomplice. The same remark may 
 be made respecting the captain of the Georgiana, with the only difference that she was 
 chartered by a person in whom the consular character was not vested. 
 
 Again, the cases provided for by the decrees of the Government of Peru respecting 
 guano, refer to vessels which have gone to the islands without any license for the pur- 
 pose of taking guano clandestinely. At all events, the responsibilites, if any, belong to 
 the local authorities of Iquique, Pabellon de Pica, arid Punta de Lobos, or the charterers 
 of the vessels; but, certainly, not the vessels themselves, or their captains, because 
 there is nothing clearer than the legal principle that possession implies authority, and if 
 the distorted interpretation of an article is proved or demonstrated, the innocent instru- 
 ment cannot be called to answer criminally. 
 
 These reasons seem sufficient to the undersigned to prove that the captains, to whom 
 reference is made, cannot in justice be considered as criminals. 
 
 The undersigned is of opinion that the only valid place for the seizure effected accord- 
 ing to the laws, is that within which jurisdiction is exercised; and that this may be per- 
 fect it is necessary that the party exercising it be in actual possession of the place. And 
 now, it is very well known that for nearly two years the peace of the republic of Peru 
 has been disturbed by a revolution, and that the party opposed to the government at 
 Lima, has been in possession of various parts of the country alternately, the city of 
 Arequipa being the nucleus of this party, as it probably is at the present moment. 
 There exist, consequently, in the centre of the republic two hostile parties, one of which 
 defends the government of Lima, and the other aims to substitute it by another adminis- 
 tration, by means of an outbreak. 
 
 It is undeniable that the grand principle upon which all republican institutions are 
 based, is that all power is vested in the people, and emanates from them : they frame 
 the constitution of the state, and appoint or select the executive part of the government. 
 The suffrage is the regular and constitutional manner of expressing this election ; but, 
 unfortunately, in Peru the changes which have succeeded one another in their adminis- 
 trations have had their origin in revolution. These revolutions have been commenced, 
 almost always, by means of an armed insurrection, in which the chief, after having se- 
 cured the support of a certain number of partisans, has been proclaimed by them or has 
 proclr.imed himself president ad interim, under different names ; has formed a ministry, 
 jued decrees, and exercised other acts of executive authority. The necessary result of 
 
these acts has been civil war, and during the many which have disturbed the peace of 
 the nation, the revolutionary parties have not hesitated to appropriate the property of 
 the nation to sustain their cause. The party of Vivanco has followed the same course 
 during the present revolution. The undersigned is very far from wishing to express any 
 opinion in regard to the merits of such a system, and his reflections have no other ob- 
 ject than to call the attention of H. E. the Minister of Foreign Affairs to the fact that 
 Peru is in a state of civil war. And now, according to the modern doctrines of inter- 
 national right, the contending parties enjoy all the rights of belligerents, and the due 
 respect of neutral nations. In virtue of these rights, the party opposed to the existing 
 government has always taken possession of the available and tangible property of the 
 nation, as a means of raising funds; has issued vales (bonds), pledging for their pay- 
 ment the property and resources of the country; has seized the money deposited in the 
 Custom-Houses, discounted the notes signed by merchants in payment of duties on mer- 
 chandise imported, and has exercised other acts of sovereignty which, at a later period, 
 have generally been recognized by the Peruvian nation on the re-establishment of peace 
 in the country. Such has been the case during the present revolution, in which there 
 have been entries of merchandise, alternately by the government and by the revolution, in 
 the Custom-Houses of Islay, Payta, Huancacho, and San Jose de Lambayeque. The same 
 thing has occurred with respect to the guano. This substance is the property of the 
 Peruvian nation, and yet Vivanco, while he was in possession of the Chincha Islands, 
 sold and expoited the guano from those deposits, notwithstanding the prohibitory de- 
 crees of the Government of Lima ; and the undersigned understands that the sentences 
 of the tribunals in Chile and Belgium have been unfavorable to the reclamations made 
 by the government against the cargoes of guano shipped in this manner for those coun- 
 tries. The undersigned will not enter upon the question as to whether there is or is not 
 claim to those cargoes, because that belongs to the judicial authorities of the countries 
 to which they have been sent, but what he holds is, that the party of the opposition in 
 Peru, engaged as it is in a civil war, is as such entitled to all the rights of war. 
 
 And one of those rights, without doubt, is the jurisdiction maintained over the terri- 
 tory which it occupied, and the change of local authorities, and exercise of official acts, as 
 the consequence of this possession and jurisdiction. 
 
 When the party of Vivanco took possession of that part of Peru which embraces the 
 port of Jquique, Pabellon de Pica, and Punta de Lobos, the representatives of that party 
 established local authorities, and occupied these last points, which, foim the principal 
 portion thereof, placing soldiers upon them. Consequently, during this time the au- 
 thority and jurisdiction of the government of Lima were without effect. 
 
 Under these circumstances, the American vessels Georgia.ua and Lizzie Thompson ar- 
 rived at the port of Iquique. As belonging to a foreign and neutral country, it was 
 not for them to question the Government and its local authority, much less when it 
 was openly respected by H. B. M.'s war steamer Retribution. 
 
 The captains of these vessels consequently accepted the charters which were offered 
 them, and sailed for Punta de Lobos and Pabellon de Pica, with their licenses issued by 
 the Custom-IIouse of Iquique, which port was, at the period when the capture was 
 effected by the Tumbes, under the contiol and jurisdiction of the revolutionary party of 
 Peru. The capture executed by the instructions of the Minister of the Treasury in 
 Lima was not, therefore, in the conception of the undersigned, a perfect and regular 
 right, much less when we consider the fact that the Government of Lima was deprived 
 of its jurisdiction in that part of the republic. 
 
 3d. The undersigned considers that the manner in which the seizure or capture of the 
 vessels, and their transfer to Callao, was effected, was unjustifiable, cruel, and illegal. 
 
 Referring to the declarations of Captains Wilson and Reynolds, it will be seen that the 
 Lizzie Thompson arrived at Pabellon de Pica on the 25th of December last, and found 
 there a Governor, a Port Captain, subaltern, employees, and thirty or more soldiers of 
 
43 
 
 the revolutionary party ; that hie vessel was examined at anchor by the Port Captain, 
 and that he commenced, on the 4th of January, to load with guano, which article was 
 delivered by the authorities on the beach. Farther on, Captain Wilson adds, that during 
 his stay at Pabellon de Pica, the place was twice visited by the Peruvian war steamer 
 Apurimac, and " that a small Peruvian steamer, also armed, was there at anchor, almost 
 ' all the time that the vessel remained." He also adds, that both vessels visited his, 
 and examined his papers, saying that they were in due form. 
 
 The Georgiana arrived at Punta de Lobos on the 3d of January, and began to load 
 with guano on the llth, it being supplied on the beach by the authorities, as her cap- 
 tain has informed the undersigned. 
 
 It does not appear that either of the two vessels was provided with arms of any kind 
 which they would probably have procured if they had been prepared for any contraband 
 operation. This proves, more and more, that the captains considered themselves as 
 neutrals, and in the exercise of a legal commerce. 
 
 Further en, the declarations of the captains show, that the Tumbes arrived at Pabellon 
 de Pica and Punta de Lobos on the 24th of the last month, in the morning, very early, 
 and sent her boats with armed men to take possession of them, and place them under 
 her control. 
 
 The captain of the Lizzie Thompson declares, that the official and people of the 
 Tumbes conducted themselves in a violent manner, and on boarding his vessel, the sol- 
 diers aimed their muskets at him, and threatened him with death if he opposed the 
 least resistance. 
 
 The Georgiana, which is the smaller vessel, and whose crew was composed of nine 
 persons, was also boarded, and her captain forced to go on board the Tumbes, where he 
 was told by the commander that if he did not immediately comply with his orders, he 
 would destroy his vessel, for which purpose he had the cannons doubly charged. 
 
 Captains Wilson and Reynolds declare, at the same time, that they were taken from 
 their vessels, and conducted, as prisoners, on board the Tumbes ; that their crews were 
 forcibly taken from their vessels, and put iu their boats, remaining abandoned on the 
 sterile and inhospitable coast, without provisions or water. r lhe crew of the boat of 
 the Lizzie Thompson were also deprived of her mast and sails, and when they went 
 alongside of the Tumbes, they were repulsed, and told to ask assistance from the armed 
 men in possession of their vessel ; returning there, the boat was fired upon by the sol- 
 diers, and one of the men wounded with a knife. And thus, eight men of the Lizzie 
 Thompson, and six or seven of the Georgians, were abandoned, without provisions or 
 water, at a distance of forty or fifty miles from any point where they could procure the 
 necessary assistance, since Iquique itself is unprovided with other than water distilled in 
 the city. The idea of destroying merchant vessels, and leaving their owners in such a 
 situation, is so repulsive, that the undersigned cannot believe that the commander of the 
 Tumbes had instructions from his government so to proceed. Such conduct can in no 
 manner be justified. If the vessels be considered as neutrals in the territory of a party 
 at war, their capture is illegal, since they committed no fault which authorized their de- 
 tention. If, on the other hand, they were seized for contravening the fiscal laws, their 
 crews should at least have been left on board, since they were in no wise responsible, 
 and, moreover, in executing the capture, the accused could not be deprived of the 
 presence of persons who might serve for their defence, or their cause. 
 
 Furthermore, if the commander of the Tumbes had orders to destroy the vessels, as 
 he told their captains, he could not execute them, since they were contrary to law, be- 
 cause, being American property, the Government of Peru had no right of absolute con- 
 trol over them until they were condemned by a competent tribunal. Such is the law in 
 the cases of seizures made in time of war, and particularly, with vessels seized according 
 to the laws of all civilized nations. 
 
 For these reasons, and others easily deduced, the undersigned in his note to H. E., 
 
under the date of the 1st inst., asked, as a right, the liberation of the captains of the 
 Lizzie Thompson and the Georgiana. 
 
 Considering, therefore, that the capture of the Lizzie Thompson and the Georgiana, 
 the first at Pabellon de Pica, and the second at Punta de Lobos, on the 24th of January 
 last, by the Peruvian war steamer Tumbes, under instructions from the Minister of the 
 Treasury of Peru, was unjustifiable and without perfect right ; the undersigned solemnly 
 protests against the capture and detention of the said vessels, for which reason the un- 
 dersigned notifies H. E. the Minister of Foreign Affairs of Peru, that he holds the Peru- 
 vian Government responsible for all the consequences of that capture and detention, to 
 the United States, as well as to the owners of the Lizzie Thompson and the Georgiana ; 
 and also for all the losses or damages suffered by said owners, and captains, and crews 
 of said vessels, in consequence of their capture and detention by the Peruvian Govern- 
 ment. 
 
 The undersigned has the honor on this occasion to renew to H. E. the Minister of For- 
 eign Affairs, the assurance of his highest consideration. 
 
 (Signed) J. RANDOLPH CLAY. 
 
 REPUBLIC OF PFRU, 
 Department of Foreign Affairs. 
 LIMA, 18th February 1858. 
 
 The undersigned has submitted to the Council of Ministers the contents of the note of 
 H. E. the Envoy Extraordinary and Minister Pelipotentiary of the United States, of the 
 9th inst., referring to the seizure and proceedings against the American vessels Lizzie 
 Thompson and Georgiana, and has received special instructions to reply to H. E. in the 
 terms following: 
 
 The tenor of the aforesaid note of Mr. Clay has produced great surprise and profound 
 regret to the Council, by the form and terms in which it is conceived, the ground assigned 
 for it, and finally, by the object to which it is directed ; and before entering upon the 
 matter, the undersigned would recall to H. E. Mr. Clay, certain act?, the merits and con- 
 spicuity of which suffice to show that the Government of Peru could not, and ought not, 
 to have anticipated such a communication from H. E., while the undersigned cordially 
 assures II. E. Mr. Clay, that in the course of the delicate communication which he is 
 obliged to make in behalf of the grave rights whose illustration and defense fall to his 
 charge, it is his intent to conduct the same with the consideration and respect so justly 
 due to the high position of the cabinet at Washington, and their worthy representative, 
 to wliom the undersigned addresses himself. 
 
 A few days after the undersigned had assumed charge of the Departments of Foreign Af- 
 fairs, Treasury , and Commerce, and while the Chincha Islands were under the control of the 
 revolted naval forces, he conferred with H. E. the Provisional President, upon the necessary 
 means for making known in the republic, and in all countries procuring guano from Peru, 
 the firm and decided resolution which the government had adopted, to follow up by all 
 the means in its power the illegal and fraudulent exportation of that fertilizer which 
 might be made by force, in virtue of null and aggressive contracts made with the rebels 
 or their agents. 
 
 For tin's purpose there were reprinted in the official periodical, El Peruano, of the 
 
 27th of February of last year, Number 48, Vol. 32, a series of the principal laws and 
 
 decrees relative to the regulations for the sale and traffic in said fertilizer, and penalty 
 
 incurred by those infringing the same ; and on the 28th of the same month, the under- 
 
 nddn-sfi'd a circular to the Diplomatic Agents and Consuls of the Republic in 
 
 n countries, to the end that they might give due publicity to the laws and decrees 
 
 referred to, to avoid in this manner even the most trival pretext of good faith which the 
 
contrabandists might set up. In fact, the republication was made in France, England, 
 Belgium, Spain, the United States, and the Spanish American countries, it being \\orthy 
 of note tliat in Paris, by authority of H. E. Count Walewski, Minister of Foreign Affairs 
 of the Empire, the publication of the same was directed to be made in the official gazette 
 El Monitor ; neither in consequence of this publication, or of the reiterated manifesta- 
 tions which the undersigned had occasion to make to the Diplomatic Corps resident in 
 this capital, of the intention of the government to proceed in strict conformity with 
 the aforesaid laws and decrees, to prosecute and seize the contraband guano vessels, was 
 the slightest observation made in the way of objection, since, without doubt, all recog- 
 nized the perfect right which sustained the only legitimate and recognized government 
 of the republic in defending the national property, threatened and invaded by the most 
 scandalous vandalism. 
 
 The vessels of war Loa, Tumbes, Yzcuchaca, ffuaroz, and Guise, which were at the 
 Chincha Islands, having been restored to obedience to the government, all the foreign 
 shipping lying there, and loading guano under contract with the rebels, precipitately fled, 
 recognizing by this single act, both their culpability, and the right of the government to 
 follow and seize them a circumstance all the more notable, when, at this juncture, there 
 were foreign vessels of war at the Islands, and among them the American corvette John 
 Adams, on whose protection the fugitive shipping would have relied, had they not been 
 clearly convinced that they had no right to such protection, and that they would not sus- 
 tain speculations in every view reprobated and criminal. 
 
 The government having sent the war steamer Ucayali to the island, for the purpose 
 of reinstating the legal authorities, and re-establishing the order which the rebels had 
 disturbed, on the 13th of May her commander made known a message which he had 
 received from the captain of the John Adams, "that whatever the flag of a vessel in 
 " which a North American citizen was loading guano, it would be protected by him." On 
 account of this, the undersigned, desirous of avoiding any disagreeable question with the 
 Government of the Union, communicated to H. E. Mr. Clay, at an interview sought for 
 the purpose, the contents of the communication from the commander of the Ucayali, with 
 other information, setting forth the grave abuses committed by the commander of the 
 John Adwns, at the islands. At this interview the undersigned also laid before H. E. 
 the opinion given by the lawyers of the United States, in reply to queries addressed to 
 them by the consignee of guano residing in Baltimore, touching the right of the Peru- 
 vian Government to claim and recover the cargoes of this fertilizer taken under author- 
 ity from the rebels, and imported to the markets of the Union, which opinion, in brief, 
 is conceived in the following terms : 
 
 " Theoretically considered, this question is very simple. The Peruvian Government, 
 " dejure et de facto, the only one which can appear, as such government, before foreign 
 " powers, is to-day represented by the Liberator Grand Marshal D. Ramon Castilla. 
 " Mr. Vivauco, who has no possession of public business, who has no assistance from 
 " the constituted powers of the state, who exercises no authority in the greater part of 
 " the territory of the republic, is not, and cannot be regarded in any manner as de 
 "facto exercising the executive power of Peru. That he has possession of two or three 
 " cities or provinces, and that he has taken some vessels, are of no importance in a legal 
 '' view ; his acts are not respected by other nations or their tribunals, nor have they 
 " more validity than would be given to the acts of any other person who by force ob- 
 " tained possession of any part of the Peruvian territory, and disposed of the national 
 " property, on which he could lay his hands. Consequently, an agent of the Govern- 
 " ment of Peru, diplomatic or consular, has the right to embargo or recover the cargoes 
 "of guano which are taken from the republic by means of sales or contracts, of every 
 "nature, made by D. Manuel Ignacio Vivanco." 
 
And H. E. Mr. Clay, conducting with the rectitude and enlightenment of which he had 
 given so many proofs, reprobated the conduct of the commander of the John Adams, 
 promising the undersigned that he would obtain from his government, opportune and 
 proper reparation, recognized the right of the Government of the undersigned to seize 
 and prosecute the vessels which went to load guano without license, and the requisites 
 required by the laws of the country; and H. E., in corroborating by his sanction the 
 aforesaid opinion of the American lawyers, carried his delicate condescension to the ex- 
 treme of sending his secretary, Mr. Caverley, a gentleman versed in, and well under- 
 standing the legislation of his country, to the end that he should amplify and ratify said 
 opinion, as in a conversation with the undersigned he did, in a lucid and satisfactory 
 manner. 
 
 At a later period, on account of the publication of the Convention of the 21st of M;y, 
 of last year, celebrated by the Government of Peru with the Charges d Affaires of Eng- 
 land and France, and of having stipulated that they should go into effect from the date 
 of its signature, that is, without the necessity of previous ratification, H. E. the Envoy 
 Extraordinary and Minister Plenipotentiary asked an interview with the undersigned 
 with the exclusive object of inquiring " if, in case American vessels went to load guano, 
 " at the deposits of the republic, without the competent license and requisites required 
 " by existing laws, they would be captured, or simply ordered off by the naval forces of 
 ' England and France ?" And the undersigned having replied, referring entirely to the 
 terms of the Convention, by which it was simply stipulated that they should prevent the 
 illegal and fraudulent exportation of guano, H. E. Mr. Clay concluded by the formal 
 declaration, "that he only recognized the right of Peruvian vessels to capture those of 
 "America which went without license from the government and the legal requisites, to 
 " the guano deposits of the Republic." 
 
 From the facts aforesaid, we necessarily deduce the conclusion that foreign governments, 
 their agents, and especially and particularly H. E. the Envoy Extraordinary and Minister 
 Plenipotentiary of the United States, have respected the perfect right which the legiti- 
 mate and recognized Government of Peru profess to follow, and capture the vessels 
 which, without the competent license and requisites required by the existing laws, are 
 found engaged in the illicit and fraudulent importation of a fertilizer which constitues 
 the principal branch of national resource. 
 
 And it is to be noted, that in sustaining and preserving intact so undisputed a right, 
 not only is the independence and sovereignty of the State secured, but, so to express it, 
 her existence, her future, and her credit, depend upon it ; since if which it is to be 
 hoped may never be the lamentable precedent of impunity and exemption in favor of 
 -the accomplices and abettors in the fraudulent and unjustifiable exportation of guano, 
 under the protection of the heads of a faction, or of the commanders of revolted vessels, 
 acting against the republic, should be recognized, very soon would that source of 
 wealth be dissipated, which is pledegl to the payment of the domestic and foreign 
 debt, and which, at the same time, constitutes the guarantee of commerce, the source of 
 industry, and the principle of the future advancement of Peru, and hence, its preserva- 
 tion being of general interest. 
 
 Thus, there is no impropriety in the assertion that the reclamation of H. E. Mr. Clay 
 has caused great surprise and profound regret to the Council of Ministers, since it might 
 have been anticipated from any one rather from H. E., if attention be paid to the afore- 
 named antecedents ; and notwithstanding that they alone would tend to weaken argu- 
 ments which are repugnant to the previous convictions of their respectable author, as 
 he has thought proper to produce them without regard to his own judgment, the under- 
 signed will perform the duty of answering them. 
 
 The cardinal points are these, on which H. E. the Envoy Extraordinary and Minister 
 Plenipotentiary founds the protest which he has been pleased to make in his note of the 
 9th instant, to wit : 
 
47 
 
 1st. "That neither of the vessels or their captains were engaged in a scandalous and 
 '' criminal contraband of guano, infringing the fiscal laws, regulations of commerce, and 
 " of coast trade of Peru." 
 
 2d. " That the capture of the North American vessels Lizzie Thompson and Georgiana, 
 " by the Tumbes, by virtue of instructions from the Minister of the Treasury in Lima, 
 " was not of clear right, and consequently was irregular." 
 
 3d. " And finally, that the mode of enforcing this confiscation or capture, and their 
 "being taken to the port of Callao, was unjustifiable, cruel, not to say barbarous, and 
 " illegal." 
 
 The undersigned, at the risk of being considered diffuse, will endeavor to successfully 
 confute those propositions. 
 
 Whatever may have been the point of departure of the American vessels Lizzie 
 Thompson and Georgiana, and the circumstances which took place in the making of their 
 last charter parties, it is a well-known and unquestionable fact that those vessels, when 
 they were captured by the Tumbes, were lying at Punta de Lobos and Pabellon de 
 Pica, loading guano for exports to foreign parts ; and this fact, without the necessity of 
 much commentary, is more than sufficient to prove that said vessels and their captains 
 were engaged in a scandalous and criminal contraband, infringing the fiscal laws, regula- 
 tions of commerce, and of coast trade of Peru. 
 
 In fact, by the fiscal laws promulgated in the republic and republished in the 
 Peruano the approach of foreign vessels to the national deposits of guano is expressly 
 prohibited ; the loading and sale of guano is in like manner reserved to the consignees 
 contracting with the government, who alone can load in said islands, with the obligation 
 to take out previous special licenses from the government, and sail from the port of 
 Callao, observing the other formalities prescribed by the aforesaid laws, which impose 
 the penalty of confiscation, besides other very severe corporal punishments to those in- 
 fringing them. And the provisions of these same laws are reproduced, in brief, in art. 
 213, chapter 23d of the existing regulations of commerce. 
 
 By articles 208 and 209 of this regulation, it is ordered " Vessels will be confiscated 
 which anchor in other ports than those opened to foreign commerce;" in articles 1st, 3d, 
 and 4th, if, in addition to anchoring, they disembark or receive correspondence, persons, 
 or merchandise. 
 
 If, then, as is true and evident, the Lizzie Thompson and the Georgiana were surprised 
 loading guano at prohibited deposits without license from the government, and that they 
 had anchored and disembarked their crews in ports which are not opened to foreign 
 commerce, it is clear that those vessels and their captains were engaged in a scandalous 
 and criminal contraband of guano, infringing the fiscal laws, regulations of commerce, 
 and of the coast trade of Peru. The undersigned will undertake in due course to 
 refute the feeble arguments with which H. E. Mr. Clay aims to exculpate the aforesaid 
 captains. 
 
 The perfect right with which the capture of the Lizzie Thompson and the Georgiana 
 were executed by virtue of instructions from the Peruvian Government, issued by the 
 proper medium, the department of the treasury, (and not simply of the Minister, as H. 
 E. Mr. Clay, being misinformed, supposes), is derived from diverse and just actions which 
 simultaneously have provoked and authorized this capture. 
 
 In fact the captured vessels have not only committed the common offence of a fiscal 
 contraband, but, violating the strict neutrality to which they were pledged, out of re- 
 spect to their flag, they have been receivers of national property, criminally and iniquit^ 
 ously usurped and fraudulently obtained; they have lent their co-operation and assist- 
 ance to the rebels who have risen against the only legitimate government recognized as 
 such by that of their nation, because the trifling product of those depredations was em- 
 ployed in procuring provisions, military stores, money, and articles contraband of war 
 
for the revolted ship Apurnnac ; they have loaded guano from prohibited deposits, and 
 have anchored and trafficed in ports which are not opened to foreign commerce. 
 
 Thus the capture of the Lizzie Thompson and the Georgiana was clearly right, not 
 only on account of the injury and offence they have committed against the republic, 
 assaulting her property or infringing her laws, but by the violation of their neutrality, 
 converting themselves into actual enemies. 
 
 The sovereign power which independent states possess to regulate foreign commerce 
 in their territories, and to fix penalties for the observance of the same, being an axiom 
 of international law, as is also the power by which the sovereign alone can dispose of 
 national property, and the exercise of sovereignty in these countries which are ruled by 
 the democratic system, belonging properly and exclusively to the legislature, reserving 
 to the executive the duty of enforcing the regulations of commerce and laws relative to 
 the alienation of national property ; the perfect right of the Government of Peru can- 
 not be called in question, when it proceeded to order the capture of these offending ves- 
 sels, in observance of those regulations and laws which have had legislative sanction. 
 To deny, or even to doubt this right, would be equivalent to a denial of the sovereignty 
 and independence of the Peruvian nation ; and the undersigned cannot conceive that the 
 circumspect and upright representative of the government founded by the great Wash- 
 ington could have entertained the intention of inflicting upon a sister and friendly re- 
 public the greatest injury which could be directed against an independent state an in- 
 jury which would affect all civilized nations directly interested in the preservation, intact, 
 of their highest rights. 
 
 Nevertheless such is the deduction which might be drawn from the disastrous principle 
 which H. E. Mr. Clay labors to establish, attributing to the commander of a revolted 
 vessel the power of abolishing, de facto, the fiscal laws and commercial regulations of 
 the republic, authorizing by this violation the most unjustifiable, treacherous, and in- 
 iquitous depredation of national property, while principle sustains the possession of the 
 perfect right by the Government of Peru to capture the Lizzie Thompson and Georgiana, 
 surprised in so illicit a traffic. 
 
 Before proceeding with the discussion it is proper to rectify some statements set forth 
 by H. E. the Envoy Extraordinary and Minister Plenipotentiary, and from which almost 
 all his arguments spring. 
 
 It is not true that on the arrival of the Lizzie TJiompson and Georgiana at the port of 
 Iquique, they there found a Custom-House established in due form, while it is a public 
 and notorious fact stated in the papers, and which could not have been unknown to H. 
 E. Mr. Clay, that from the moment the ship Apurimac took possession of that port, the 
 collector of that Custom-House, with all the employees under him, abandoned it, coming 
 to this capital, where they still are; and if it is intended to classify as a Custom-House 
 established in due form that which was only a poor farce, performed bv the military 
 chief of a revolted vessel, who had no other support than that which he obtained by the 
 fire of his cannons, it is certainly an opinion against which the undersigned hastens to 
 protest in the most efficacious and energetic manner. 
 
 And the expression of that opinion is so much more grave and transcendental, as being 
 founded on the possibility of the existence of inferior authorities de facto, such as the 
 most distinguished writers have not mentioned, in dealing of government de facto a 
 distinction which the undersigned makes, not because he would recognize as a govern- 
 ment de facto the leader of a faction reduced to the narrow limits of the city of Arequipa, 
 but because the so-called Custom-House established in due form in the port of Iquique, 
 to which H. E. Mr. Clay refers, was not constituted even by that leader, but by D. Felipe 
 Rivaa, comrnander-in-chief of the revolted naval forces. 
 
 And can the enlightened representative of a nation, among the most elevated in the 
 scale of civilization, pretend that that chief had the power to abolish the fiscal laws and 
 the commercial regulations, and to dispose of national property, usurping the loftiest 
 
functions of sovereignty ? Can he pretend that null and offensive acts of so spurious an 
 origin may produce legal effects ? 
 
 But there is more ; the licenses obtained by the Lizzie Thompson and Georgiana 
 to load guano at the " Punta de Lobos " and " Pabellon de Pica " were issued by D. 
 Felipe Rivas, the so-called commander-in-chief of the navy ; and could the captains of 
 those vessels ignore the fact that the regulations of commerce prohibited access to the 
 guano deposits, and to ports not open to foreign commerce ? Certainly not ; because 
 they could not be ignorant of the mercantile laws and custom-house regulations of the 
 country of their destination, and because, if such ignorance be admitted as an exception, 
 all the ordinances and fiscal statutes would be brought to the ground, and contraband 
 would be authorized by impunity. 
 
 It is true, and the undersigned is pleased to believe that H. E. Mr. Clay will recognize 
 this truth, that it was not within the sphere of a foreign captain to interfere in the qual- 
 ification of authorities existing in the republic, but while it was not only permitted, it 
 was obligatory upon them, to know the fiscal laws, the regulation of commerce and 
 customs, because it was their positive duty to observe and comply with them. 
 
 Where then is the law, decree, or resolution which annuls the aforesaid provisions rel- 
 ative to the exportation and sale of guano, the place from which it is permitted to ex- 
 tract it, ports open to foreign commerce, &c., &c. ? Certainly it cannot be found ; nor 
 has the same leader, Don Manuel Ignacio Vivanco, in the extravagance of his pretensions, 
 gone to the extreme of dictating such resolutions. 
 
 The examples adduced by H. E. Mr. Clay, relative to custom-house clearances, dis- 
 count of notes, and disposal of public moneys, which have taken place under the rule of 
 the rebels, are in no manner applicable to the case in question ; as they were done under 
 force and coercion, and observing the laws and fiscal regulations and of customs, although 
 the authority in person was illegitimate, and which will in due time be held responsible 
 before the nation. 
 
 The undersigned cannot pass unnoticed the allusion which H. E. the Envoy Extraor- 
 dinary and Minister Plenipotentiary has been pleased to make to the internal dissensions 
 which unfortunately have agitated this country, so worthy of a better fate. And since 
 H. E. has understood that his high mission and character do not authorize him to inter- 
 fere in domestic politics, the undersigned confines himself to reminding H. E. that if, as 
 he declares, popular suffrage is the finest fountain of democratic governments, such was the 
 origin of the provisional government created by the eminently popular revolution of 1854, 
 which was then founded on the constitution of the republic, and now sustained by the vote 
 of the people, who have risen in mass to put down the hydra of rebellion, and of whose 
 heroic efforts H. E. Mr. Clay has had ocular demonstration, in the conflict of the 22d of 
 April last, in Callao. 
 
 H. E. should also have taken into account that this eminently democratic government 
 is the only one recognized and cordially congratulated by that of the American Union : 
 is the only one to which H. E. has addressed himself to ask and obtain the reparation 
 due to his fellow-citizens ; and that with this same government he has adjusted and 
 celebrated international conventions, and that it is this government whose authority the 
 citizens of the Union must respect. 
 
 In fine the perfect right of the Peruvian Government to capture the Lizzie Thompson 
 and the Georgiana has not only its origin in the principles of universal justice and inter- 
 national laws, to which the undersigned refers, but also in the express provisions of the 
 existing treaty of July, 1851, which form a positive right, and in which, according to ar- 
 ticle 9th, " the regulations of the coasting trade are respectively reserved to the partic- 
 " ular laws of either party," and according to article 22d "it is only permitted that their 
 " vessels shall frequent the coasts, ports, and places, in which foreign commerce is per- 
 " mitted," and according to article 1st not only was neutrality stipulated, but perfect 
 
50 
 
 friendship ou the part of the government of the Union and its citizens towards that of 
 Peru. 
 
 In relation to the manner in which the capture of the Lizzie Thompson and Georgians 
 and their conveyance to the ports of Callao were effected, H. E. Mr. Clay, misled, no 
 doubt, by sinister information, or carried away by his zeal in the defence of his fellow, 
 citizens, has deviated from the temperate tone, from the reserve and caution which have 
 so strongly recommended him, when lie goes so far as to characterize them as unjustifi* 
 able, cruel (not to say barbarous), and illegal. 
 
 Such definitions, the more grave the higher the source from which they proceed, 
 should not have been ventured upon, unless sustained by evident proofs of the abuses 
 charged ; but if H. E. considers as such abuse the act of leaving on shore the crews, 
 which, without great danger, the Tumbes could neither bring nor keep in custody, if 
 that act be exaggerated, and in certain degree misrepresented, supposing that said 
 crews were abandoned on a deserted coast, without resources, whereas, as H. E. con* 
 fesses, there existed there an establishment, with thirty soldiers naturally well supplied, 
 for the loading of guano; and that moreover, as can be proved if necessary, the com- 
 mander of the Tiunbes left for the same crew small boats and abundant provisions, with 
 the assistance of which they started without difficulty for the port of Arica, where they 
 arrived on the 28th of last month, and after being assisted with the allowance of four 
 reales per day to each individual, they were sent by the Prefect of Moquequa to Callao ; 
 and if, to aggravate unmerited charges, the instructions issued to the commander of the 
 Tumbes be commented upon, and which, belonging to the private affairs of the domestic 
 administration, are not under the control, inspection, or censure of a foreign power ; the 
 undersigned, as a full reply, assures H. E. the Envoy Extraordinary and Minister Pleni- 
 potentiary that, in the manner in which the capture was effected, there has been no 
 disregard to the principles of humanity, in the exercise of which the Government of 
 Peru, and all her people, stand on a par with the most civilized nations, but that it was 
 effected with the precautions and measures which are practised and customary among all 
 nations under similar circumstances. 
 
 In conclusion, the undersigned would cite to H. E. Mr. Clay the repeated decisions of 
 the Supreme Court of the United States, by which foreign bottoms might be followed 
 and seized, even at sea, and carried to American ports for proper trial, for offences 
 against the laws of the State, committed within its territory : decisions are recorded in 
 Cranclts Reports, vol. 6th, page 281, and which seal the conviction of the justice with 
 which the Government of Peru has proceeded, in the capture and trial of the Lizzie 
 Thompson and Georyiana ; as for the rest, the degree of culpability of the captains, and 
 the peimlties which they may have incurred, are matters of the judgment in course, and 
 in which the executive power cannot interfere, but abide by the result. 
 
 In virtue of the foregoing established propositions, the Council of Ministers, in charge 
 of the executive power of Peru, declare: that they do not consider legal, -well-grounded 
 nor admissible, the protest of H. E. the Envoy Extraordinary and Minister Plenipoten- 
 tiary of the United States ; that they sustain the perfect right with which the capture 
 and trial of the aforesaid vessels has been effected ; and that, which is not anticipated 
 from the integrity and ability of H. E. Mr. Clay, should he insist on sustaining that pro- 
 test, the Government of Peru, strong in the assurance of the justice of her position, will 
 appeal directly to the magnanimous Government of the United States, confiding in its 
 undoubted justice and wisdom to obtain the recognition of that right, and consequent 
 reparation for said protest, without entertaining the slightest fear that their expectation 
 would be frustrated. 
 
 'J he undersigned reiterates to H. E. the Envoy Extraordinary and Minister Plenipo- 
 tentiary the sentiments of liis distinguished consideration. 
 
 MANUEL ORTIZ DE ZEVALLOS. 
 To H. E, the Envoy Extraordinary and Minister Plenipotentiary of the U. S. 
 
51 
 
 (Translated from the Spanish.} 
 
 LEGATION OF THE UNITED STATES, ) 
 LIMA, March 9th, 1858. j 
 
 The undersigned, Envoy Extraordinary and Minister Plenipotentiary of the United 
 States, has had the honor to receive, on the 19th ultimo, the note which H. E. the 
 Minister of Foreign Affairs of Peru addressed to him under date of the 18th of that 
 month. 
 
 Before considering the arguments employed by H. E. to answer those contained in 
 the note of the undersigned, of the 9th of February last, he must be permitted to say, 
 that he does not consider it usual to refer to the opinions expressed in official interviews 
 had on occasions some time passed, since such references may lead to contradictions, 
 either in the language employed, or at least in the deductions which in justice are derived 
 from them. Nevertheless, as H. E. has deemed it proper to allude to the conversations 
 had on three different occasions, with the apparent intention of discovering; if any change 
 had occurred in the views of the undersigned, he will rectify the deductions which H. E. 
 has drawn from his observations in the aforesaid interviews. 
 
 In the first place, H. E. alludes to the information from the commander of the war 
 steamer Ucayali, relative to the proceedings of the captain of the John Adams at the 
 Chincha Islands in the month of May last, who declared that "he would protect every 
 " vessel which loaded guano for any American citizen, whatever its flag might be." H. 
 E. read this information, and other documents, to the undersigned, at the interview which 
 took place on the 9th or 10th of May, 1857, and the undersigned framed a memorandum, 
 of this conversation, and communicated it to his government on the llth of May, assuring 
 it" that H. E. the Minister of Foreign Affairs had informed the undersigned that the 
 "commander of the United States man-of-war John Adams landed at the Chincha 
 " Islands, and acting in conformity with Garcia, agent of General Vivanco, interrogated 
 "the agent of the house of Barreda & Brother, being at first inclined to oblige the 
 " vessels chartered by that house to exchange their bills of lading for those in the name 
 " of Samuel F. Tracy, agent of Vivanco in the United States; but that afterwards he 
 " (the commander of the John Adams) concluded by saying that such questions should be 
 " directed to the diplomatic agent of the United States at Lima." 
 
 The undersigned added, that H. E. was not disposed to make a formal complaint 
 for the conduct of the commander of the John Adorns, but that said commander had 
 invaded the jurisdiction which belong to tribunals of Peru. 
 
 The undersigned remembers that H. E. said at this time that he did not pretend to 
 make official complaint, because he desired to avoid disagreeable questions, 
 
 Notwithstanding, the undersigned does not remember having solemnly offered " to ob- 
 " tain from his government due reparation for the conduct of the John Adams" What 
 he said to H. E. was, " that if the acts mentioned by H. E. were clearly substantiated, 
 " he could not approve such conduct, nor would it be done by the Government of the 
 " United States." The undersigned offered to inform his government of the affair, and 
 did so ; but he did not offer to obtain the due satisfaction, which H. E. did not ask for, 
 being desirous to avoid disagreeable questions between the two governments. 
 
 Referring to the opinions of the two members of the bar of Baltimore, transmitted by 
 the Diplomatic Agent of Peru in the United States, H. E. omitted to say that Mr. Osma, 
 alluding to the lawyers, said in substance that it was feared, that the opinion of a jury 
 would be influenced by the arguments of counsel, and the prevailing opinion in the 
 United States that th guano is sold at excessively high prices. The undersigned per- 
 fectly well remembers that he adverted to H. E. that the opinion of these members of 
 the bar (one of whom he understands Was Mr. Reverdy Johnson) was. of great weight ; 
 and that in regard to the fears of Mr. Osma, that a jury would be biased by outside 
 
52 
 
 influences, the undersigned believed them to be destitute of all foundation, because the 
 juries of the United States are composed generally of respectable men, conscious of the 
 sanctity of an oath, and incapable of allowing the force of public opinion, or the argu- 
 ments of counsel to influence their verdicts. On the other hand, the juries only decide 
 upon the facts in litigation, leaving the points of law to the decision of a judge or judges, 
 whose opinions cannot be influenced. The reference to Mr. Caverly had for its object to 
 disabuse the mind of H. E. of whatever doubt might remain respecting the juries, be- 
 cause that gentleman is very well informed by his connection with the courts of the 
 United States. 
 
 Finally, the undersigned remembers that at his interview with H. E., respecting the 
 convention signed in Lima, on the 21st of May, 1857, and published the 6th of June, he 
 asked to be informed "if in case" American vessels went to load guano, " at the deposits 
 " of the republic, without a license in due form, they could be seized, or merely ordered 
 "off by the naval forces of Great Britain and France, exercising police in the Chincha 
 " Islands, or other deposits of guano, which duties belong solely to the vessels of war of 
 "Peru." And the undersigned said to H. E., " that if the convention contained any pro- 
 " visions which could affect in the least degree the independence of Peru, or give to 
 " Great Britain or France an appearance of property in the Chincha Islands, or other 
 '' islands of the coast, or any right to control the commerce in guano with them, he should 
 " deem himself imperatively bound to protest against such an arrangement; or, in other 
 "words, that the undersigned could not view with indifference the establishment of a 
 " protectorate by those nations over these islands, or any other part of the territory of 
 ''Peru." 
 
 H. E. the Minister of Foreign Affairs cannot have forgotten that the undersigned declined 
 taking any part in the arrangement of this convention, " because he did not think the 
 " United States so immediately interested in its object, and he considered it as an usurp- 
 " ation of the independence of the Peruvian nation, and of direct intervention in the 
 " domestic affairs of the country; that he viewed it as a dangerous precedent, capable 
 " of producing political complications, whose results it was impossible to calculate." 
 
 All these reflections of the undersigned were based on the supposition that the Gov- 
 ernment of Lima would recover and take possession of the Chincba Islands, resuming 
 jurisdiction over them. The undersigned did not express at that time any opinion in 
 regard to the vessels which loaded at the Islands under license from the party of Vivanco ; 
 he constantly declined so to do, although he was frequently solicited to that effect, and 
 he would certainly not have touched this matter, if it had not become necessary in the 
 discussion of the capture of the Lizzie Thompson and the Georgiana, by the Tumbes. 
 The undersigned was not under the necessity of giving an opinion, and confesses that 
 this is simply spontaneous. It should be noted that neither the Diplomatic Agents nor 
 the commanders of vessels of war of Great Britain and France ventured to interfere 
 with the vessels which loaded guano at the Chincha Islands, under licenses issued by the 
 party of Vivanco, notwithstanding the very extraordinary stipulation of the 7th article 
 of the convention, which was to begin .and take effect provisionally, and ad referendum 
 from its dale. 
 
 The undersigned has gone into these explanations out of respect to H. E., and to show 
 that there is nothing in his note which could have excited the surprise of the Exmo 
 Council of Ministers, in charge of the executive power of Peru; much less, should it 
 be a cause of such surprise that the undersigned defends the rights and interests of his 
 fellow-citizens, which he considers invaded. 
 
 The undersigned founded his protest on two bases: 
 
 1st. That the Peruvian nation is divided into two hostile parties, one of which sup 
 ports the present administration, or executive power; and the other, a revolutionary 
 party, whose object is to carry into effect a change in the presidency. 
 
53 
 
 2 A That the question between the two parties has its origin in local interests ; that 
 they have in view equal objects, and are limited to the territory of Peru : consequently 
 it is a domestic and internal struggle, in which foreign nations hare no right to interfere 
 nor to decide in favor of either of the two parties. 
 
 With these principles in view the undersigned resumes the discussion respecting tike 
 capture of the Lizzie Thompson and the Georgiana, and will aim to answer satisfactorily 
 the points of the note of H. E. The undersigned will limit himself to the question of 
 the legality of the capture, and will give no opinion upon the validity of the contracts 
 for the sale of guano, made by the revolutionary party, since this question most be de- 
 cided by the courts or tribunals in places where this article has been sent. 
 
 H. E. the Minister of Foreign Affairs, in replying to the undersigned refers to the laws 
 and commercial regulations of Peru, which regulate the clearance of vessels, the expor- 
 tation of guano, and the commerce of the coast ; and argues that, as these laws expressly 
 prohibit the approach of foreign vessels to the national deposits, that the loading and 
 sale of guano are reserved to special agents, and the exportation limited to the < Ti'irf 1> 
 Islands with license from the government, the fact that the Lizzie Thompson and the 
 Gtorgiana were seized by the Tumle* at Punta de Lobos and Pabellon de Pica is more 
 than sufficient, without other proofs, to demonstrate that the said Teasels were occupied 
 -candalous and criminal contraband commerce. 
 
 The undersigned admits, without hesitation, the existence of these laws in their force 
 and application in all the territory of Peru, in time of peace, and when all the P 
 people recognize the same administration of government in the country. In 
 peaceful state of things in Peru, the negation or doubt on the part of other nations as to 
 the authority which the executive has to enforce compliance with said laws, would be 
 equivalent to a denial of the sovereignty and independence of the Penman nation. 
 
 But the case is very distinct, when the state is in the midst of civil war, and divided 
 into two parties, each one of which proclaims that it represents the desires and wishes 
 of the Peruvian people, the origin and source of all legislation and of all laws in the 
 territory of Peru. And such is the true condition of the republic at present, notwith- 
 standing that H. R regards the revolution as "a party which has taken refuge in the 
 " city of Arequipa," and General Rivas, the armed agent of this party, as the chief of a 
 revolted vessel, it is not less true that there are two belligerents in Peru, and that the 
 party of Vivanco has been recognized as such by the Government of Lima and by the 
 -- :ve commandersMn-chief of the forces of the government before Arequipa, 
 
 The National Convention of Peru, in the month of October last, authorized the Exmo 
 
 Council of Ministers to appoint commissioners to negotiate with general Tivanco for the 
 
 pacification of the country ; and the undersigned is informed that said commissioners 
 
 were not sent, because the persons appointed declined accepting the charge ; and finally, 
 
 because the said National Convention was dissolved by force of arms. Notwithstanding 
 
 this, commissioners were appointed by Marshal San Roman, on the part of the govern- 
 
 ieral Vivanco, on the part of the revolution, with the same object; and 
 
 <y the government and the Provisional President, commander-in-chief of the army, 
 
 J the offer of the Chilean Minister. Mr. Irarraxabal, to mediate between the con* 
 
 tendin_ id he was conducted to Islay on board the French war steamer Larvi- 
 
 the reqv.est of H. E. the Minister of Foreign Affairs. 
 
 Therefore it is evident that, by these and other acts, the Government of Lima and the 
 
 ! ent. as commander-in-chief of the army, have recognized the leader of the 
 
 revolution and his adepts, as a revolutionary party, who, as such, enjoy all the rights of 
 
 war in the territory and jurisdiction of Peru, both in relation to natives, and in respect 
 
 to foreign nations. 
 
 The undersigned might go farther, were he not restrained by motives of delicacy, and 
 allude to the circumstance that the government in Lima, as well as the opposition in 
 
54: 
 
 Arequipa, are considered with the character of provisional governments, until the people 
 are convoked for the election of a president ; which is equivalent to saying that the 
 people, the source of all power in the republic, have not, by their sovereign will, as yet 
 decided between the parties. 
 
 Such being the state of affairs, neither foreign nations nor their citizens or subjects 
 have the right to decide this question ; and in their relations with Peru, it only belongs 
 to them to accept the condition of things as they have found them. They cannot dispute 
 the jurisdiction nor question the authority of the local employees, because to deny them 
 would be an actual invasion of the independence of the Peruvian nation. 
 
 We will again speak of the validity or morality of the contracts made by the opposi- 
 tion for the sale of guano ; and the undersigned has already observed that he does not 
 give an opinion, but he repeats that the leaders of the revolutions which succeed one 
 another in Peru, have always disposed of the property of the nation to procure money 
 and arms to sustain their cause, under the pretence of representing the national will; 
 and in the moral point of view, this is not the worst course which they have taken, among 
 the other expedients they have made use of. As a question of morality, the difference 
 is very trifling between the issuing of bonds, for whose payment the revolutionary leaders 
 pledge the national property and revenues, for the purpose of procuring funds, and the 
 exportation and sale of guano from the deposits, because this article is the principal source 
 of the revenues of the country, with which those bonds are to be redeemed. 
 
 The undersigned has insisted in these observations, because H. E. accused the captains 
 of the before mentioned vessels of having committed a scandalous robbery of guano. 
 
 The revolutionary party considered as a belligerent is authorized by the laws of war 
 to occupy the provinces and towns of the republic, take possession of the property of 
 the state, make use of the public revenues, change the local authorities, and exercise 
 other rights inherent to jurisdiction ; from which it consequently follows that in occupy- 
 ing the province of Iquique, the official who commanded the forces of the revolution was 
 authorized by his chief to do all he possibly could to advance his cause ; and by the laws 
 of war he was justified in denying the jurisdiction of the Government of Lima, changing 
 the collector and other authorities of the port, and suspending all the decrees which 
 affect the property and public revenues in that province, particularly those of a simply 
 administrative character. 
 
 And notwithstanding the suspension of the regulations relative to the exportation of 
 guano, and of the formalities to be observed by the vessels which go to the deposits to 
 load guano ; and notwithstanding that those relating to coastwise commerce were not 
 affected by any special decree, the licenses issued by the authorities who were at the port 
 of Iquique to the Georgiana and Lizzie Thompson, for going to Pabellon de Pica and 
 Punta de Lobos, destroyed for them the obstacles interposed by said laws and regula- 
 tions respecting the coastwise commerce, and the approach of foreign vessels to the de* 
 posits and places of the province. 
 
 On the other hand, it is not to be denied that vessels which enter foreign ports are 
 obliged to recognize the authorities which they find, without prying into their origin, 
 The employees of the port are the source to which the captains must go to enter, or sail, 
 and inform themselves of the laws and mercantile regulations. Obedience to them is one 
 of the principal conditions required for the right of commerce with a country, and -what- 
 ever the laws and local regulations of Peru may be in the case of the entry of foreign 
 vessels, these authorities must be considered as the legitimate interpreters of those reg- 
 ulations, they being alone responsible in case the vessels are misdirected. 
 
 The captains found General Rivas, a Custom-House and fiscal employee, in Iquique ; 
 for them it was sufficient that these persons were in possession of the place, exercising 
 jurisdiction, and if the authority exercised by General Rivas and the other employees, 
 and the licenses issued, were illegal, summon them in good time to respond before the 
 tribunals of the nation for having assumed these functions ; but it did not beling to for- 
 
eigners to investigate such questions nor dispute the jurisdiction of the authorities they 
 might find in the ports of Peru. 
 
 It should also be taken into consideration that these American vessels did not go to the 
 deposits of Pabellon de Pica and Punta de Lobos to load guano for account of their 
 owners; they went therein virtue of charters made by persons who held contracts for 
 the exportation of the guano, and acted as simple carriers without interest in the cargoes, 
 but simply in the freight. Moreover, the guano was taken on the beach and put on 
 board by those who occupied the deposits. 
 
 The vessels were innocent carriers without property in the guano on board, and with- 
 out any expectation of the profit which might be derived from its sale. As simple car- 
 riers they were not obliged to learn the nature of the contracts made by their charterers; 
 and if these contracts were fraudulent or illegal, the government should have proceeded 
 against their authors, and not against the vessels. 
 
 For these reasons, and others which might be adduced, the undersigned believes that 
 the aforesaid vessels have not committed any infraction of the laws and mercantile regu- 
 lations of Peru in the province of Iquique, and that consequently their capture was not 
 of perfect right. 
 
 As H. E. the Minister of Foreign Affairs has deemed it proper to comment upon, and 
 gives so much importance to, the words regularly established, employed by the undersigned 
 in speaking of the Custom-House of Iquique, the undersigned would remark that in 
 using this term, he did not refer to the source from whence those authorities received 
 their commissions. The words established in due form, means that they established a 
 Custom-House at the port, with employees, and nothing more. If the interpreter of the 
 Minister of Foreign Affairs has transposed the words, saying " established regularly," he 
 has perverted the idea of the phrase. 
 
 The undersigned cannot agree with H. E. that the Custom-House of Iquique was " a 
 " positive farce " performed by the military chief of a revolted vessel, who has no other 
 support than that which he has under the fire of his cannons. The undersigned under- 
 stands that General Rivas held the commission from the revolutionary party, as com- 
 mander-in-chief of the navy; that the steamship Apurimac concentrated in herself the 
 principal force of the Peruvian fleet ; that she had been sent to cruise on the coast of 
 Peru, which adhered to the revolution, and that finally the attitude taken by that ship 
 was one of the principal causes which led to the signing of the convention of May 24th, 
 1857. Such acts appear to be entirely the reverse of a farce. 
 
 The obligation on the part of foreign residents in the country, and of the foreign ves- 
 sels which arrive at the ports of Peru, to recognize the local authorities and their orders, 
 has become more evident from the facts the Government has not proceeded to again 
 collect from the merchants the amount of the duties paid by them to the authorities of 
 the party, and the goods entered by the Custom-Hoiise have remained in their power. 
 Nor have they proceeded against the vessels which have arrived at Callao from Iquique 
 for the port and tonnage dues which they had paid to the revolutionary authorities of 
 the last-named port. 
 
 If these acts had not been considered binding, the merchants and the vessels would 
 have paid double duties. 
 
 Another proof that the responsibility of official acts always belongs to the authorities 
 which execute them, may be found in the fact that the Peruvian nation has always re- 
 paid the forced loans and tho contributions imposed during a period of revolution on the 
 foreigners resident in the republic. 
 
 For these and other reasons which may be adduced, the undersigned considers the 
 capture of the Lizzie Thompson and Georgiana as illegal. 
 
 Having demonstrated that the revolutionary party, in the exercise of the right of a 
 belligerent, suspended, in the case of the American vessels, the prohibition to load and 
 export guano from Pabellon de Pica and Punta de Lobos, the undersigned will endeavor 
 
56 
 
 to prove that the mode of procedure against the vessels was irregular, and the detention 
 of their captains and mates illegal. 
 
 Supposing that the vessels were liable to capture, their cases should have been sub- 
 mitted to the collector of the Custom-House of the province where they committed the 
 wrong. Article 26 of the Regulations of Commerce provides : " That the collectors of 
 " the principal Custom-Houses in the territory which they comprise, are the judges in the 
 " cases and for the causes specified in this regulation." Consequently, the collector of 
 the Custom-House of Callao could not in any case have jurisdiction in the causes of the 
 Lizzie Thompson and Georgiana. Such has been the practice in the few cases of seizure 
 of foreign vessels which have been submitted to the tribunals of the country. Such was 
 the course with the English brig Hibernia, which was seized for being at the Lobos 
 Islands in the year 1845, which was tried in the first instance by the collector of the 
 Custom-House of San Jose de Lambayeque, afterwards, on appeal, by the Court of 
 Truxillo, and finally the Supreme Court of Lima. By the law 15, title 1st, part 7th, of 
 the Spanish laws, also in force in Peru, a criminal cause must be submitted to the Judge 
 of the place where the offence was committed. Consequently, in conformity with the 
 article of the Regulations of Commerce, and the law cited, the proceedings against the two 
 vessels and their captains by the collector of the Custom-House of Callao, are null. 
 
 Further, the imprisonment of the captains of the Lizzie Thompson and Georgiana, in 
 Casas-matas, after the arrival at Callao, and all the proceedings had against them, are 
 null and offensive for other reasons. By article 30th of the Treaty of the 26th of July, 
 1851, it is stipulated that the citizens of either republic accused of any offence, "shall 
 " in every case be brought for examination before a magistrate or other legal authority, 
 " twenty-four hours after their arrest, and in case the accused be not so examined, he 
 shall forthwith be free from custody." 
 
 The captains referred to were taken from their vessels, and carried as prisoners on 
 board the Tumbes, which went, on the 24th of January last, with the intention and for 
 purpose of making an arrest; brought in the steamer, and lodged in Casa-matas; the 
 collector did not take their depositions, neither did he examine them until the 20th of 
 January, that is to say, five days after their arrest, when, according to the terms of the 
 treaty, neither the judge of contraband and confiscations, nor any other magistrate, have 
 the least right to proceed against them, because their declarations were not taken during 
 the twenty-four hours following their arrest. 
 
 If the commander of the Tumbes had permitted the captains to remain on board their 
 vessels, and had ordered them to come to Callao for their trial, the procedure against 
 Captains Wilson and Reynolds, and the taking of their declarations, would have been in a 
 measure justified ; but this course not having been pursued, the accused should have 
 been put at liberty immediately after their arrival at Callao. 
 
 The undersigned, during the entire of the present correspondence, has aimed to avoid, 
 so far as possible, all allusions to the origin and progress of the revolutions which have 
 taken place in Peru. There are certain observations, however, in the note of H. E 
 which make it necessary to refer to them. 
 
 H. E. in replying to the observations made by the undersigned, in regard to the Cus- 
 tom-House of Iquique, objects that they were " authorities de facto" in the following 
 terms'. "And the expression of this idea is as much more grave and transcendental, as is 
 " founded on the possibility of the existence of subaltern authorities de facto, of which 
 "the best writers have not treated up to the present time, limiting the qualification only 
 "to the government de facto." 
 
 The word " authorities de facto " were employed by the undersigned as synonymous 
 with " existing," without any reference to the cause of this existence, or the source whence 
 these authorities derived their powers of action. Jf the term has been applied to the 
 government, or to the subaltern authorities, it would naturally lead to some inve.tiga.- 
 
tion touching the origin or legitimacy of such government ; and the use of the term im- 
 plies the idea that such an investigation was not intended or admitted. 
 
 When the authorities of greatest note wrote their treatises on the law of nations, the 
 countries which have since been the theatre of almost periodical revolutions, and the fre- 
 quent examples of interior strifes, were colonies, and their effect upon the affairs of the 
 other nations had not occurred. Very little has been said by these authorities respect- 
 ively, even in regard "to the governments de facto ; but if they had written at the 
 present time, they would, without doubt, have extended their observations to the acts of 
 the authorities de facto. 
 
 The undersigned asserted, in his note of the 9th of February, that the crews of the 
 Lizzie Thompson and Gcoryiana were taken by force from their vessels, embarked in 
 their boats, and abandoned on a sterile and inhospitable coast, without provisions or 
 water, and he further said, that such a mode of executing the capture was unjustifiable, 
 cruftl, and illegal. 
 
 H. E., in commenting on the expression, remarks that such terms should not be " ven- 
 tured without positive proofs," and gives the assurance that the fact of having left the 
 crew on shore, who could not be convoyed or guarded by the Tumbes without grave risk 
 is exaggerated, and to a certain degree very different .from the abandonment of said 
 crew on the desert coast. H. E. adds, that in case of necessity he can prove that the 
 commander of the Tumbes left the crew in small boats with abundant provisions. 
 
 The undersigned does not intend to enter into a new discussion upon this point, but he 
 will state to H. E. that whenever he refers to facts, his assertions can be sustained by 
 documents. In confirmation of which, he has the honor to accompany certified extracts 
 of the reports of the Consul of the United States at Arica, dated 5th ultimo, and the 
 declarations of the second mate and fifteen men of the crew of the Lizzie Thompson 
 taken before the United States Consul at Callao, which affirm under oath that they were 
 abandoned by the Tumbes in their dismasted boats, at Pabellon de Pica, without pro- 
 visions or water. 
 
 This evidence in connection with the assertions contained in the declarations of the 
 captains of the vessels before the Consul of the United States at Callao, are more than 
 sufficient to rebut and destroy any asseveration to the contrary by the commander of the 
 Tumbes. 
 
 The undersigned, after a careful review of all the circumstances connected with the 
 causes which are under consideration, has been unable to discover any sufficient reason 
 for retiring the protest contained in his note of the 9th ultimo. Said protest has not been 
 made with hostile intent, but simply in behalf of the owners and others connected with 
 and interested in the said vessels. And although the undersigned sincerely regrets not 
 having been so fortunate as to arrive at a settlement at the outset with H. E. the Minis- 
 ter of Foreign Affairs, the undersigned does not doubt that his views will be sustained, al- 
 though the Government of the United States may attend to the direct appeal which 
 Peru proposes to make, as stated in the note of H. E. of the 18th ultimo. 
 
 The undersigned has the honor, on this occasion, to renew to H. E. the Minister of 
 Foreign Affairs the assurance of his highest consideration. 
 
 (Signed) 
 
 J. RANDOLPH CLAY. 
 
58 
 
 Mr. OSMA to Mr. CABS. 
 
 (Translated in the Department of State.) 
 
 LEGATION OF PERU ix THE UNITED STATES, ) 
 Washington, March 27, 1858. f 
 
 The undersigned, Minister Resident of Pern, in pursuance of instructions received 
 from his government, has the honor of begging the Secretary of State of the United 
 States to be pleased to direct his attention to the claims addressed to the Peruvian 
 Government by the Minister of the United States at Lima, as they appear in the notes 
 of the 4th and 9th of February ultimo, which he deemed it proper to transmit to His 
 Excellency, the Minister of Foreign Relations of Peru, and which are now within the 
 reach of the Secretary of State. 
 
 The Minister of Foreign Relations of Peru has minutely and satisfactorily answered 
 all that was alleged in the notes referred to, accompanying such answer with the proofs 
 and documents upon which the government of Peru relies to deny in toto the justice, 
 and even the plausibility of the claims to which reference is made. 
 
 The undersigned would deeply regret that the documents and declarations alluded 
 to should not have been communicated to the Cabinet of Washington ; for through them 
 only can an equitable settlement be made of the serious questions which have been 
 started in that correspondence. 
 
 In instructing the undersigned to enter into direct communication with the Govern, 
 ment of the United Slates, the Government of Peru was moved by the desire that no 
 effort should be wanting on its part to satisfy the former of the sincerity and good faith, 
 with which the latter has in this case striven, as it will ever strive, to cultivate and 
 deserve its friendship. It also had for its object to show in this form the deep reliance 
 which it has ever placed in the moderation and the equity of the Government of the 
 United States, preferring to recur to them rather than continue, with its Minister at 
 Lima, a discussion, in the course of which the Government of Peru regrets to have dis- 
 covered in his proceedings a want of that impartiality and friendly disposition so neces- 
 sary to maintain, in all cases, relations of good understanding between governments. 
 
 In his communication, dated on the 4th of February last, the Minister of the United 
 States in Peru calls the attention of that government to the case of the American barque 
 Dorcas C. Yeaton, and of her captain, Samuel Potte, alleging the following in said 
 case : 
 
 That on the 23d of January, 1858, in latitude 22 13', longitude 71 31', on the high seas, 
 at seven o'clock A. M., said barque was detained by the Peruvian armed steamer Tumbes, 
 with hostile demonstrations; that the barque having heaved to, Lieutenant Duenas, the 
 commander of the steamer, ordered her to be boarded, despatching for that purpose 
 one of his boats under the order of an officer; that said officer boarded her, in fulfilment 
 of his orders, and asked, in the language of authority, to be informed of the route which 
 she was pursuing, as well as for the delivery of her papers ; that Captain Potte obeyed 
 under protest, and that the Peruvian officer went back to the steamer with the papers; 
 that he soon returned, ordering the captain to accompany him on board of the Tinnlca ; 
 that Captain Potte refused, and insisted that the flag and character of the vessel should 
 be respected, but that, the officer repelling all excuse, the captain was compelled to 
 obey, although protesting that he would make Commander Duenas and his government 
 responsible for the outrages which were committed against him ; that on his reaching 
 the steamer, he again protested before her captain against the unlawfulness of such acts, 
 tut that his representations were disregarded; that the captain of the Tumbes eventually 
 
resolved that the barque should not continue her course, but, on the contrary, to send 
 her under duress to Callao ; that lie abstained from taking forcible possession of her out 
 of respect for the wife and family of the captain who were on board, but exacted his 
 word of honor, that he would immediately and directly proceed to Callao ; that, accord- 
 ingly, the Dorcas C. Yeaton proceeded for that port, with a prize officer on board de- 
 tached from the Tumbes for that purpose. 
 
 The Minister of the United States alleges that the barque, upon her arrival at Callao, 
 was boarded by an officer of the captaincy of the port, who took possession of her 
 papers, and ordered Captain Potte to accompany him ashore, treating him in an arbitrary, 
 rude, and threatening manner; that the captain had no choice but that of obedience, and 
 that he was then taken to the office of the port captain, and thence to the residence of 
 the gov r ernor, where he was examined and asked whether he wanted a cargo of guano 
 for the United States, in which case he was told that one would be given to him when 
 he was set at liberty. The Minister adds, that the conduct of Commander Duefias 
 had been approved by the Council of Ministers of Peru, and sustained by the Minister of 
 Foreign Relations in an interview which he had with His Excellency. Reassuming these 
 facts, after alluding to them in detail, the Envoy Extraordinary and Minister Plenipoten- 
 tiary of the United States concluded by denouncing them as a serious insult to the flag, 
 the rights, and the dignity of the United States, and in consequence thereof, peremptorily 
 demands 
 
 First. 'That the Government of Peru shall [give such satisfaction, as the Government 
 of the United States may prescribe. 
 
 Secondly.^-Th&t Lieutenant Don Ygnacio Duefias be suspended from his command, 
 and continue out of the service of the republic for such time as the government of 
 the United States may define; and, 
 
 Thirdly. ->-That ample indemnification be made to the owners of the Dorcas C. Yeaton t 
 for all damages that may result from the facts mentioned. 
 
 Before reaching conclusions so serious as these, which might involve still more serious 
 consequences, and demanding a satisfaction which is, in terms, most offensive to Peru, 
 because they imply nothing less than the annulment of her laws and tribunals, the Min- 
 ister of the United States in Lima, it was to be hoped, might have dwelt with some 
 measure of soberness and attention in his investigation on the grounds of claims that are 
 so serious, peremptory, and extraordinary. The Government of Peru has certainly, up to 
 this time, evinced no disposition in the least to violate the rights or to insult the dignity 
 of the United States ; and, although such a disposition may be unjustly, gratuitously, 
 and groundlessly imputed to her, the relative circumstances and forces of the two 
 nations, no less than the fact that the interests of Pern depend on the continuance of her 
 pacific relations with all nations, and especially with the people of the United States, 
 would seem to tell sufficiently upon any dispassionate mind to render impossible the 
 very idea that the Government of Peru should attempt or pretend to dishonor the flag of 
 that republic. No doubt it is quite possible that, in Peru, as in any other country, an 
 officer in her service may commit, through want of reflection or due prudence, some act 
 which would require satisfaction ; but it seems impossible that his government, proceed- 
 ing in a dispassionate manner, and with a knowledge of the facts, should, without reason, 
 assume upon itself the very serious responsibility of adopting and approving such a con- 
 duct. The very fact of the government's publicly approving the conduct of Commander 
 Duefias, it seems to the undersigned, ought to have started some doubt in the mind of 
 the enlightened Minister of the United States at Lima as to the accuracy of the facts on 
 which he has insisted with so much energy. 
 
 The experience which His Excellency, through a long residence in Peru, has gathered 
 as to the character of its government, the deep and habitual respect with which it has 
 
60 
 
 ever received and entertained his communications, the personal consideration which it 
 has ever lavished upon him, and the important concessions which have constantly been 
 made to him, only out of respect for him and for the nation which he represents ; all 
 these, it seems, ought to have checked the severe and hasty judgment which he has been 
 pleased to pass upon this matter. At the time of writing his communication, His Excel- 
 lency had under his eyes Commander Dueiias' official report, published on the 30th of 
 January, in the Peruvian, the government's official paper, which positively states that the 
 change in the vessel's course was made in consequence of an " agreement " with the 
 captain ; and whilst His Excellency is pleased to assume, as truthful, one sentence of the 
 report which will be hereafter alluded to, and which he considers accusatory of the 
 commander of the Tumbes and of his government, he chooses to argue of falsehood the rest 
 of the document which testifies the good faith and legality of the conduct of that officer. 
 
 In order to set up and sustain the serious claims referred to, the Minister of the United 
 States relies exclusively on the protest made for the purpose on the 23d of January, 
 1858, by Captain Potte, his pilot, and two of his sailors. The Minister of Foreign Relations 
 of Peru, in his note of the 9th of February, communicated to the Minister of the United 
 States in Lima the minutes of the declarations of Captain Potte, the pilot, John P. Cogg- 
 well, and the second pilot, Joseph P. Cunningham ; as also those of the commander of the 
 Tumbes, of the officer who boarded the Dorcas C. Yeaton, of the five sailors who were in 
 the boat with him, together with that of the marine who was transferred to Callao in 
 the barque ; all taken before the judge of the first instance at this port, sworn to and 
 subscribed by all of them, and all evidencing the complete falsity of the allegations of 
 the protest, as the Honorable Secretary of State will perceive from the copy which the 
 undersigned has the honor of transmitting to him. From these declarations Honorable 
 Mr. Cass will see that the true relation of the facts is the following : 
 
 Commander Duefias having been ordered to pursue and capture those vessels which, 
 according to the information of the government, had gone to Punta de Lobos and Pa- 
 bellon de Pica, in collusion with the insurrectionists of the south of the republic, for the 
 criminal purpose of working the deposits of national guano at those points, met on his 
 voyage the Dorcas C. Yeaton, which was sailing in that direction. He made the usual 
 signal to her to heave to, and sent an officer to her, unarmed and accompanied by five 
 men in a boat, the men also being unarmed, in order to ascertain whence she came and 
 whither she was sailing. The sailors remained in the boat, and the captain went on 
 board in the most peaceful manner, the captain receiving him courteously on the deck of 
 the barque. Being asked whence he had come, and to what point he was going, the cap- 
 tain answered that he was on his way to Iquique, and voluntarily exhibited his papers, 
 and as readily delivered them also to the officer, who returned to the steamer. The 
 papers showing a discrepancy, namely, that the barque had been cleared for Callao by 
 the way of Valparaiso, whence it had proceeded, whilst the Consul of the United States 
 at that port had cleared her for Iquique, the officer returned to inquire the cause of this 
 irregularity, and the captain of the barque, wishing to give a satisfactory explanation, 
 proceeded of his own accord and will aboard of the Tumbes, where he entered into a 
 free and voluntary communication with its commander. Mr. Duefias being convinced, 
 by Captain Potte's representation, that he had no other object in going to Iquique than 
 to secure freight to return home, he promised him, if he would return to Callao, he 
 would be liberally paid for his delay, and that he would procure him a cargo of guano 
 from the Chincha Islands, with a most profitable freight. Commander Duefias' object in 
 making this proposition was assuredly to turn the barque aside from a criminal under- 
 taking, which might have involved its owners in fatal consequences, and complicated 
 the relations of both nations. It went also to deprive the insurrectionary forces of the 
 advantages which they might derive from the plundering of the guano deposits, by sell' 
 ing one more cargo of that article. Captain Potte could not but find the offer a most 
 advantageous one, and he not only accepted it, but also asked Commander Duefias for a 
 
61 
 
 format communication for the general commandant of the marine at Callao, in order that 
 the arrangement might be carried out without any delay ; requesting, at the same time, 
 that he might be accompanied by an officer of the Tumbes, in the character of a passen- 
 ger, to bear this communication. To this Mr. Duefias assented, and Captain Potte cheer- 
 fully proceeded to Callao, where the agreement was carried out, and he was given, on 
 the part of the government's consignees, a contract of freight to carry guano to the 
 States, at the rate of twenty dollars per ton, and, besides this, the large sum of nine 
 thousand six hundred dollars for all expenses of demurrage, and such damages as might 
 accrue to him, in any manner, from the change of her voyage under the circumstances. 
 It is remarkable that this statement is backed not only by the declarations above cited, 
 but that also on the 1 st of February, three days before the communication of the Minister 
 of the United States in Lima, Captain Potte made affidavit of the same, and signed it 
 before the Consul of the United States, who certified to it, as appears from the copy on 
 file in this legation, embracing also the terms and conditions of the agreement. The un- 
 dersigned has the honor of tendering to the Secretary of State all the official documents 
 relative to the business, by which the accuracy of the facts which he has just related 
 will originally and incontestably appear. 
 
 The undersigned has merely to advert to the commentary which the Minister of the 
 United States in Lima makes on the expression used by Commander Dueflas in his official 
 communication or statement, when he says, " I made Captain Potte come on board." This 
 phrase seems scarcely to be considered worthy of a serious official communication, or of 
 special mention ; and the undersigned inclines to the belief that the minister has Hot, in this 
 instance, appreciated with his usual accuracy the true value of the words a very natural 
 thing when a foreign language'is in question, however well known that language may be, 
 The phrase to "make come" does not necessarily imply the use of force or coercion. A 
 friendly invitation or a mere suggestion can " make come" just as well as a threat or an 
 act of violence. That Mr. Duenas used the phrase in a plain and not inoffensive sense 
 is proved, not only by his own declaration, but by that also sworn to by Captain Potte, 
 who, referring to the interview on board of the Twnbes, and of the other facts, says that 
 "in all those acts there was, on his part, the most ample liberty, without his suffering 1 
 " any intimidation." If any greater confirmation of this solemn declaration could be re* 
 quired it might be found in the document cited above, which was subscribed before the 
 Consul of the United States on the 1st of February, in which Captain Potte also asserts 
 " that he has no complaint to make nor blame to cast against the said commander of the 
 " Tambes or his government." 
 
 In view of such facts, so authentically and solemnly put together, not only by the 
 Peruvian officers who participated therein, but by the very witnesses, themselves in- 
 terested, who drew up the protest upon which the Plenipotentiary of the United States 
 has grounded his claim, it seems to the undersigned Unnecessary to go into a discussion 
 of the questions of law which have been broached in the correspondence between His 
 Excellency and the Minister of Foreign Relations of Peru. The facts assumed having 
 no existence, there is no ground for an accusation, nor can there be any reason for de- 
 fence or vindication. And here the undersigned must declare his inability to understand 
 the intentions of the said Plenipotentiary of the United States in stating in his com- 
 munication of the 10th of February to the Minister of Foreign Relations of Peru, after 
 having received the documents mentioned, that he sees "no good reason to change or 
 "modify his demand for satisfaction for the offence committeid against the ilag of the 
 " United States by the commander of the Tumbes."' The declarations of the captain of 
 the Dorcas C. Yeaton and of his mates have to be either false or tr'ue ; if the former, 
 the cause of the complaint Which, according to His Excellency, exists, Cannot be con- 
 ceived, since they positively deny the fact of violence, of arbitrariness and coercion^ 
 which was the exclusive ground for the supposed offence; if the latter, being given 
 under oath, it is equally hard to suppose that the United States Minister in Lima, or the 
 
63 
 
 enlightened government which lie represents, can hold up such persons to the world as 
 worthy vouchers for a serious accusation against a friendly nation whose officers men 
 of honor and of character indignantly deny it under the solemn responsibility of an 
 oath, whilst their government itself formally disclaims the offensive intention implied 
 from the presumed facts. If Captain Potte and his mates are capable of making a false 
 declaration, they must be equally so of making an unfounded protest. The one cannot 
 be ascribed to them without ascribing the other also. 
 
 The undersigned does not pretend to solve so difficult a question, because it is not his 
 duty to do so. It is enough that, with all due respect, he should cast back a gratuitous 
 accusation, without taking upon himself the defence of the witnesses who have been 
 called to support the charge. On the contrary, he would most sincerely wi^h that he 
 could find some reason for impugning the assertion under oath, made by Captain Potte 
 and his mates, that he had made his protest in consequence of the instigations of the 
 Consul of the United States, and of orders, as he understands, of tlie Minister resident of 
 this capital. If there be no mistake, as the undersigned hopes there may, in this and 
 the subsequent statement, made by Captain Potte, to the effect that, in the room of the 
 chief clerk, and in his presence, said minister had reproved him for accepting the con- 
 tract for freight, already referred to, " adding that he acted under bad advice ;" then 
 would be revealed, in a broader light, on the part of the Minister Plenipotentiary of the 
 United States in Peru, a spirit no way subservient to the impartial examination of ques- 
 tions of so delicate a nature, and one, it may be, incompatible with the due exercise of 
 his high functions at the seat of government of Peru. 
 
 Before passing over to the other question, to which the undersigned would desire to 
 call the attention of the very honorable Secretary of State, he cannot but advert to the 
 remarkable observation made by the Minister of the United States in Lima, in his com* 
 munication of the 4th of February, in which he lays down the gravamen, as it were, of 
 the offence attributed to Commander Duenas, in attempting to visit a vessel of the 
 United States on the high seas, " in a time of profound peace." It is hard to realize the 
 words quoted in view of the facts laid down by the minister himself, in his communica- 
 tion of the 9th of February, in which, in order to sustain the legality of the traffic in 
 Which the vessels captured at Punta do Lobos and Pabellon were engaged, His Excel' 
 lency declares that Vivanco's rebellious party, under whose protection the vessels re- 
 ferred to pretended they were acting, was "in a state of civil war'' with the lawful 
 government, and therefore invested with the rights of a belligerent nation. If the 
 revolutionary party be a belligerent one, even so must be the government against which 
 it is waging war ; and, consequently, the minister himself, by his own argument, declares 
 that " Peru is in a state of civil war." And, therefore, according to the doctrine of His 
 Excellency. Peru exhibits the spectacle, somewhat anomalous indeed, of being at one 
 and the same time at peace and at war. It is at peace when its belligerent rights are to be 
 denied ; it is at war when it is sought to refuse it the right of a nation at peace, and in j 
 vest the plunderers of its property with the respectable character of neutrals engaged in 
 lawful trade by the laWs of war! 
 
 The Secretary of State, with his great experience in questions of this nature, will not 
 fail to perceive that the true principle of the law of nations, which applies to the present 
 case, is equally removed from the two extremes, where it is placed by the Minister of 
 the United States in Lima. Without being in a civil war, recognized as such in the 
 interior, or by the exterior of the republic, Peru regrets the existence, in a portion of her 
 territory, of a rebellion against the lawful government, supported by the mass of the 
 nation, and recognised by other governments. Speculation and plunder being the exclu* 
 Bive ends of that rebellion, the rebels have directed their forces almost exclusively against 
 the deposits of national guano; and, by means of a war-steamer, which the President of 
 the Republic has declared to be a pirate, they have been, from time to time, successful 
 in defrauding the public treasury of large sums of money from the sale of guano at any 
 
63 
 
 price, inviting the adventurers of other nations to go and load their vessels "with that 
 article. The illegality of this traffic requires no demonstration ; and the Government of 
 the United States, which would be the last to tolerate such in its own case, would also 
 not fail to stamp with serious reprobation any participation in it by its citizens. As 
 little does the undersigned doubt that this government would consider itself fully 
 bound to prevent, in its own case, a spoliation of its property by the citizens of another 
 nation, conniving with its own in a state of insurrection, and to adopt measures for visiting 
 suspicious vessels at those places where they might reasonably deem it proper to exer- 
 cise a lawful supervision. The Government of Peru and the undersigned by no means 
 deem it necessary, in this case, to discuss or put forward the right of visitation. Hon- 
 orable Mr. Cass has verbally stated to the undersigned that there are cases in which 
 a national vessel might be justified in visiting a merchant vessel on the high seas, and 
 that the Government of the United States would not, in such cases, make a formal re- 
 clamation ; and the Honorable Secretary of State had the kindness to put a case entirely 
 applicable to the case and circumstances of the Tumbes, when she signalled the Dorcas 
 C. Yeaton to heave to. This is enough to absolve the undersigned from the necessity of 
 insisting here on the right which all nations have to protect themselves, under certain 
 circumstances, independently of the strict question -of belligerent arid neutral prin- 
 ciples. 
 
 The port of Iquique, to which Captain Potte was shaping his course, is one of the 
 ports of the Peruvian territory frequented by the piratical steamer already mentioned. 
 The principal cargo to be derived from its neighborhood must be one of national guano. 
 The discrepancy between the clearances, one being for Callao and the other for Iquique, 
 clearly confirmed the suspicion, raised by the direction which the vessel was pursuing 
 and the locality where it was met. The courtesy with which, this notwithstanding, she 
 was treated the total absence of extortion or violence, and the marked advantages 
 which it derived from the interruption of the voyage everything should go to satisfy 
 the Secretary of State, as the undersigned trusts, of the respect and consideration which 
 the Government of Peru and its officers strive to pay to the flag of the United States, 
 and to the rights of its citizens. 
 
 With these observations, the undersigned passes on to the consideration of the de- 
 spatch of the United States Minister at Lima, dated February 9th, through which His 
 Excellency claims against the Government cf Peru all the damages and injuries which 
 may ensue from the capture of the American vessels Georyiana and Lizzie Tliompson by 
 said war-steamer Titmbes, and from their subsequent detention by the Peruvian Govern- 
 ment. His Excellency also calls for the responsibility of the Government of Peru in the 
 premises. 
 
 The facts in which the above-mentioned claim is founded admit less controversy than 
 those of the case discussed in the first instance. The Georgiana was captured at Punta 
 de Lobos, on the 24th of January, 1858, and the Lizzie Thompson, on the same day, at 
 Pabellon de Pica. Both had on board part of their cargo of guano from those deposits ; 
 the confessed object of their presence at the points referred to being to take in guano 
 for exportation to foreign ports. They were taken under capture to Callao, where their 
 captains, H. A. Wilson and Stephen Reynolds, with the mate of the Georgiana, L. A. 
 Hamilton, after three days' imprisonment, were released, under security, as they were 
 charged with a violation of the criminal laws of the republic. The Minister of the 
 United States in Lima deems it proper to maintain, in his afore-mentioned communica- 
 tion, three propositions in relation to those facts : 
 
 First. That neither the vessels nor their captains had participated in any criminal or 
 scandalous contraband. 
 
 /SfeeoK%. That the arrest of the vessels and of their officers was not in virtue of a 
 perfect right. 
 
Thirdly. That the manner of the arrest and of taking them to Callao was irregular, 
 cruel, and illegal 
 
 The undersigned intends to give each of these propositions its relative consideration, 
 without, however, entering upon the discussion of some points set forth in connection 
 with them by the Honorable Minister of the United States a connecting which, in the 
 humble opinion of the undersigned, as touching the legitimate object of the controversy, 
 is not quite as apparent as might be desired. 
 
 It is needless to repeat that Punta de Lobos and Pabellon de Pica are two points 
 where deposits of natural guano are found, public property of the Republic of Peru. 
 In the " report on the commercial relations of the United States with foreign nations," 
 transmitted on the 4th of March, 1856, to the House of Representatives, by the worthy 
 predecessor of the Honorable Secretary of State, and printed and distributed by order 
 of Congress, is to be 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." Ar- 
 ticle 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 will have been found 
 " aboard, the captains and crews to be handed over to the action of customary justice, to 
 " be tried as delinquents in case 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 vigor, 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 14th, March 21st, and May 10th, 1842, lately 
 reprinted for abundant caution in the official of the 27th of February, 1857. They de- 
 clare " 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 Chiucha group;'' that no authority of "the republic can, in any case, grant permits 
 " to take out guano for foreign exportatation, and that the custom-houses, with the ex- 
 " ception of 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 de- 
 " posits, or those relative to the taking out of guano from other points except those des- 
 ignated, 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 de- 
 cree of the 1st of April, 1857, which was published in the official paper of the 2d 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 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 vigor at the time 
 
65 
 
 when the Georgiana and the Lizzie Thompson were captured laws promulgated, the 
 most of them, many years back, and the most recent of them nearly ten months before 
 the arrest was made ; the Government of the Union itself having nearly two years be- 
 fore 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 prop- 
 erty 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 con- 
 form their action to those laws, or to incur the penalties which they provide. It being 
 also granted and acknowledged, 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 acknowl- 
 edged distinction of the honorable representative of the United States in I ima, 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 Tquique 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 per- 
 mission 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 well known; that, according to the 
 modern doctrine of the rights of nations, the two contending parties occupy towaid 
 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 Hon. 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, prose- 
 cuting 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 Iquiqne 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 
 Hon. 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 beep admitted as a sound principle. But 
 
 9 
 
66 
 
 this principle, which is exceptional in its origin and legitimacy, has never been carried, 
 as the undersigned with some confidence presume?, so far as to assert that, in the unfor- 
 tunate 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 under- 
 sifned, on the contrary, thinks that he can rely on the distinguished support of the 
 Honorable 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 officially to 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 as decidedly so, that of tlie 
 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 de- 
 termination 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 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 mi^ht thus 
 expose themselves ; but they would certainly not allow any national intervention, how- 
 ever 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 Washing- 
 ton 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 Lave not erred in these inferences, there is little to be added rela- 
 tive 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, beingVis pub- 
 lic and notorious as it is alleged to have been by the Honorable 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 im- 
 pute 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 labored 
 as to so anomalous and so well known a state of things 1 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? Is it 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 con- 
 dition 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 obligation 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 a mere spirit of adven- 
 ture, they resolved to violate the regulations of the republic, to affiliate with the treason- 
 
6T 
 
 able disturbers of its peace and to plunder its patrimony, must they not also be held to 
 have taken upon themselves the responsibility and the consequences of their course ? It 
 would certainly be strange, were they absolved from these for the reason that one of them 
 bad 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 Honorable Mr. Clay so singularly in- 
 sists 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 exercises his functions, be- 
 cause, 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 re- 
 bellious port, not to countenance its rebellion, but, on the contrary, to protect the citi- 
 zens of its flag against revolutionary violence and guilt. The undersigned cannot under- 
 stand how the captains alluded to can claim the benefit of the good faith and ignorance 
 invoked in their behalf by the Honorable Minister of the United States in Lima, con- 
 fronted 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 per- 
 mits, 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 7'hompson 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 
 theiefore embracing the Chincha Islands. Again, the contract for the Georgian* 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 hud lent them- 
 selves 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 pro- 
 ject, wherever the most inviting and least dangerous opportunity might offer. 
 
 Insomuch as the possession, de facto, by the insurrectionists and their pretended 
 authorities, is concerned, it must be said that from the first outbreak of the revolution 
 organized by Vivanco up to the present hour, this leader has had under his command, 
 or in his favor, no portion of the territory of the republic, with the exception of the city 
 of Arequipa; for while the actual presence of his armed forces continued, and at the 
 time when the arrest of the vessels took place, Vivanco was besieged by the national 
 forces in Arequipa, and confined to that point, without more authoiity, of any real 
 character, than that which he exercised within its very narrow limits. It is true that 
 the sometime national frigate, the Apurimac, whose officers at the outset declared in 
 favor of Vivanco not having returned, with the other vessels that had also mutinied in 
 the commencement, to its allegiance to the government although its decree ha-1 imme- 
 diately declared her to be a pirate went cruising about the coast with the pretended 
 naval commander on board, bombarding the towns, depredating, stealing, and selling the 
 guano belonging to the nation, granting fraudulent permits for its excavation and ship- 
 ping, and protecting the vessels then loading in its robbery. This is the exact history 
 of the facts, and no one knows it better than the Hon. Mr. Clay; the hi-tory of the 
 ostensible authority, and of the de facto possession, on which His Excellency now relit a to 
 protect the captains in the premises. The only occupation of this piratical frigate, and 
 of its floating and itinerant authorities, which it conveys from point to point, is noto- 
 riously that of robbing, and of authorizing and protecting robbery. When they were in 
 Iquique, they there put forth their phantom of a government, and there exercised a 
 jurisdiction of pirates over Punta de Lobos, Pabellon de Pica, and other adjacent points. 
 And it is noteworthy that long before the events under examination, all communication 
 had ceased indeed, all relation between Vivanco, Iquique, Apurimac, (its officers, and 
 
68 
 
 the authorities, which it conveys about, or those that are countenanced by their pres- 
 ence, being the only shadow of a de facto government that existed in those parts.) More- 
 over, it is highly important to remark, that neither Vivanco nor his government has, 
 through any public decree, or act of any kind, pretended to repeal the decrees and regu- 
 lations adduced, all prohibiting the exportation to foreign parts of guano taken from the 
 hereinbefore mentioned deposits; so that, besides the fact that neither he nor his intrusive 
 authorities are recognized by the Peruvian nation, or by the Government of the Unien, 
 the pretended license signed by Rivas commands neither the authority nor the sanction 
 of the so-called revolutionary government, forasmuch as it may consider itself established 
 de facto. Indeed, it is strange that the Hon. Mr. Clay should maintain with so much 
 energy that there existed at Punta de Lobos and Pabellon de Pica, an established de facto 
 government lidding those points, when a national vessel of so little tonnage as the 
 Tumbes could, without resistance, take possession of the vessels that were found there, 
 and thus assert and maintain the jurisdiction of the lawful government; and if, as sup- 
 posed by the minister, the possession de facto be the only criterion of jurisdiction for 
 putting to effect the fiscal and custom-house laws, through means of a seizure, how, 
 then, could a possession thus affirmed and realized de facto through the capture, by the 
 Tumbes, of the vesstls in question, fail to be considered, in point of law, as a just and 
 lawful ground for the seizure that was made? Surely, it will not be maintained that 
 the fact ol holding the de jure jurisdiction lessened the effect of the possession de facto 
 of the Tumbes, nor yet that the presence of a few insurrectionary soldiers on shore, or 
 at the points mentioned, could deprive the lawful government of the right of exercising 
 in the port that lawful jurisdiction of which it was deprived on shore, merely through 
 the violence of an illegal power. When we speak of a de facto authority, we are hound 
 to show that it actually exists. Whenever, at any point, it lacks force to sustain itself, 
 from that moment its existence ceases there. 
 
 In view of what precedes, and of the powerful reasons adduced by His Excellency the 
 Minister of Foreign Affairs of Peru, in his correspondence on the subject with the Minis- 
 ter of the United States, the undersigned flatters himself that proof is made out of the 
 perfect right under which his government acted in the controverted cases, and of its 
 entire adherence to international laws, to the treaties of 1851 between the two nations, 
 and to the respect which is due to the dignity of the United States and the rights of 
 their citizens. 
 
 All that is now required is the refutation of the Honorable Mr. Clay's third proposi- 
 tion, in which, speaking of the right exercised by the Peruvian Government in the arrest 
 of the vessels and crews referred to, as a perfect right, His Excellency denounces its 
 mode of execution as illegal, cruel, if not barbarous. The language used by His Excel- 
 lency would be harsh, very harsh, even if they were justifiable. 
 
 His Excellency at the outset starts with a great error when he attempts to define the 
 arrest of the vessels and crews in question as a simple seizure under ordinary custom- 
 house laws. His Excellency forgets the state of insurrection and violence on which he 
 lays so much stress in the sequence of his arguments. He entirely puts out of view the 
 fact that participation with the rebels in taking guano from the deposits in question has 
 been formally declared to be robbery. In His Excellency's view a mere blank is the 
 guilty complicity of the parties with the pirate of the Apurimac, in plundering the 
 public treasury, and thus supplying rebellion with more effective means of shedding 
 blood and resisting the lawful authorities of the country. Engaged as they were in such 
 undertakings, they certainly had no right to expect either favor or consideration. To 
 rob the nation forcibly of its property, or under the protection of lawless violence, can- 
 not be less than a very serious crime in itself, because it is, at the same time, a violation 
 of the revenue laws. On the contrary, if there be any distinction at all, on that account, 
 ib lies in the circumstance that the greater crime absorbs the less, and imparts its own 
 character to the act. 
 
69 
 
 His Excellency likewise forgets that, as he himself has alleged, the points where the 
 arrests were made were garrisoned by some forces of the insurrectionists, and that the 
 piratical frigate Apurimac, with forces superior to those of the 2\imbes, was not far 
 distant, its principal occupation being that of visiting and protecting those points. Under 
 such circumstances there was neither time nor room for considerations and condescensions 
 in regard of persons engaged in criminal acts, the breaking-up of which was the object 
 of the visit made by the Tumbes. Nor was there time for delays; and if, in the manner 
 in which the vessels were taken and sent to Callao, there was something of haste or 
 violence, surely the blame must fall back on the wrong-doers who, by their conduct, 
 created a necessity for forceful measures. The undersigned omits comments on the 
 observations of the Minister of the United States on the injustice, illegality, and cruelty 
 which would have attended the destruction of the vessels and abandonment of their 
 crews, as it is said the commander of the Tumbes threatened his intention to do. The 
 vessels were not destroyed, and the fact is sufficient to preclude resort to possibilities. 
 If a portion of the crews was left at the points where they were found with the vessels, 
 the fact grew out of the sheer necessities of the case. The commander of the Tumbes 
 found five vessels of great burden. He could not leave their crews aboard, because, 
 together with the laborers that were collected with them, they might have proved too 
 numerous for the safety of the prizes. For the same reason he could not take them on 
 board the Tumbes. There was, therefore, no other resort than that of leaving them in 
 the smaller boats, all sufficient to take them whithersoever they might choose to go ; 
 and, as a proof of that sufficiency, four days afterwards, and in their boats, they reached 
 Arica, where they were assisted by the prefect with an allowance of fifty cents a day, 
 made to each individual, and whence they were forwarded to Callao, in which port, 
 receiving a like allowance, they remained waiting the result of the trial which had been 
 instituted. At the points where they were originally left, they had the resources common 
 to the insurrectionary forces there stationed sufficient, at all events, to repel the accu- 
 sation of cruelty, which has been brought forward against their abandonment. The 
 captains went to Callao, under parole, in their own vessels, and were sent to jail on their 
 arrival. All the usual forms of law were adhered to in their case, in conformity with 
 the enactments and usages of the land, with this favorable exception, however, that they 
 were released under bond, after three days' detention an act of courtesy and considera- 
 tion on the part of the government, at the request of the Minister of the United States, 
 without, therefore, renouncing the perfect right upon which it had stood from the begin- 
 ning, in all the proceedings relative to the case. The undersigned flatters himself that 
 this manifestation of the cordial good will which animates his government will not be 
 the less appreciated in view of the singular and, to this hour, unexplained conduct (diffi- 
 cult to be explained) of Mr. Miles, the United States Consul in Callao, who had the 
 boldness, as appears from a communication of the collector at Callao, to introduce him- 
 self, without previous permission, into the place where the captain and the mate of the 
 Georgiana were, officially to take their declarations; thus exercising a jurisdiction which, 
 he could not but be aware, belonged exclusively to the courts of the republic. The un- 
 dersigned will probably find himself under the obligation of formally bringing this 
 serious proceeding of the consul to the Hon. Mr. Cass' consideration. 
 
 Meanwhile, regretting the inevitable length of this note, he will no further delay its 
 conclusion. 
 
 The undersigned ardently desires to have it in his power, as soon as possible to com- 
 municate to his government the recognition, by the Cabinet of Washington, of the 'per- 
 fect right under which it acted in the questions in controversy, and he takes pleasure in 
 reiterating to the Honorable Secretary of State the assurance of the sincere wish of his 
 government to cultivate and draw still more closely the good relations of friendship 
 with the Government of the United States; and he hopes that nothing that has occurred 
 in. the cases to which he has referred, shall, from the exaggeration or the inaccuracy of 
 
70 
 
 the statement of facts, contribute to lessen, in the slightest degree, the sentiments of 
 friendly feeling on the part of this republic for that of Peru. 
 
 The undersigned has the honor of tendering to the Honorable Secretary of State the 
 assurance of his high respect and distinguished consideration. 
 
 JUAN I DE OSMA. 
 The very Honorable LEWIS CASS, 
 
 Secretary of State of the United States. 
 
 Mr. CASS to Mr. OSMA. 
 
 DEPARTMENT OF STATE, ) 
 WASHINGTON, May 22, 1858. \ 
 
 Sir, I have received your note of March 27th, and have submitted it to the 
 President for his consideration, and I am charged by him to make known to you 
 his views of the subject you have presented. 
 
 While the confidence you have been instructed by your government to express 
 in the moderation and equity of the Government of the United States has been 
 highly gratifying to the President, he regrets that it has been accompanied by an 
 expression of dissatisfaction with Mr. Clay, the Minister of the United States at 
 Lima, for the manner in which he discharged his duties under the unpleasant cir- 
 cumstances in which he was placed by the necessity of urging on the Govern- 
 ment of Peru just reparation for injuries committed against the persons and prop- 
 erty of his countrymen. If Mr. Clay has rendered himself justly obnoxious to a 
 charge of want of impartiality and of friendly disposition in his proceedings, he has 
 failed to represent the sentiments of his government, and has adopted a course 
 which it does not approve. The United States cherish the most friendly feelings 
 towards the Peruvian people and their government, and take much interest in the 
 advancement of tkeir beautiful country in all the elements of improvement. 
 
 I have carefully examined the correspondence between Mr. Clay and the Secre- 
 tary of State of Peru, and appreciate his position and the zeal and ability he dis- 
 played, without, however, adopting all his conclusions. His interposition became 
 necessary in vindication of the rights of his country, which, in his opinion, had been 
 violated, and in that opinion his government concurs with him. The evidence 
 which has been collected is in some particulars contradictory, but it shows very 
 clearly that serious violations of the rights of the United States had taken place, 
 and I do not perceive that the views taken by Mr. Clay can properly subject him to 
 the complaint of partiality or ill feeling. 
 
 I am confident he knew too well what was due to his own position and to the 
 sentiments of this government to offer any intentional offence to the friendly Gov- 
 ernment of Peru. I perceive, on reviewing the correspondence, that there are some 
 indications of excited feeling on both sides, and some expressions indulged that had 
 better been avoided. But I content myself with this reference, without a desire to 
 pass any further judgment upon it. 
 
 I beg leave also to assure you that any representations you may be instructed to 
 toake against Mr. Miles, the American Consul at Callao, will be received without 
 hesitation, and the facts investigated with a view to mark his conduct with the dis- 
 approbation of the government, should it be found that he has failed in proper 
 
respect to the Government of Peru, or discharged his duties in an improper 
 manner. 
 
 There are three subjects of complaint presented by Mr. Clay to the Government 
 of Peru. These are, the boarding and detention of the American vessel the Dorcas 
 C. Yeaton by the Peruvian armed steamer the Tumbes, and the capture of two other 
 American vessels, the Georgiana and Lizzie Thompson, by the same national 
 cruiser. 
 
 The course pursued by your government in offering an adequate compensation 
 for the interruption of the voyage of the Dorcas C, Yeaton, and its acceptance by 
 the captain in satisfaction of the injury, has withdrawn the question of damages on 
 account of that occurrence from the existing controversy ; but the boarding of the 
 Dorcas 0. Yeaton by the Peruvian vessel-of-war presents very grave considerations 
 for the interposition of this government. The American vessel was sailing upon 
 the high seas, under the flag of her country, when she was approached by the Peru- 
 vian vessel-of-war, which, to adopt the expression used by you, " made the usual 
 " signal for her to heave to," or, in other words, fired a gun to indicate to the un- 
 armed ship that she must stop and await the pleasure' of the armed one. 
 
 Before proceeding to examine the facts, it is necessary to lay down the principle 
 of immunity which protects the vessels of every independent power upon the 
 ocean from search or seizure by another power. In a recent correspondence with 
 Lord Napier, the Minister of her Britannic Majesty to the United States, I had 
 occasion to investigate this subject, and to make known the views of the United 
 States in relation to it, and their determination not to submit to the detention and 
 search of their vessels in time of peace under any pretext whatever. I take the 
 liberty of enclosing, for your information, a copy of the public documents contain- 
 ing that letter, and inviting your attention to the marked paragraphs, (pages 47, 
 48, and 49,) explanatory of the position assumed by this government, and which is 
 applicable to the vessels of the United States in every sea where they may pene- 
 trate. 
 
 You will perceive that the only exception to the entire immunity of their vessels 
 which is admitted by this government, is the acknowledged right of belligerents 
 to enter a neutral merchant vessel, in time of war, to ascertain her true character, 
 and whether she has contraband articles of war on board. 
 
 Whether the civil war which was recently prevailing in Peru, and is now hap- 
 pily terminated, gave to the contending parties, reciprocally, the rights of belliger- 
 ents, so far as regards the other powers of the world, which you deny, is a subject 
 into which I need not enter, as you explicitly state that the proceeding, in relation 
 to the Dorcas 0. Yeaton, had ho reference to any such pretension. 
 
 One remark, however, in relation to this branch of the subject, seems called for, 
 in consequence of the allusion you have twice made in your letter to the views 
 presented by Mr. Clay, concerning the situation of Peru at the time of the aggres- 
 sion complained of; views which you consider incorrect and inconsistent, and which 
 you are pleased to characterize as "remarkable." I cannot concur with you in 
 your censure of the position taken by Mr. Clay, but, on the contrary, consider it 
 entirely justified by the circumstances. You object that Mr. Clay u lays down 
 " the gravamen, as it were, of the offence attributed to Commander Duenas, in at- 
 " tempting to visit a vessel of the United States on the high seas, in a time of pro- 
 " found peace," &c., while at the same time that minister " by his own argument 
 " declares that Peru is in a state of civil war." I do not consider the views pre- 
 sented by Mr. Clay justly liable to the objections you urge. Peru, so far as re- 
 
72 
 
 spects the effect of its political condition upon its intercourse with other powers, 
 was in a state of peace. Neither of the parties contending for the government of 
 the republic claimed any of the rights of a belligerent, connected with that inter- 
 course, so that the foreign relations of the country were undisturbed by its internal 
 commotions. No blockade was proclaimed, nor were foreign vessels pronounced 
 to be neutrals, and subject to search and seizure for the reasons recognized by the 
 laws of nations conditions which bring with them the partial interruptions to 
 which foreign commerce in periods of public war is exposed. On the contrary, 
 you maintain in your letter to me that the state of things in Peru brought with it 
 no belligerent rights ; that, in fact, there was no civil war, but a rebellion merely 
 against the lawful government. I shall not undertake to settle any general prin- 
 ciple by which the true character of an insurrectionary movement in a country 
 may be tested, and under what circumstances it becomes a contest for a change of 
 the government, giving to it the attributes, together with the just consequences of 
 a civil war. It is sufficient to say that the situation of the contending parties in 
 Peru, and the avowed objects of the insurrectionary leaders, together with the ex- 
 tent of their operations, and also the extent and importance of the portion of the 
 republic which they occupied and governed at different periods of the struggle, 
 made that contest a civil war. And it was accompanied, so far as respects the in- 
 tercourse of other powers with Peru, with all the rights which belong to that con- 
 dition, and which either of the parties was disposed to claim and exercise in con- 
 formity with the recognized principles of the law of nations. 
 
 While informing me that you deem it unnecessary " to discuss or put forward 
 " the right of visitation," you remark that in a conversation you had with me, I 
 stated " there were cases in which a national vessel might be justified in visiting a 
 " merchant vessel on the high seas, and that the Government of the United States 
 " would not, in such cases, make a formal reclamation," and that I had put a case 
 illustrative of this position applicable to the circumstances of the Tumbes. 
 
 I regret that my views of this subject should have been misconceived upon the 
 occasion to which you refer. Whether the error is to be attributed to their being 
 imperfectly expressed, or imperfectly understood, I am unable to say ; but I am 
 sure you desire to ascribe to me precisely the opinion you supposed I entertained. 
 But by adverting to the extracts of the letter to Lord Napier, which accompany 
 this communication, you will perceive at once that I do not occupy the position 
 you assign to me. I claim a total immunity for the vessels of the United States 
 " upon the common and unappropriated parts of the ocean," to use the expression 
 of Lord Stowell, in time of peace, under all circumstances. There is no case in 
 which a forcible entrance into them can be justified by another power. That is, 
 there is no case in which such entry is a lawful act. It may be an excusable one 
 under peculiar circumstances of entrance and of conduct, which might well induce 
 the aggrieved party to renounce all claim for reparation ; as, for instance, if a 
 piratical vessel were known to be cruising in certain latitudes, and a national armed 
 ship should fall in with a vessel sailing in those regions, and answering the descrip- 
 tion given of the pirate, the visitation of a peaceable merchantman in such a case, 
 with a view to ascertain her true character, would give no reasonable cause of 
 offence to the nation to which she might belong, and whose flag she carried. 
 
 But if I understand correctly the position you take in behalf of your govern- 
 ment respecting the detention of the Dorcas C. Yeaton, it is unnecessary for me 
 to discuss the general question of the claim of visitation, except to express the 
 dissent of the United States from the principles in relation to it which you have 
 
73 
 
 laid down. That being done, I have to observe that the question of private injury 
 having been removed by the action of Peru, if the entrance into the American 
 vessel were a peaceable one, without violence or menace, the United States have 
 no demand to make of the government of your country, either in satisfaction of 
 the act or for the punishment of the officer by whose orders it was committed. 
 There is conflicting testimony as to the precise circumstances which occurred, but 
 there is no version of them which attributes any offensive character to the transac- 
 tion. Assuming, therefore, that such are the views of your government, and the 
 use of force on this occasion being denied and disavowed on its behalf, the United 
 States have no longer any cause of complaint against the Government of Peru for 
 this detention of one of their vessels. 
 
 But while I am gratified at being able to give you this assurance, I think it 
 proper to remark, that the circumstances of this occurrence, independent of the 
 statement of the persons present, may well have led Mr. Clay to believe that the 
 entrance into the American vessel was not altogether a peaceable one. 
 
 The Peruvian armed steamer was sailing upon the high seas with the purpose, as 
 you avow, of preventing the vessels of other powers from resorting to the guano 
 deposits. It is not denied that Peru has the right to exercise due vigilance in 
 enforcing her revenue laws within a reasonable distance of her shores, but this 
 should be done by a preventive service, stationed in the neighborhood of the place 
 where a contraband trade is anticipated, and not by vessels traversing the high 
 seas, exercising an arbitrary jurisdiction over the commerce of other powers, and 
 exposing it to vexatious interruptions and injuries. And the measure of keeping 
 an armed steamer upon the ocean for this purpose is liable to another objection, not 
 less decisive as to its condemnation. The Tumbes belonged to the government, 
 against which the revolutionary party was contending, and was acting under its 
 orders. Those orders were to intercept by force all communications with various 
 places in the possession and under the jurisdiction of the adverse party. The 
 United States deny the right of interference in such cases, for reasons which will 
 be more fully developed in the observations I shall present respecting the capture 
 of two other American vessels, the Lizzie Thompson and the Georgiana. The orders 
 and destination of tbe steamer necessarily led to the opinion that force was to be 
 used in the accomplishment of the object of her cruise, and thus the statements 
 made to the American consul upon this point were the more readily credited, 
 and especially when taken in connection with the arrangement, just and proper, 
 indeed, which was made for the satisfaction of the owners. The large sum of 
 $9,600 voluntarily offered by the commander of the Tumbes for the short deten- 
 tion of a few hours of the American vessel, not unnaturally, however unjustly, may 
 have induced the opinion that the Peruvian officer felt that he had committed 
 a grave error, which might have serious consequences, unless atoned for by a 
 mutually satisfactory arrangement. Had no force been used or threatened, there 
 was no error to correct. Nor is this consideration weakened by one of the reasons 
 given by you for the liberal offer of the Peruvian officer, that a prosecution of a 
 voyage to the guano deposits might involve the owners of the vessel in fatal con- 
 sequences. A motive of action in the disposal of public funds to foreigners, to 
 prevent them from engaging in what was considered an illegal traffic, scarcely 
 reconcileable with the condition of the parties. 
 
 The capture of the Lizzie Thompson and of the Georgiana, two American vessels, 
 furnishes another subject of complaint, and the United States confidently appeal to 
 the justice of the Government of Peru for such satisfaction as this violent and un- 
 10 
 
Y4: 
 
 just seizure demands, and as is due to the amicable relations subsisting between the 
 two countries. The facts lie within a narrow compass, and in their main features 
 are indisputable. These vessels, whose capture and the harsh treatment of whose 
 crews form the subject of this reclamation, were owned by American citizens, and 
 left the United States with regular clearances; one, the Georgian^ for Valparaiso, in 
 Chile, and the other, the Lizzie Tho?npson, for Iquique, in Peru. Arrived at their 
 ports of destination, they disposed of their respective cargoes, barley and lumber ; 
 but the Georgiana was required by the consignees to deliver her freight at Iquique, 
 or at another place in Peru called Mala. When they reached Iquique the captains 
 found a civil war raging in the country, where, indeed, it had existed for almost 
 two years, one of the contending parties seeking to retain possession of the gov- 
 ernment, and the other to obtain it by force. This movement had been going on 
 with varied success, and during its progress, as stated by Mr. Clay, and not dis- 
 puted, the insurrectionary party got possession of some of the important ports of 
 Peru, and, while holding them, they exercised all the functions of government, as 
 well those relating to external as to internal concerns. Vessels were cleared, and 
 all the necessary acts performed which were required by the operations of commer- 
 cial intercourse. These ports extended almost from the southern to the northern 
 boundary of the country. Among others thus occupied by the insurrectionists 
 were the port of Iquique, and also two small places, Punta de Lobos and Pabellon 
 de Pica, in its vicinity, all of which were in their possession when the two Ameri- 
 can vessels arrived at Iquique and sought employment. The Custom-House was 
 open, and the officers appertaining to it in the regular discharge of their duties, and 
 the necessary papers for the entrance and clearance of vessels were readily granted. 
 The revolutionary party had full possession of the government at the points indi- 
 cated. The true bearing of this fact is not weakened, as you suppose, by calling 
 the military detachments maintaining possession at the two small points " a few 
 insurrectionary soldiers," because if they were sufficiently numerous, as they un- 
 doubtedly were, to effect the object, the number actually engaged in the service 
 becomes a question of no importance, and in a subsequent part of your note you 
 admit that these places " were garrisoned by some forces of the insurrectionists," 
 &c. 
 
 Under these circumstances, the usual commercial relations between Peru and the 
 United States were continued, and the vessels of the former resorted to the ports of 
 the latter, carrying freight and seeking employment, as before. In doing so, and 
 while conforming to the regulations and -submitting to the authorities they found 
 established there, are they liable to seizure and condemnation and their crews to 
 punishment by the adverse party ? The United States maintain they are not, and 
 that no such principle has been recognized during the civil wars which have been so 
 prevalent in various countries. On the contrary, commerce has been often carried 
 on without regard to these internal contests, and the established functionaries at 
 the various ports of entrance have exercised all necessary authority. The preten- 
 tion advanced by your government, which would render all these proceedings liable 
 to be declared void, cannot be successfully maintained. If recognized, it would 
 expose foreign commerce to the most oppressive exactions and interruptions. It 
 would enable either party, acquiring possession of a place, to disregard all the offi- 
 cial acts which had been done by its opponents while occupying it, and enforce the 
 repayment of all public charges, though previously fully satisfied, together with the 
 forfeiture of vessels and the punishment of their crews. 
 
 You claim for the government at Lima, during the existence of the contest. 
 
authority over the whole country, and the duty of obedience from every person re- 
 siding in it, whether citizen or stranger. A similar claim is very often put forward 
 in cases of civil commotion, and is not seldom urged at the same time by both par- 
 ties. It cannot be admitted where a civil war is raging, and that, in the opinion of 
 this government, was the condition of Peru. A condition which conferred upon de 
 facto rulers the right to govern such portions of the country as they were able to 
 reduce to their possession. It is the duty of foreigners to avoid all interference 
 under such circumstances, and to submit to the power which exercises jurisdiction 
 over the places where they resort, and while thus acting they have a right to claim 
 protection, and also to be exempted from all vexatious interruption when the as- 
 cendancy of the parties is temporarily changed by the events of the contest. 
 Undoubtedly, the considerations you urge respecting the true character of an armed 
 opposition to a government are entitled to much weight. There may be local in- 
 surrections, armed opposition to the laws, which carry with them none of the just 
 consequences recognized by the law of nations, as growing out of a state of civil 
 war. No fixed principle can be established upon this subject, because much de- 
 pends upon existing circumstances. Cases, as they arise, must be determined by 
 the facts which they present and the avowed objects of the parties, their relative 
 strength, the progress they respectively make, and the extent of the movement, as 
 well as other circumstances must be taken into view. While you do not deny that 
 there may be civil wars, carrying with them the consequences to which I have re- 
 ferred, you consider the contest in Peru comparatively an unimportant movement 
 an insurrection, indeed, entitled to no such distinction. I do not concur in this 
 view, nor does it appear to have been always concurred in by the government you 
 represent. Mr. Clay appeals to some of the proceedings of the government at 
 Lima in proof of its recognition of the character of the contest. And certainly the 
 negotiation with the military and naval officers at Arica, belonging to the revolu- 
 tionary party, by the direction of that government, and for their submission to its 
 authority, indicates very clearly the opinions of both parties, asserted, indeed, in 
 the official documents, that a civil war was prevailing in the country. The propo- 
 sitions made by the chiefs of the revolutionary party upon that occasion maintained 
 that of u their own free and spontaneous will " they have manifested to the govern- 
 ment commissioners " their desire to put an end to the civil w T ar which afflicts the 
 " republic, which they might prolong with the elements they possess," and offer 
 the terms upon which they will submit. These terms were unconditionally ac- 
 cepted by the commissioners and were approved and ratified by the Council of 
 Ministers, and thus was the state of civil war fully recognized. 
 
 Besides your estimate of the partial nature of the movement, which, in your 
 opinion, divests it of the true character of a civil war, if I understand your position, 
 you consider some act of a foreign government recognizing the existence of such 
 a war to be necessary before its citizens can claim the protection which the United 
 States demand for their own. 
 
 I must express my dissent from this position, at least in its application to these 
 two American vessels, I do not propose, however, to investigate the general pro- 
 position as to the necessity of this external political interference, because such a 
 discussion is not demanded for any purpose 1 have in view. Cases have been put, 
 and may be put again, which, in the opinion of high authorities, require such a 
 measure before they carry with them the consequences attached to the condition of 
 civil war. Such cases may relate to the declaration of a blockade, to a claim to 
 search vessels as neutrals, and to the exercise of other belligerent powers assumed 
 
by the hostile rulers. By what public act, whether proclamation or otherwise, this 
 recognition must take place I have not found laid down. I am not aware that, in 
 this country, any solemn proceeding, either legislative or executive, has been 
 adopted for the purpose of declaring the status of an insurrectionary movement 
 abroad, and whether it is entitled to the attributes of a civil war, unless, indeed, in 
 the formal recognition of a portion of an empire seeking to establish its indepen- 
 dence, which, in fact, does not so much admit its existence as it announces its 
 result, at least, so far as regards the nation thus proclaiming its decision. But 
 that is the case of the admission of a new member into the family of nations. 
 Such is not the condition of Peru. She had already attained that position, and her 
 intestine difficulties arose out of an effort to change the administration of the gov- 
 ernment, which was a matter of purely domestic concern, not touching foreign 
 powers, unless in the progress of the contest their interests were brought into ques- 
 tion. So long, therefore, as such a contest preserves its 'domestic character there is 
 no necessity for external interposition, unless, indeed, there be a determination to 
 take part with, and aid one of the parties by the direct application of force, or by 
 the exertion of political influence. Such has not been the policy of the United 
 States, and they carefully abstained from all interference with the troubles in Peru, 
 content to abide the decision which its people might make ; and this government 
 permitted the diplomatic intercourse of the two countries to continue unchanged, 
 as a measure demanded by their mutual interests and not as an acknowledgment 
 of the pretensions of either of the rival parties. It is therefore unnecessary to 
 advert to the effect of a formal recognition by the executive, and how far that act 
 of political power would be obligatory upon the courts of justice and binding upon 
 the rights of individuals. Whether a civil war was prevailing in Peru is a question 
 of fact to be judged by the proofs, as the existence of a war between two inde- 
 pendent nations is a similar question, to be determined in the same manner where 
 as is often the case, at least in this country there is no public authoritative recog- 
 nition of it. Foreigners in Peru were subject to the local jurisdiction and bound 
 to submit to it, and while so submitting they were entitled to protection and not 
 justly liable to be called in question for such obedience upon any change of au- 
 thority consequent upon the progress of military events. 
 
 You will perceive by this view that the importance you attach to the fact that 
 the American captains could not be ignorant of the true state of things in Peru, a 
 fact in which you find a justification for the proceedings that took place affecting 
 them, becomes a subject of no importance whatever. Ignorant or informed of the 
 situation of Peru, their rights and duties were precisely the same. They had a 
 right to enter any port of the republic open to foreign commerce, and not blockaded, 
 for the prosecution of their commercial enterprises ; and it was their duty after 
 such entrance to obey the authorities they might find established there. And the 
 same principle which is applicable to the jurisdiction of a de facto government 
 over persons, applies with equal force to questions of internal administration, 
 touching the public revenue. These are subjects which follow the possession of 
 the powers of government. The views, therefore, which you present at some 
 length, of the laws of Peru, providing for the regulation of the trade in guano, and 
 prescribing penalties for their violation, have no practical connection with the case 
 of these two American vessels. The true construction of these regulations, their 
 repeal or suspension, of modification, or application, are questions of administration 
 to be determined by the existing administrative power, to whose decision foreign- 
 ers must submit, ' When the revenue officers at Iquique, acting under the authority 
 
of the de facto government, gave the necessary permission for the purchase of 
 guano at the places indicated, then subject to the authority of that government, 
 the American captains had the right to repair thither and to take that article on 
 board their vessels for freight, in conformity with the provisions of their charter 
 parties. And the transfer of the possession of these places while the vessels were 
 engaged in this employment, could justly work no forfeiture for acts previously 
 done under these circumstances, nor subject the officers or crew to punishment. 
 The United States recognize no pretension for such interference, but hold on to the 
 stipulations of their treaty with Peru, which guarantees protection to their citizens 
 without regard to whatever changes, violent or peaceable, may take place in the 
 government of that country. 
 
 Connected with this branch of the subject, you inquire how it happens " if pos- 
 " session de facto be the criterion of jurisdiction for the enforcement of fiscal or 
 " Custom-House laws, (for all authority you might have added,) that the possession 
 " affirmed and realized de facto through the capture by the Tumbes of the vessels 
 " in question failed to be considered in point of law as a just and lawful ground for 
 " the seizure that was made ?" 
 
 This question admits of a satisfactory answer and a brief one. While contending 
 parties are carrying on a civil war, those portions of the country in the possession 
 of either of them become subject to its jurisdiction, and persons residing there owe 
 tO it temporary obedience. But when such possession is changed by the events of 
 the war, and the other party expel its opponents, the occupation it acquires carries 
 with it legitimate authority, and the right to assume and exercise the functions of 
 the government. But it carries with it no right, so far at any rate as foreigners 
 are concerned, to give a retroactive effect to its measures, and expose them to 
 penalties and punishments, and their property to forfeiture for acts which were 
 lawful and approved by the existing government when done. If the Government 
 at Lima had taken forcible possession of the places where the two American vessels 
 were at anchor, and had established its authority, it would then have been entitled 
 to demand that such authority should be recognized and obeyed, and to enforce it, 
 if necessary, so far as might regard all transactions occurring during such occupa- 
 tion, without, however, affecting existing rights. The principle is clear, but it does 
 not appear that the circumstances called for its application. JSTo possession of any 
 portion of the country in question seems to have been taken by the Tumbes. It is 
 admitted, indeed, that that vessel exercised no jurisdiction "on shore." She 
 sailed into the small ports il garrisoned" by the other party, and in the absence of 
 its two armed vessels, and made " capture" and " seizure" of the American vessels, 
 and then, for aught that appears, abandoned the position and left the adverse 
 jurisdiction as she found it. This is no rightful proceeding under any circum- 
 stances attending a civil war, and still less under the circumstances in which it took 
 place. 
 
 The cutting out of these vessels resembles a piratical enterprise rather than the 
 exertion of a legitimate power against the property of a friendly nation under the 
 authority of an established government. 
 
 Upon a full consideration of the subject, the President indulges the confident 
 expectation that the Government of Peru, on reviewing the circumstances, will not 
 hesitate to make such compensation for the capture of the Georgiana and of the 
 Lizzie Thompson, and for the injuries to the captains and the crews, as these violent 
 transactions call for. 
 
78 
 
 There is another incident connected with these occurrences to which I invite 
 your attention. 
 
 Mr. Clay has complained of the conduct of the commander of the Tumbes for a 
 want of humanity, in his treatment of the crews of the two captured American 
 vessels. This charge you regard as unfounded, and the course pursued upon that 
 occasion as just and humane. I have no disposition to continue the discussion of 
 this point of a controversy already sufficiently extended, but the indefensible na- 
 ture of the transaction, not less than justice to Mr. Clay, requires that I should 
 make known to you the disapprobation of this government of an act of cruelty 
 towards a number of its unprotected citizens, committed by the Peruvian officer, 
 without any excuse under the circumstances. The crews of the vessels were in a 
 state of utter destitution, reduced to that condition by forcible expulsion from their 
 own vessels, and were compelled to leave in open boats, badly equipped for the 
 purpose, and without provisions or water, and some forty or fifty miles, as Mr. 
 Clay states, from any place where these indispensable articles could be procured. 
 I am sure the enlightened Government of Peru would condemn the conduct of the 
 captain of the Tumbes were all the facts of the case correctly before it. In a de- 
 clared war, persons thus captured in the prosecution of hostilities would rarely be 
 subjected to such treatment, and never without the serious responsibility of the 
 government permitting or justifying the measure. But these unfortunate men were 
 the citizens of a friendly republic, engaged in peaceable commerce, and had done 
 no act justly exposing them to capture or to punishment. The United States have 
 a right to expect the Government of Peru will mark with its displeasure the con- 
 duct of its officer upon that occasion. 
 
 I have requested from the Attorney-General his opinion upon some of the ques- 
 tions involved in the discussion between our respective governments, and I enclose 
 for your information, a copy of the communication I have received from that officer 
 in answer to my application. His views meet the concurrence of the President. 
 
 I avail myself of this occasion, sir, to offer to you a renewed assurance of my 
 very distinguished consideration. 
 
 LEWIS CASS. 
 
 MR. BLACK to MR. CASS. 
 
 ATTORNEY-GENERAL'S OFFICE, \ 
 May 15th, 1858. \ 
 
 Sir, The questions you have submitted relative to the seizure of the American 
 vessels Georgiana and Lizzie Thompson by the Peruvian war-steamer Tumbes, on 
 the coast of that country, have had my consideration. 
 
 The two American vessels were engaged in lawful trade without any intention 
 on the part of masters, owners, or other persons, to do injury to the Peruvian Gov- 
 ernment, or to violate any law which they might find to be in force for the regula- 
 tion of commerce in that part of the world. They both went into the port of 
 Iquique, and there, after discharging the cargoes with which they were laden, they 
 procured a regular clearance and license at the Custoin-House to load with guano 
 at certain points on the coast where that article is found. While they were en- 
 gaged in taking in their cargoes of guano, agreeably to the license so obtained, they 
 were forcibly seized by the Peruvian steamer, the persons on board were impris- 
 
oned, and the vessels carried into Callao, under a charge of being engaged in con- 
 traband trade. 
 
 Neither the commander of the Turribes nor the government which he served has 
 attempted to vindicate the justice or legality of these proceedings on the ground 
 that the clearance and license under which the Americans acted were unlawful in 
 form or substance. It is not pretended that the authority given on the face of the 
 license was insufficient to cover the acts of the persons who had it. The whole 
 objection to the papers is founded on the fact that the acting governor of Iquique 
 and the collector, who was in possession of the Custom-House, held their offices, 
 not under the authority of the Supreme Government of Peru, but by appointment 
 from Vivanco, a revolutionary chief, who had taken arms against it. But at the 
 date of the license, this so-called revolutionary party had full possession of this 
 port of Iquique, of the guano deposits, and of the whole country southward to the 
 Bolivian line. When the Americans went there they found a government organized, 
 and its officers performing the functions which pertained to the execution of the 
 local laws. If there was any other power in existence strong enough to dictate 
 the law at Iquique, it Avas not exercised, nor did the foreigners at Iquique receive 
 even a notice that it would ever be exercised in the future. Under these circum- 
 stances, could the Peruvian Government justly or lawfully treat the American 
 vessels as violators of their law ? 
 
 When a portion of the territory of one nation is taken possession of by the forces of 
 another with which it is at war, the conquering party has an undoubted right to declare 
 the law of the place as long as his occupation of it continues, and all the rights of the 
 previous sovereign are suspended until his possession is resumed. The island of Santa 
 Cruz, then recently captured by the British forces, was in their temporary occupation 
 during our last war with that country. We held it to be a colony of our enemy, and for 
 that reason our courts declared that a cargo of sugar shipped from there was the lawful 
 prize of an American privateer who had captured it. (9 Crancb, 191.) We conceded the 
 same rule when it operated against us. The port of Castine was taken by the British in 
 1814, and it was decided that our revenue laws did not apply to it any more than to a 
 foreign country. (4 Wheat., 246 ; Gullison's Rep., 501.) Indeed, nothing can be clearer 
 than that the conquest of a country, or portion of a country, by a public enemy, entitles 
 such enemy to the sovereignty and gives him civil dominion as long as he retains his 
 military possession. The inhabitants who remain and submit, and strangers who go 
 there during the occupation of the enemy, must take the law from him as the ruler de 
 facto, and not from the government de jure, which has been expelled. It is equally well 
 settled that, when the former government resumes its possession of the territory, 
 whether by force or under a treaty, it cannot call the citizens or subjects of a third na- 
 tion to account for obeying the authority which was temporarily supreme, during the 
 enemy's occupation of the place. The JIM post liminii has no sort of application to such 
 a case. 
 
 It may be supposed that these principles refer only to a lawful war carried on be- 
 tween two separate and independent nations. But we shall see, I think, upon further 
 examination, that they apply with equal force to a conflict like that in which Peru has 
 been engaged. 
 
 When the people of a republic are divided into two hostile parties, who take up arms 
 and oppose one another by military force, this is civil war. The fact that civil war ex- 
 ists does not depend in the least on the cause of the dispute. No foreign nation has a 
 right to interfere between the parties, nor to judge the merits of the quarrel, unless with 
 the purpose of making war upon one or the other. They have appealed to the sword, 
 and the sword must decide it; other powers are bound to observe a strict and impartial 
 neutrality. If the party which opposes the previously established government shall 
 
80 
 
 succeed in overthrowing it entirely, and gets possession of the whole country, nobody 
 can be perverse enough to deny that in such a case the new government is sovereign and 
 authorized to dictate the law which shall prevail. Supposing, however, that the rebellion 
 is but partially successful, and the old government maintains itself in one part of its ter- 
 ritory, whilst it is obliged to surrender another, shall it then give law where it has no 
 power to enforce obedience, or shall its authority be confined to the territory which it oc- 
 cupies ? The answer to this question is not doubtful; a revolutionary party, like a 
 foreign belligerent power, is supreme over the country it conquers, as far and as long as 
 its arms can carry and maintain it. 
 
 Wattel (Book iii. ch. 18, sec. 295) says, what all writers on the subject assent to, that 
 the parties to a civil war are to be regarded, for the time, as two distinct political 
 societies, and stand in the same predicament as two belligerent nations. They are enti- 
 tled, one as much as the other, to the respect of foreigners who deal with them, or meet 
 them on sea or land. They can each of them claim the same rights of asylum, hospi- 
 tality, and intercourse with other nations. (3 Wheaton, 643.) The captures made by 
 both give titles to the prizes which their respective ships lawfully commissioned may 
 take. (7 Wheaton, 337.) Each of them is deemed by us to be a belligerent nation, 
 having, so far as concerns us, the sovereign rights of war, and entitled to be respected in 
 the exercise of those rights. (Ib ) T \ hese rules of public law are recognized and enforced 
 by our neutrality laws and those of England. It is a crime for our citizens to take part 
 on either side of a civil war, as much as it is to aid one nation in fighting another. All 
 the nations of the earth have acknowledged this doctrine. It was never denied during 
 our revolutionary war with Great Britain, nor during the civil contest between Spain 
 and her American colonies. The Peruvian Government itself sprang from a revolution, 
 and while that revolution was in progress its chiefs and people would not have listened 
 for a moment to any proposition which would give their military operations less validity 
 or respect than those of other nations, however legitimately constituted. 
 
 The existence of civil war in Peru is admitted by the present government of that 
 country. The fact is known to the whole world, and cannot be denied. The American 
 vessels did nothing to compromise their own neutrality, or that of the flag under which 
 they sailed. Keeping themselves within the limits of a trade lawful and fair in its 
 character, they had a right to be protected when they obeyed the regulations which they 
 found established and in force at the place. To give them this right, it was not necessary 
 that the government of their own country should have previously known and recog- 
 nized the existence of the civil war. I am not required, for any purpose of this case, to 
 say how far a revolutionary party can carry on a war upon the ocean, and vex the com- 
 merce of the world upon its common highway. It has been doubted whether a mere 
 body of rebellious men can thrust itself among the family of nations, and claim all the 
 rights of a separate power on the high seas, without some sort of recognition from 
 foreign governments. But there is no authority even for a doubt about the right of the 
 parties to a civil war to conduct it with all the incidents of lawful war, within the terri- 
 tory to which they both belong. 
 
 On the whole case, then, my opinion is, that the following propositions cannot be con- 
 troverted with any show of reason or authority : 
 
 1. At the time when the Georgian and Lizzie Thompson went to Iquique, a state of 
 civil war existed in Peru. 
 
 2. At that time, one of the parties to that civil war having expelled the other, had 
 possession by conquest of the port of Iquique, and the points where the guano was 
 deposited. 
 
 3. Being so in possession, and having officered and organized the local government of 
 the port, and the city, and the guano deposits, the jurisdiction of the party headed by 
 Vivanco was perfect, and an American vessel trading to the port was bound to conform 
 to its decrees. 
 
81 
 
 4. The Gtorgiana and Lizzie TJiompson, having obeyed the laws of the place then 
 established, and having acted in pursuance of licenses given by the officers in authority, 
 were guilty of nothing for which the other party to the civil war could punish or molest 
 
 them afterwards. 
 
 5. The laws and jurisdiction of the Peruvian Government were suspended at Iquique 
 during the time that place was in possession of its domestic enemy, and its resumption 
 of possession gave it no power to punish American citizens for a supposed violation of 
 its laws while they were suspended; nor to make any new law which would have a 
 retroactive effect. 
 
 6. The whole proceeding of the Peruvian Government against the two vessels named 
 was contrary to the law of nations, and repugnant to the principles of natural justice. 
 
 I am, very respectfully, yours, Ac., 
 
 J. S. BLACK. 
 Hon. LEWIS CASS, 
 
 Secretary of State. 
 
 (Translated from the Spanish.) 
 
 LEGATION OF THE UNITED STATES, ) 
 LIMA, 6th July, 1858. ) 
 
 The Exmo Council of Ministers in charge of the executive power of Peru, having 
 appealed to the Unite 1 d States of America, through tlie Minister Resident of the republic 
 at Washington, against the protest and the claim for indemnity, which the undersigned 
 made in his note addressed to H. E. the Minister of Foreign Affairs, under date of the 
 9th of February last, in favor of the owners, captains, and crews of the American ves- 
 sels Lizzie Thompson and Georgian a, seized by the war steamer 'lumbes while loading at 
 Pabellon de Pica and Punta de Lobos on the 24th of January of this year; the founda- 
 tion for said protest and demand for indemnity, being that said vessels were, at the time 
 of their seizure, engaged in a legal commerce, and consequently were not subject to 
 capture and condemnation, or their captains and crews to punishment; and the Govern- 
 ment of the United States having fully sustained said protest and "demand for indem.- 
 nity," the undersigned, Envoy Extraordinary and Minister Plenipotentiary of the United 
 States of America, has the honor to transmit herewith to H. E. the Minister of Foreign 
 Affairs of the Republic of Peru, the original letters addressed to the undersigned on the 
 second instant, by Horatio Alden Wilson, master of the ship Lizzie Thompson, and 
 Stephen Reynolds, master of the bark Georgiana, accompanied by a statement which 
 sets forth the amount claimed by them as indemnity for the losses and damages suffered 
 by the masters, owners, officers, and crews of said vessels, in c nsequence of their seizure 
 by the Tumbes ; also the inventories of the Lizzie Thompson and the Georgiana, with 
 other documents in support of said demands. 
 
 H. E. the Minister of Foreign Affairs will observe by the enclosed documents that Cap 
 tain Wilson claims in his name, and for the other parties interested in the Lizzie Thomp 
 son, the sum of $109,863 82, and Captain Reynolds in his own name and for the other 
 parties likewise interested in the Qeorgiana, the sum of $46,850 83. 
 
 Demands which the undersigned has the honor to submit to the Government of Peru 
 begging H. E. the Minister of Foreign Affairs to take the necessary measures for their 
 early conclusion. 
 
 The undersigned avails himself of this occasion to renew to H. E. the assurance of 
 his highest consideration. 
 
 (Signed) J. RANDOLPH CLAY. 
 
 To H. E. DR. MANUEL ORTIZ DE ZEVALLOS, 
 
 Minister of Foreign Affairs, etc., &c. 
 11 
 
DEPARTMENT OF FOREIGN AFFAIRS, ) 
 LIMA, July llth, 1858. j" 
 
 I have had the honor to receive the dispatch of your Excellency of the 6th instant, 
 with the documents therein referred to, in which your Excellency makes a demand for 
 indemnity for the capture of the American vessels Lizzie Thompson and Georyiana, in 
 view of the fact that the Government of the United States have fully sustained the pro- 
 test which, in regard to the same matter, your Excellency \vas pleased to direct to this 
 Department on the 9th of February last. 
 
 By the tenor of the response which the Hon. Secretary of State made on the 26th of 
 May last to the note which the Minister Resident of this republic, Don Juan Ignacio de 
 Osma, addressed to him on the 27th of the previous March, an authentic copy of which 
 has been transmitted to me, it simply appears; that His Excellency, alluding to the 
 opinion given by the Attorney General, after expressing the view which the enlightened 
 Cabinet of Washington had taken in regard to the legal question, H. E. concludes with 
 an expression of the hope entertained by the President of the Union that the Govern- 
 ment of Peru, reconsidering the circumstances, would not hesitate to authorize adequate 
 compensation for the capture of the aforesaid vessels. But as there were well founded 
 reasons to give a satisfactory reply to so important a communication, Mr. Osma, in due 
 season, gave it in proper form, having, moreover, received ulterior instructions from my 
 government to conclude the pending negotiation. 
 
 In this view the Council of Ministers, in charge of the executive power, have directed 
 me to state to your Excellency, that they cannot take into consideration the demand 
 which your Excellency has deemed it convenient to institute; both because in the present 
 state of the question, it is evidently premature, and because said question being under 
 discussion, by agreement, directly with the Government of the Union, it would become 
 distorted, inconvenient, and complicated if discussed at the same time with your Excel- 
 lency in this capital. 
 
 I avail myself of this occasion to renew to your Excellency the assurance of the par- 
 ticular regard and distinguished consideration, with which 
 
 I remain your Excellency's obedient servant, 
 
 MANUEL ORTIZ DE ZEVALLOS, 
 To H. E. the Envoy Extraordinary and Minister Plenipotentiary of the U. S, 
 
 Record of the sentence pronounced in the first instance against Captain Stephen Rey. 
 nolds of the Georgiana, in the trial for seizure now in course, 
 
 CALLAO, May 6th, 1858. 
 
 It appears, 1st. That, under date of the 28th of December of last year, the North 
 American vessel Georgiana was dispatched from Iquique for foreign parts, according 
 to the document at page 10 : 2d. That, six days before, that is, on the 22d of the same 
 month, the Captain Stephen Reynolds made and concluded a charter-party with Don 
 Jose Santos Osa, for himself and in the name of Lequeleque & Bordes of Valparaiso to 
 load in his vessel all the guano which she could take from the national deposits at the 
 south of Iquique, and transport the same to the port of Cork, in Ireland, in virtue of the 
 stipulations of said contract, and the license or permission given by Don Felipe Riva?, 
 arrogating to himself the title of General and Commander-in-Chief of the Navy, as appears 
 by the original documents on pages 11 and 13 : 3d. That in consequence thereof, and in 
 conformity with the orders of the charterer, said captain sailed for the Punta de Lobo?, 
 where after having anchored, he commenced loading his vessel with the guano which 
 was then ready, and the number of tons of which amounted to 130, more or less, as he 
 states in his declaration at page 17. And in view of the fact that by articles 15 and 17 
 
S3 
 
 of the Supreme Decree of March 21st 1852, arts. 1st, 3d, and 4th, of the 10th of May 
 of the same year, article 1st of the 5th of January 1857, the law of March 31st of the 
 same year, and article 213 of the Regulation of Commerce, all national or foreign vessels 
 are ab-olutely prohibited from entering or anchoring in ports not open, much less in 
 those in which there might be guano, and with the intent to export it. And that by the 
 aforesaid Supreme Decrees it is only permitted that guano should be embarked for 
 foreign parts, at the Chincha Islands, and this exclusively by the consignees of the State, 
 with the legal requisites and license of the Supreme National Government, the only 
 authority which can grant it. And finally, that said captain could not plead ignorance, 
 when anchoring at Iquique, of what he was or was not permitted to do, in observance of 
 the fiscal laws of the Republic, and that it is clearly proved that the Captain of the North 
 American vessel Georgiana not only entered and anchored in Punta de Lobos, but that 
 he also loaded guano, the property of the State, infringing all the fiscal laws of the Re- 
 public, by which it is prohibited, and thereby making himself liable to the penalties set 
 forth in them. On these grounds, and in conformity with the petition of the Contadaria 
 (Comptroller), we decree, in judgment of first instance, that we should, and do condemn 
 to the penalty of confiscation, in conformity with the laws and Supreme Decrees already 
 cited, the aforesaid North American vessel Georgiana, with all her appurtenances, apply- 
 ing her value to the Commander of the National war-steamer Tumbes, Don Ignacio 
 Dueflas, and other captors, in the mode and form prescribed in article 298 of the Regu- 
 lation of Commerce ; excepting the guano now on board, as it belongs to the State. Let 
 
 it be known. 
 
 PEDRO SALMON. 
 
 Senor Don Pedro Salmon, Collector of this Custom-House, and Judge of Confiscations 
 of this Province, while holding open Court, gave and pronounced the aforesaid sentence, 
 on the day of its date, which I hereby certify. 
 
 PEDRO CUBILLAS. 
 
 The foregoing conforms with the original sentence, to which I refer in case of ne- 
 cessity, and in virtue of my orders. 
 
 I give the present in Callao, May 21st, 1858. 
 
 PKDRO DE CUBILLAS. 
 
 Record of the sentence pronounced in the first instance ngainst Captain H. A. Wilson 
 of the Lizzie Thompson, in the trial for seizure now in course. 
 
 CALLAO, May 6lh, 1858. 
 
 It appears, first: that Don H. A. Wilson, Captain of the American ship Lizzie Thomp- 
 son, celebrated a charter-party with Don FedericoFreraut, to load in his vessel all the 
 guano which she could hold, and 'transport it to the port of Cork, in Ireland ; as appears 
 by the original document, ou page 1. 
 
 2<1. That with that object she sailed from the port of Iquique, destined for Pabellon de 
 Pica, where she was captured by the war-steamer Tumbes, having already embark* d more 
 than 200 tons of guano, part of that which she was bound to receive on board by virtue of 
 the stipulations in said contract, and the permit or license issued by Don Fel.pe R vas, ar- 
 ro^ating to himself the title of General and Comrnander-in-Chief of the Navy, as is proved 
 on pao-es , and declaration of pages . And considering, that in accordance with ar- 
 ticles 15 and 16 of the Supreme regulannentary Decree of the 21st of March, 1852 ; arti- 
 cles first, third, and fourth of that of. the 10th of May of the same year; article first 
 
of 5th of January 1857 ; the law of the 31st of March of the same year; and article 
 213 of the Regulation of Commerce, all national or foreign vessels are absolutely pro- 
 hibited, under penalty of confiscation, from entering or anchoring in ports which are 
 not open, and much less in those in which there may be guano v : that by said Supreme 
 Decrees, the exportation of guano for foreign parts is only permitted from the Chincha 
 Islands, and this only by the consignees of the State, undtT the legal requisites and 
 license of the Supreme National Government, the only authority competent to grant it, 
 of which circumstance the Captain of that vessel could not have been ignorant, since, so 
 soon as he anchored in Iquique, he was obliged to know what he was or was not per- 
 mitted to do, in strict observance of the Regulations and fiscal laws of the Republic; and 
 finally, that it is proved that the aforesaid captain not only entered and anchored at Pa- 
 bellon de Pica, but that he embarked in his vessel guano belonging to the nation, infring- 
 ing all the fiscal laws which prohibit it : for these reasons, agreeing with the Contaduria, 
 we decree, in judgment of first instance, that the North American ship Lizzie TJiomp- 
 son merits confiscation, in conformity with the provisions of the Supreme Decrees, 
 and laws already cited, applying her value to the Commander of the National war- 
 steamer Tumbes, Don Ignacio Duenas, and other captors, in the mode and form pre- 
 scribed in article 298 of the Regulation of Commerce, excepting the guano existing on 
 board, which belongs to the State. Let it be known. 
 
 PEDRO SALMOX. 
 
 The Collector of the Custom-House, and Judge of Confiscations, gave and pronounced 
 the above sentence while exercising jurisdiction, and holding open Court, on the day of 
 its date, the employees of the office being witnesses. 
 
 PEDRO DE CUBILLAS, 
 
 Notary of Customs. 
 
 The foregoing conforms with the original sentence, to which I refer in case of necessity, 
 and in virtue of my orders. 
 I give the present in Callao, May 26th, 1858. 
 
 PEDRO DE CUBILLAS, 
 
 Notary of Customs. 
 
 (Translation. 1 ) 
 
 NEW YORK, August 4th, 1858. 
 
 The undersigned, Minister Resident of Peru, has had the honor to receive the commu* 
 nication of the Hon. Secretary of State of the United States bearing date the 22d of 
 May last, with its accompanying documents, and is gratified at having contributed to 
 convince the Hon. Secretary of the absence of all grounds for the peremptory reclam- 
 ation pressed by the Minister of the United States in Lima, on account of the affair of 
 the American bark Dorcan O. Yeaton. The satisfactory result of the Hon. Secretary's 
 investigations in that regard, happily relieves the undersigned from the necessity which 
 he might otherwise have been under, to dissent from various comments upon the facts, 
 and several of the views of public law, with which the Hon. Secretary was pleased to 
 accompany his conclusions. So far therefore as concerns the case alluded to, the under- 
 signed confines himself to an expression of the satisfaction with which the Government 
 has welcomed the termination of so leading a portion of the controversy set on foot by 
 the Minister of the United States in Peru. 
 
 Before proceeding with further reply to the communication of the Hon, Secretary of 
 State, the undersigned asks leave to rectify one among the errors committed in the 
 translation of his note of the 27th of March. The undersigned said therein, "that the 
 
85 
 
 Hon. Mr. Cass had stated to him that there were cases in which a vessel of war might be 
 excused for visiting merchantmen on the high seas, and that the Government of the 
 United States in such cases would make no formal reclamation, &c" The phrase 
 "might be excused" was rendered "might be justified" and the undersigned was 
 placed, by so grave a misinterpretation, in the position of saying, what, in view of the 
 principles maintained for fifty years by this Government, in respect to the right of visit- 
 ation on the high seas in time of peace, and indeed what in view of the language of the 
 Hon. Secretary himself in the interview referred to, it was out of the question that the 
 undersigned could have asserted. 
 
 The undersigned observes, with profound regret, that he has not been able, as he had 
 confidently hoped, to secure the assent of the Cabinet of Washington, to that solution of 
 the remaining question, in regard to the American vessels Georgi.ana and Lizzie Thompson, 
 which to his Government and himself has seemed just and in conformity with the estab- 
 lished principles of the law of nations. He is nevertheless gratified to observe that the 
 Government of the United States, confiding in the friendship and loyalty of the Govern- 
 ment of Pern, has abstained from elevating the matter to the level of an international 
 dispute, allowing it rather to remain as a simple reclamation for damages the position 
 which it naturally and properly occupies. Regarding it in this last point of view, and, 
 indeed, in every other, the undersigned still entertains the hope that it will be in his 
 power to satisfy the Government of the United Stales, of the legitimacy of the proceed- 
 ings of the Peruvian Government in the premises, and the total invalidity of the claims 
 which are sought to be founded thereupon by the parties interested. While repre- 
 senting, in this, the views, and obeying the instructions of his Government, the under- 
 signed does not fail to recognize the characteristic ability with which the Hon. Secretary 
 of State, sustaining himself by the opinion of the Hon. Attorney-General, has maintained 
 the adverse view of the question. But the undersigned, at the same time, has not been 
 able to avoid perceiving, in the written argument of the eminent jurisconsult referred to, 
 what seems to the undersigned a signal departure from the principles laid down, in 
 similar cases, by the authorities generally approved, and he therefore feels it is his 
 duty frankly to state the reasons which justify his dissent from the conclusions therein 
 asserted. 
 
 Without entering into minor details, the undersigned believes that the respective 
 arguments of the Honorable Secretary of State and Attorney-General may be reduced to 
 the support of the following propositions: 
 
 1. That at the time of the seizure of the vessels referred to, a civil war existed in 
 Peru, and that one of the belligerent parties having possessed itself of the port of 
 Tquique and the gunno deposits in Punta de Lobos and Pabelion de Pica, had estab- 
 lished nnd maintained at those poin's n government defaclo. 
 
 2. That the vessels in question, having sailed to Iquique, in the prosecution of a lawful 
 trade and under the guaranties of the existing treaties between the two nations, were 
 under an obligation to conform to the regulations which they found established there, by 
 the existing authorities, without responsibility to the Lima Government for the conse- 
 quences of such conformity. 
 
 8. That the captains of the said vessels were not only under an obligation to obey the 
 constituted authorities de facto in Jquique, but had, at the same time, the perfect right 
 to avail themselves of the licenses which were issued to them there, to load guano at the 
 other two points ; and further, that under the laws of nations, the said licenses afforded 
 them guaranty and protection against the seizure and confiscation of their vessels and 
 the punishment of those on board, when the Lima Government, through the means of the 
 national ship Turnbes, was enabled subsequently to capture them in the act of loading 
 guano, in open violation of the laws referred to by the undersigned in his communication: 
 of the 27th of March. 
 
86 
 
 Thp undersigned does not deem it important to continue the discussion of the question, 
 whether the movement of General Vivanco had or had not reached the point of actually 
 establishing a civil war in Peru, at the time when the events occurred which are now in 
 controversy. Whether there was really a civil war, or a mere insurrection, more or less 
 serious and extended, is altogether immaterial, in the opinion of the undersigned, so far 
 as the principles of public law are concerned by which the present case is governed. 
 The doctrine to which the Government of Peru feels justified in adhering, and in the 
 presentation of which the undersigned regrets to perceive that he hud not the good for- 
 tune to make himself as clear to the Honorable Secretary of State as he had desired, is 
 this: 
 
 That in order to confer upon the individuals of friendly nations, the rights of neutrals 
 between belligerents, as in case of war, the mere existence of a parti;. 1 revolution, un- 
 equivocal as it may be, does not suffice, nor the actual, forcible possession, by the revolted 
 party, of an integral portion of the revolutionized territory. There is an indispensable 
 necessity for something further. 
 
 It is necessary that the Government, in favor of whose citizens neutral rights are in such 
 case invoked, should have recognized, previously and officially, the existence of what is 
 sought to be treated as a civil war. In the absence of such official recognition, civil war, 
 however actual and existing it in fact may be, does not exist in law as the basis of any 
 claim of right whatever, on the part of the citizens of such nations as may have failed 
 to recognize it, and the existence of such civil war is therefore a question purely of 
 law, and not of fact or of proof, as the Honorable Secretary of State supposes and 
 argues. 
 
 The Honorable Attorney-General, led on by the force of his personal convictions, which 
 are certainly worthy of all consideration, has been pleased to characterize as " perverse'' 
 whoever should venture to deny the sovereign and legitimate authority as respects 
 other nations to their citizens of a victorious revolutionary party, in actual possession 
 of the whole revolutionized country. The Supreme Court of the United States, ap- 
 proving the decision of the Lord Chancellor of Great Britain, in the case of the city of 
 Berne against the Bank of England (9 Veazey, 348), which will be hereafter considered, 
 appears to have differed in opinion with the learned Attorney-General upon this point, 
 and to have held that even in the extreme circumstances stated, it was indispensable to 
 the legitimacy of the new government that it should have been officially recognized by 
 the nation before whose tribunals it might seek the enforcement of any right. But even if 
 this weie not so, the undersigned would still be under the necessity of questioning the 
 application, to the present case, of the argument referred to, even although by so doing 
 he should expose his doubts to the imputation of similar perversity, The present con- 
 troversy has reference to a faction still struggling for power, and not a revolution which 
 had been consummated. It is the case of a supposed civil war still pending and in- 
 volving the relations and respective rights of belligerents and neutrals, It raises no 
 question as to a civil war ended, where there are neither neutrals nor belligerents any 
 longer. The portion therefore of the Attorney-General's argument which has been 
 cited is wanting in that analogy which alone could give it force, and fails, in consequence, 
 to affect the principle asserted by the undersigned, against which it was directed. 
 
 Nor does the undersigned discover in the citations of the Honorable Attorney that 
 confirmation of the positive conclusions arrived at in his opinion, which the learned col' 
 league of the Honorable Secretary of State so emphatically attributes to them. The 
 quotation from Vattel (Book 3, chap. 18, sec. 295), in which that eminent publicist asserts 
 the principle, "that the two parties to a civil war are to be regarded for the time as dis- 
 tinct political societies, and stand in the same predicament as two belligerent nations," is 
 far from controverting in any particular the doctrine which the undersigned is advancing. 
 On the contrary, if the Honorable Secretary will be so good as to examine the original, 
 he will find that Vattel directs himself expressly and exclusively to the relations of the 
 

 87 
 
 belligerent parties between themselves, -without touching, even remotely, the question of 
 their relations with other nations or the individuals who compose them. In the well- 
 known case of the Sanlisima Triuidid (7 Wheaton, 337), referred to by the Attorney- 
 General in the same connection, the Supreme Court of the United States makes use, it is 
 true, of the language winch the Attorney-General has copied, but it is with the interpo- 
 sition of a single word, which appears to have escaped the attention of that learned 
 (fficer, though it gives to the sentence quoted a directly opposite signification in its ap- 
 plication to the present argument. The expression of the Honorable Attorney is as fol- 
 lows ; " Each of them" (that is to say, the two parties to a civil war) " is deemed by us 
 to be a belligerent nation, having, so far as concerns us, the sovereign rights of war, and 
 entitled to be respected in the exercise of those rights.'' 
 
 The language of the Supreme Court, as it. appears in the Report, is the following, 
 viz.: 
 
 "The Government of the United States has recognised the existence of a civil war, be- 
 tween Spain and her Colonies, and has avowed a determination to remain neutral between 
 the parties, and to allow to each the same rights of asylum, hospitality and intercourse. 
 Each party is therefore deemed by us a belligerent nation, having, so far as concerns us, 
 the sovereign rights of war, and entitled to be respected, in the exercise of those 
 rights." 
 
 In view of the application of the omitted, but essential, word "therefore," it appears 
 to be matter of demonstration that the Supreme Court not only did not desire to lay down 
 tho absolute doctrine sought to be attributed to i';, but, on the contrary, based the separate 
 and belligerent existence of the parties referred to, exclusively upon the previous recogni- 
 tion, by the Government of the Union, of the existence of a civil war between them. 
 
 Obvious and indisputable as this inference must be, the undersigned draws it with 
 still greater confidence, in contemplation of the frequent occasions of, which the Supreme 
 Court of the United States has availed itself to reiterate and confirm the identical doc- 
 trine. In the case of Rose vs. Himely, (4 Cranch, 272), the high tribunal referred to ex- 
 presses itself in the following manner t 
 
 "The Colony of St Domingo, originally belonging to France, had broken the bond 
 which connected her with the parent state, had declared herself independent, and was 
 endeavoring to support that independence by arms. France still asserted her claim of sov^ 
 ereignty, and had employed a military force in support of that claim. A war, de facto 
 then unquestionably existed between France and St. Domingo. It has been argued, that 
 the Colony having declared itself a sovereign state, and having thus far maintained its 
 sovereignty by arms, must be considered and treated by other nations as sovereign in 
 fact, and as being entitled to maintain the same intercourse with the woild that is main- 
 tained by other belligerent nations. In support of this argument, the doctrines of Vattel 
 have been particularly referred to. But the language of that writer is obviously ad- 
 dressed to Sovereigns, not to Courts. It is for Governments to decide whether they will 
 consider St. Domingo as an independent nation, and until such decision shall be made or 
 France shall relinquish her claim, courts of justice must consider the ancient state of things 
 as remaining unaltered, and the sovereign power of France, over that colony, as still sub- 
 sisting." 
 
 In the case of Gelston vs. Hoyt (3 Wheaton, 324), the Supreme Court reasserts the 
 same principle, in the language following : 
 
 "No doctrine is better established than that it belongs exclusively to Governments to re- 
 cognize new States in the revolutions which may occur in the world ; and until such recog- 
 nition, either by our own Government, or the Government to which the neio State belonged, 
 courts of justice are bound to consider the ancient state of things as remaining -unaltered. 
 This was expressly held by this Court, in the case of Rose vs. Himely, and to that decision, 
 
on this point, we adhere. And the same doctrine is clearly sustained by the judgment of 
 foreign tribunals." 
 
 At page 634 of the same volume, in the criminal case of Palmer, the Supreme tribunal 
 reiterates the same doctrine?. Latterly, in the year 1852, the Honorable Chief Justice 
 of the United States pronouncing the judgment of the Court, in the case of Kennett vs 
 Chambers (14 Howard, 46), expresses himself in these words: 
 
 " Undoubtedly, when Texas had achieved her independence, no previous treaty could 
 bind this country to regard it as a part of the Mexican territory. But it belonged to tho 
 Government, and not to individual citizens to decide lohen that event had taken place." And 
 on pp.ge 51, the Chief Justice, confirming the decisions already cited, adds: 
 
 " The question whether Texas had or had not, at that time became an independent 
 state was a question for that department of our Government, exclusively, tuliich in charged 
 with our foreign relations. And until the period ichen that department recognized it as an 
 independent state, the judicial tribunals of the country were bound to consider the old state 
 of things as having continued, and to regard Texas as apart of the Mexican territory." 
 
 The high American authority, Mr. Wheaton, commenting upon some of these decisions 
 in his elements of International Law (Part 1, chap. 2, sec. 10), concludes his observa- 
 tions thus : 
 
 "This question must be determined by the sovereign legislative or executive power of 
 the other states arid not by any subordinate authority, or by the private judgment of 
 their individual subjects." 
 
 And it is further to be observed that the principle so emphatically adopted and pro- 
 mulged by the Supreme Court of the United States does not appear, in any way, to au- 
 thorize the restriction supposed by the Honorable Attorney-General to exist, when he 
 indicates the following as the limit of the legitimate doctrine upon the subject, viz. : 
 
 "It has been doubted whether a mere body of rebellious men can thrust itself among 
 the family of nations and claim all the rights of a separate power, upon the high seas, 
 without some sort of recognition from foreign governments." 
 
 It were barely impDSsille to employ language more remote from doubt upon the sub- 
 ject, than that used so repeatedly by the Supreme Court and the cases to which that 
 language is applied are very far from having exclusive reference to rights which are to 
 be exercised on the high seas. On the contrary, in the case of Eose vs. Himelv, the cap- 
 ture in question was made by a cruiser of the French Government and not by a vessel of 
 the rebels: and the principles laid down by the Court had no connection whatever with 
 the privileges or rights of the latter upon the ocean. The case of Kennett vs. Cham- 
 bers arose out of a personal contract, having no relation of any sort to the maritime 
 rights of Texas as a revolted province. And, surely, indeed it would be strange, if an 
 official recognition by foreign governments were requisite to give to " a mere body of 
 rebellious men" the rights of belligerents upon the high seas, and were not requisite to 
 clothe the very same rebels with the rights of belligerents on shore. It seems difficult 
 to comprehend the principle upon which such a distinction could with any plausibility be 
 rested. 
 
 Neither has the Supreme Court, in the judgment of the undersigned, left any room 
 for the other distinction which the Honorable Secretary of State has united with the 
 Attorney-General in seeking to draw: that is to say : that the necessity of an official 
 recognition, by foreign nations, exists only where the independence of a revolted colony 
 or province is in question, and is not involved in the simple case of a domestic war, 
 whose only object is to change the personnel of an existing government. In the above- 
 mentioned case of Palmer (p. 635), the Supreme Court speaks, in express words, of the 
 recognition " of the existence of a civil war," and not of the recognition of the inde- 
 pendence of a revolutionary colony. So, in the case of the Sanlisima 2rinidad, the Court 
 
89 
 
 declares, with equal emphasis, that although the Government of the United States had 
 not recognized Buenos Aj'res " as a sovereign, independent government," it had never- 
 theless " recognized the existence of a civil war, between Spain and her colonies," which 
 latter sufficed, and was requisite, to confer upon those colonies the legitimate character 
 of belligerents. And in order to remove all doubt upon the point, and to show that the 
 Supreme Court intended to apply the doctrine in controversy as well to those internal 
 revolutions which only alter the form of government, or contemplate a change in the 
 individual rulers of nations already established, as to those civil wars whose object is to 
 introduce a new arid independent member into the national family, it is only necessary 
 to recur to the aforementioned case of the City of Berne against the Bank of England 
 (9 Veazey, 348), decided by Lord Elden in the British Court of Chancery, and adopted as 
 authority by the Supreme Court, in Gelston vs. Hoyt. The question there arose upon a 
 claim set up, in 1804, by the new revolutionary government of Berne, in Switzerland, to 
 certain public funds of that city which had been invested by the ante-revolutionary 
 authorities of the same. The Lord Chancellor ruled against the plaintiffs, assigning as 
 his only reason, that the British Government had not recognized the substituted Govern- 
 ment of Switzerland, and the British Courts, therefore, could not admit the lawfulness 
 of its existence, or give to it judicial recognition. And if a government, a ruler, or a 
 war, each or all of thorn, existing as such, in fact, are yet incapable of a legal existence 
 before the tribunals of foreign nations, in the absence of an official recognition by the 
 governments of those nations, surely they must be incapable of such legal existence a 
 fortiori, as regards the individual citizens or subjects of the same. 
 
 Indeed, it is not easy to perceive the plausibility of the distinction proposed to be 
 drawn by the Honorable Secretary, between the necessity, which he admits, for the 
 recognition of the existence of a civil war, where its object is the independence of a 
 colony, and the absence of such necessity, where the civil war aims only at a domestic 
 revolution. The question mooted here, is as to the existence or non-existence, in Peru, 
 of a civil war, in the contemplation of the laws of nations. It is not a question as to the 
 origin of such war, nor as to its purposes, but simply as to its legal existence. And if, 
 when Peru, as a colony, was engaged in open, actual war with the mother country, that 
 war did not exist de jure, as to the citizens, or before the tribunals of the United States, 
 until the American Government had first, officially, recognized its existence ; if after 
 Peru had conquered, nnd actually attained her independence, that independence still 
 required an official recognition from the Government of this Union, before it could exist 
 in contemplation of the laws of the Union, how is it possible to argue, logically, now, 
 that the mere existence in fact of a civil war in the present case, unrecognized by this 
 government, can produce, of itself, and without any recognition whatever, the legal con- 
 sequences of a civil war de jure? Upon what principle is it, that the recognition which 
 was indispensable in the first two cases, ceases to be requisite in the third? 
 
 The doctrine of the Supreme Court is founded upon a principle which is equally 
 applicable to all three of the cases, and governs them alike. It is the lofty and control- 
 ing principle announced by the Chief Justice, in the case of Kennett vs. Chambers that 
 the management and settlement of international questions tie serious and delicate 
 questions of peace and war are the exclusive prerogative of governments, and have not 
 been confided even to the tribunals of justice much less to the caprice, the interests, 
 or the passions of private individuals. It is a principle which is not only allowed by way 
 of favor to revolutionized nations, but is insisted upon by other countries on their own 
 behalf, and for their own protection. If a civil war, without having been recognized as 
 such by foreign nations, confers, ipso facto, upon the parties thereto the obligations of 
 belligerents, it must of necessity confer upon them, and equally without such recogni- 
 tion, the rights of belligerents likewise, so that the Government rebelled against must, 
 from that moment, stand discharged from all responsibility for the outrages which may 
 be perpetrated by the rebels, within its territory, against the citizens of other nations, or 
 
 12 
 
90 
 
 their property. And it is because nations are not willing to allow each other thus to go 
 free at their mere will and pleasure from their mutual obligations and responsibilities, 
 that they have reserved the right of determining, each for itself, whether a case has 
 arisen sufficiently exceptional to modify the ordinary rules, and have refused to treat the 
 existence of a civil war as any ground of excuse or of right, unless they themselves, pur- 
 suing the line of policy which they may judge convenient, have seen fit to recognize its 
 existence, officially, 'beforehand. 
 
 And unless the undersigned is greatly in error, the Honorable Secretary of State, him- 
 self, w T hile denying this principle in the latter portion of his argument, makes what is 
 logically a concession of its consequences, when he admits, with reference to the Dorcas 
 C. Yeaton, that "Peru, so far as respects the effect of its political condition upon its 
 intercourse with other powers, was in a state of peace." It would seem impossible to 
 conceive the idea of a nation in a state of peace, so far as regards its rights, and at the 
 same moment in a state of war so far as regards its obligations and the rights of foreign- 
 ers. If peace existed, civil war could not by possibility exist. If, as the Honorable Sec- 
 retary further states, " neither of the parties claimed any of the rights of 
 
 a belligerent connected with that (foreign) intercourse, so that the foreign relations of the 
 country were undisturbed by its domestic communications" "nor," as he adds, "were 
 foreign vessels pronounced to be neutrals " how can all this be true, with reference to 
 the case of the Dorcas C. Yeaton, and yet fail to be equally true in regard to that of the 
 other two vessels when the only difference, in this point of view, between the two 
 cases is, that the United States asserts the facts in the one, and Peru sets up the same 
 facts in the other ? 
 
 If there be any force in what the undersigned has propounded, he might leave, with- 
 out further discussion the remaining, subordinate points which have presented them- 
 selves in this controversy. But the gravity of the principal question does not leave the 
 undersigned at liberty to be governed altogether by his own convictions. He therefore 
 proposes addressing himself, briefly, to the two remaining propositions, in maintaining 
 which the Honorable Secretary and his learned colleague, the Attorney-General, have 
 concurred. 
 
 Conceding, for the sake of the argument, that the Georgiana and Lizzie Thompson 
 sailed to the port of Iquique, in the prosecution of a lawful commerce, it must needs be 
 granted, and the undersigned has no hesitation in admitting, that they were there, under 
 the guaranties of the treaty existing between the United States and Peru. They had the 
 perfect right to enter and depart, conforming themselves to the regulations which they 
 found to exist, and obeying the established authorities de facto. But they were not con- 
 tent with this. Instead of departing, in the further prosecution of the same lawful 
 trade which is supposed to have led them there, they allowed themselves to be se- 
 duced in quite another direction. From obeying the local de facto government, they 
 proceeded to do what was a wholly different thing, namely, to contract with that gov- 
 ernment, or under its authority, for the spoliation of the national property. They knew 
 perfectly well, that the local authorities formed part of a body of rebellious men, exercis- 
 ing but a partial and violent jurisdiction, maintained exclusively by force of arms, and 
 without any recognition whatever, as a government, by the United States, or by any 
 other nation whatever. They knew, or they were bound to know, what were the existing 
 laws of the republic, promulgated notoriously, over and over again, by that Government 
 of Peru with which exclusively the Government of the United States held diplomatic and 
 friendly relations. They were perfectly aware that the guano deposits formed the most 
 important part of the national property. They did not hesitate, nevertheless, to precip- 
 tate themselves, voluntarily and with full knowledge, into a violation of the laws re- 
 ferred to, and thereby to incur the severe penalties which they prescribe, without any 
 other security than that of a license issued for the occasion by a self-styled military au- 
 thority of the revolutionary party. 
 
91 
 
 The mere slatementof these facts appears to the undersigned to draw the obvious line 
 between the active or passive obedience legitimately due to an existing local authority 
 and the voluntary acquisition of positive rights through the medium of such authority's 
 intervention. The right to enter the port of Iquique; to be received as citizens aud ves- 
 sels of a friendly nation ; to be protected whilst they obi-yed the local and Custom- 
 House laws, and to depart, without further responsibility, upon lawful voyages all 
 this, it must be admitted, was the perfect right of the captains in question, and their ves- 
 sels. But it was a peaceful right, under treaty guaranties. When, however, they went 
 so far as to take possession of the public property, they appealed, at once, to what could 
 only be, at the best, a possible right of war, and they took upon themselves the respon- 
 sibility and the risk, not only of the title of the supposed belligerents, but also of the 
 consequences which might be visited upon themselves as participants in the violence 
 committed by the parties with whom they became thus connected. If the absence of all 
 recognition of the state of war, on the part of the Government of the United States, 
 rendered such war a non-existing thing, so far as the citizens of the United States were con- 
 cerned, as the undersigned believes that he had already demonstrated, it is, of course, 
 unnecessary to repeat that the parties can predicate no claim of title, or to protection, 
 after the circumstances thus de-tailed. But apart from this, conclusive as it is, and sup- 
 posing, as before, for the sake of the argument, the legal existence of such civil war, the 
 undersigned has been utterly unable to discover any principle of public law which denies 
 to the Government of Lima, even as a belligerent, the right to interfere, in order to pre- 
 vent the spoliation of the public property, and to punish those engaged in it, who might 
 be seized in the very commission of the criminal act. 
 
 No such principle, certainly, is established in the case cited by the Hon. Attorney- 
 General from 9 Crunch, 191. The Supreme Court did no more, in that case, than decide 
 that the conquest of the Island of Santa Cruz by the British, had converted the territorial 
 products of that island into British, and therefore enemy's, property. But Great Britain 
 was an established nation which had seized the island as prize of war; it was not a body 
 of rebels who had managed to obtain temporary possession of a portion of the territory 
 of their country. So too, the property captured, in the case referred to, was private 
 property, taken upon the high seas, on its way to a market. It was not public property, 
 remaining, still, with the parties who were despoiling it, upon the very spot where the 
 outrage was being committed. 
 
 Neither does the case of the United States vs. Rice (4 Wheaton 246), also cited by the 
 Attorney-General, appear to the undersigned to establish any adverse doctrine. There, 
 the Supreme Court determined only, that the conquest and military occupation, by 
 Great Britain, of a port belonging to the United Slates, rendered the same, for the time 
 being, a foreign port, in contemplation of the Custom-House laws of the Union ; and that 
 the restoration of the authority of the latter over such port did not render the jus post 
 liminii applicable, or create any responsibility to the laws of the United States, on the 
 part of those who had imported goods there during the hostile occupation. In that case 
 and the preceding one, the conquest and hostile possession were the acts of a declared 
 public enemy, in the prosecution of a public war, and the ruling of the Court does no 
 more than recognize and authorize temporary obedience to the regulations established 
 by the conquerors, and enforced by their military power. If the accused, instead of 
 having carried merchandise to the port of Castine, paying the duties levied by the 
 English upon such importations, had, with full knowledge, purchased from the enemy 
 a portion of the public property of the United States, or had complicated himself with 
 them in despoiling such property, and had been captured thereafter, on the spot, by the 
 American forces, with the property thus criminally acquired still on board of his vessel, 
 there might then, perhaps, have been some analogy between that case and the present. 
 Yet even then, it would still have been the case of a conquest made and authority con- 
 
ferred by a public enemy, in a perfect war, and not one involving merely the forcible pos- 
 session of a rebellious party. 
 
 The case quoted from Gallison (vol. 2, p. 485), turns upon the same principles as that of 
 the United States vs. Rice, in nowise confounding simple obedience to an authority de 
 facto, or the immunity which follows such obedience, with the acquisition of positive 
 rights through contracts made with such authority, or under its auspices. The explicit 
 language of Mr. Justice Story, on pages 602, 503, leaves no room for doubt upon the 
 subject. And indeed it would have been remarkable if the obvious distinction referred 
 to had not be?n respected, when we consider the principle which is at the foundation of 
 the whole matter. Strangers visiting the territory of a friendly nation secure them- 
 selves against all responsibility, by obeying in good faith, what is commanded by the 
 authorities actually existing at the place of their visit but why? Because they are 
 under compulsion so to obey, and it would not be just to hold them responsible for what 
 they could not lawfully resist, or possibly avoid. The immunity which such obedience 
 brings with it is the correlative of the obligation and the necessity to obey. But when 
 there is no such obligation, and no necessity whatever; when what is done is not a tiling 
 commanded or prescribed, but purely and wholly volantury and gratuitous -whence 
 proceeds the right to claim immunity ? Surely no such right can exist, unless the obliga- 
 tion of obedience be confounded with the privilege of speculation. There was no law, 
 there was no regulation whatever, on the part of the intrusive authorities of Iquique 
 which imposed upon foreigners the obligation to buy, to load, or to transport guano. If 
 the parties did any of these things or engaged to do them, it was for their own 
 pleasure, or their own profit, without compulsion, or the shadow of compulsion. It was 
 because they thrust themselves forward, in a spirit neither friendly nor honorable, to 
 take advantage of the unfortunate circumstances of Peru. It was not because those cir- 
 cumstances imposed upon them any force or necessity whatever. And to invoke, now, 
 in their behalf, the defence that they did no more than submit to the laws which they 
 found in operation, would be to prostitute a respectable and wholesome principle. 
 
 Pursuing the train of events which the case discloses, it will be seen that the vessels in 
 question were seized by a national armed ship of Peru, in the admitted act of doing 
 what by the laws of that republic exposed the vessels to confiscation, and their captains 
 and crews to the punishment affixed to robbery. In regard to the guano which was 
 found on board of them, it can scarcely be necessary to say, that it became instantly, 
 again, the property of the nation. If it were necessary to invoke the jus post liminii, 
 in maintenance of this conclusion, the undersigned would entertain no doubt of his ability 
 to satisfy the Honorable Secretary of State, that the exclusion of movable property 
 from the operation of that principle is confined altogether to the movables of individuals, 
 and that in every case public or national property when possibly recovered, whether 
 personal or real, and whether it be in public or private hands, returns at once to its 
 legitimate original ownership. But there is a principle, mucli more simple, which ap- 
 plies to the present case, and that is that the guano in question was never in the full 
 power of the captured parties, and had never been carried to a place of security, as is 
 requisite to vest title in such cases, under the laws of war. (Vattel, Book 3, Ch. ] 3, sec. 
 196.) The act of appropriating and removing it had not been consummated, and the 
 right of property consequently remained unaltered. 
 
 The undersigned cannot avoid expressing, in this connection, his profound regret and 
 surprise that the Honorable Secretary of State should have thought it just and proper, 
 to characterize almost as " a piratical enterprise," the expedition of the steamer Tum- 
 bes, which resulted in the seizure of the vessels in controversy, within the unquestionablr 
 and sovereign jurisdiction of the Republic of Peru. No one knows better than the Hon 
 orable Secretary, how little expressions of that sort contribute to vindicate justice or 
 give force to reason. To controvert or discuss them would do so, perhaps, still less, and 
 the undersigned is persuaded that in abstaining from further commentary upon them he 
 
93 
 
 not only consults the dignity of the nation which he represents, but manifests in the 
 most unequivocal manner, the consideration which his government sincerely entertains 
 for that of the United States. But the undersigned, at the same time, is unable to per- 
 ceive or admit the force of the argument with which the Honorable Secretary has been 
 pleased to accompany the phrase alluded to. If the rights of the supposed government 
 of Vivanco were those of a government de facto, and none other, as is conceded; and if 
 such a government, as it cannot be denied, cease?, from its very nature, to have any 
 rights whatever, at the instant and wherever it lacks force to maintain them it is not 
 easy to imagine upon what right the spoliation in controversy and the participation of 
 the American vessels therein can be made to rest, when their very seizure by the Tumbes 
 incontestably establishes, that the revolutionary party was without the necessary force 
 there, to secure the exercise of the privileges which it pretended to sell and protect. 
 And let it not be said, that the day before or the day after, a different state of things 
 had, or would have, existed. The question is, as to the day when the seizures were 
 made. A nd if, on that day, the supposed government of Vivanco did not possess, at the 
 places referred to, a force sufficient to protect the vessels which were there, under its 
 licenses, and whose rights depended altogether upon such protection, it is clear that such 
 alleged government ceased, then and there, to be a government de facto ; that its licenses 
 became null and no effect, and that the rights which depended upon those licenses were 
 null and ineffectual also. Tb>$ American citizens therefore who, with full knowledge 
 and upon their own responsibility, had assumed the risk of such a result, relying upon 
 force as the only guaranty of the insecure rights to which they pretended, had no cause 
 to complain if those rights disappeared with the force which was to give them their only 
 foundation and vitality. They knew, unequivocally, that the licenses which they carried 
 were those of insurgent and unrecognized authorities, and that unless those licenses 
 should shield them, they were guilty of a violation of the Peruvian laws and incurred 
 the penalties prescribed for such violation. They were aware that without the force 
 necessary to sustain them, those licenses were worth absolutely nothing. That force 
 was wanting, surely the consequences must rest upon themselves, and not upon the 
 government whose authority they had set at naught, plundering its treasury and tread- 
 ing its laws under their feet. 
 
 But there are other considerations, of great weight, which, of themselves alone, would 
 justify the action of the Peruvian Government, even if that action be still regarded 
 altogether with reference to the relations of belligerents and neutrals. 
 
 Let the conduct of those who controverted the American vessels be glossed as it may, 
 it hiid no solitary characteristic of that legitimate commerce which belligerent nations 
 are under an obligation to respect. On the contrary, it was without more nor less than 
 voluntary and important aid afforded to the revolutionary and traitorous forces, furnish- 
 ing them, directly or indirectly, with the means of rendering the national property of 
 Peru available in the war which they wore waging against their country. 
 
 Leaving out of view the suspicious circumstances, developed by the provisions of the 
 charter parties, to which the undersigned alluded in his previous communication, and which 
 have not been and cannot be explained ; omitting, also, to comment upon the obvious and 
 direct result of the trade referred to, in favor of the rebels there are certain positive reve- 
 lations upon the point, well worth considering, which appear to have escaped the astute 
 observation of the Honorable Secretary of State. In the declaration and protest, sworn 
 to before the Consul of the United States in Lima, on the 5th of February, 1858, by the 
 master of the Lizzie Thompson, and communicated to the Peruvian Government by the 
 American Minister there, the following confession will be found, which is copied 
 literally. 
 
 "The authorities at Iquique granted a license for the ship Lizzie Thompson to pro- 
 ceed to Pavilion de Pica, in that province, and load guano there on account of the Gov- 
 
ernment of Peru, to the extent of one thousand tons or more, in conformity with a 
 contract made -with Frederick Frcraut." 
 
 In the declaration of the crew of the same vessel, sworn to before the same consul, 
 and likewise communicated to the Government at Lima, as worthy of credit, by the 
 American Minister, the parties confess that they were captured " while the ship was 
 takng on board a cargo of guano, under a charter-party made with the authorities DE 
 FACTO, and sanctioned in a legal manner by the Government of that part of Peru." 
 
 It consequently appears, beyond dispute, by these declarations, that at least one of the 
 vessels seized had been allowed to be freighted by the revolutionary authorities them- 
 selves, under the contrivance and pretext of a private commercial transaction, and that 
 the same vessel was in the criminal act of loading grain, for the benefit and on secret 
 account of these authorities when she was seized by the Tumbes, There is no loom 
 whatever for doubt, in view of what the undersigned has heretofore stated with regard 
 to her charter-party, that the other vessel was in precisely the same pcsition, commit- 
 ting in disguise the same voluntary breach of the laws and rights of Peru, and rendering, 
 for pay, the same assistance to her enemies. It may well be asked, under what principle 
 of the law of peace or war an intervention, so distinct and positive, can possibly be 
 styled legitimate. The extension which the Honorable Attorney-General is disposed to 
 give to neutral traffic may well be wondered at, when he designates a complicity like 
 this, with the rebels as " a trade lawful and fair in its character." Liberal as the modern 
 doctrines may be, it will not be easy to cite a solitary respectable authority which has 
 gone to the extreme of protecting, against the forces of a revolutionized nation, the 
 vessels and citizens of neutral countries, prostituting themselves for hire to the material 
 service of the insurgents, and assisting them directly in their treason, and in the spolia- 
 tion and removal of the national property. It is not easy to imagine a more effective 
 and substantial guilty participation in the treason itself, or an act more in conflict with 
 the principles so becomingly and unequivocally announced by the Supreme Court of the 
 United States, in the case of Kennett vs. Chambers (14 Howard, 50). A citizen of the 
 United States, says the Chief Justice, " can do no act, nor enter into any agreement to 
 promote or encourage revolt or hostilities against the territories of a country with which 
 our government is pledged, by treaty, to be at peace, without a breach of his duty as a 
 citizen, and the breach of the faith pledged to the foreign nation." 
 
 And again, on the same page: "He is bound to be at war with the nation against 
 which the war-making power has declared war, and equally bound to commit no act of 
 hostility against a nation with which the government is in amity and friendship/' 
 
 An allusion becomes likewise necessary, here, to a marked error on the part of the 
 Honorable Attorney-General in a matter upon which he relies confidently and mainly, to 
 support the positive conclusions which he is pleased to announce. The undersigned 
 alludes to that portion of the Attorney-General's opinion, in which he makes the follow- 
 ing assertion ; 
 
 "Neither the commander of the Turnbes, nor the government which he served, has 
 attempted to vindicate the justice or legality of these proceedings, on the ground that 
 the clearance and license under which the Americans acted were unlawful in form or 
 substance. It is not pretended that the authority given, on the face of the license, was 
 insufficient to cover the acts of the persons who had it." 
 
 It is not to be denied that the licenses in question were sufficient, so far as respects 
 their mere phraseology, to cover the acts in controversy. They certainly are obnoxious 
 to no objection for lack of amplitude in their terms, and it is quite true that no such de- 
 fect has been ascribed to them. But the Honorable Attorney-General, upon taking the 
 pains to examine, with a little more care, the last communication of the undersigned, and 
 the correspondence of the Government at Lima with the Hon. Mr. Clay, would have 
 found a positive repudiation there of the legality and regularity of the licenses referred 
 
to, both in form and substance. He would have seen, that under the commercial regu- 
 lations of Peru regulations established and promulgated for many years, and against the 
 force and validity of which then.; has been neither legislation, nor decree of any kind, 
 even on the part of the pretended revolutionary government no authority whatever of 
 the republic was clothed with the power to issue licenses for the transportation of 
 guano to foreign parts, and that the Custom-House at Callao alone had the right to give 
 clearances to vessels with such cargoes and such destination. And in order that no doubt 
 may remain, and no protest may be wanting, upon a point so essential, the undersigned 
 again insists, respectfully, upon the irregularity and nullity of the licenses in question, 
 both, as to form and substance and he does so, altogether irrespectively of any question 
 as to the legitimacy of the authorities by whom the licenses were issued, and the suffi- 
 ciency of the terms of the instruments themselves. He means, distinctly, to say: That 
 allowing to Don Felipe Rivas, for the sake of argument, all the privileges of an author- 
 ity de facto, the said Rivas had no better right to issue the licenses in controversy, than 
 the commander of the " Home Squadron" of the United States would possess, to author- 
 ize the entry of a Peruvian vessel into the port of New York without complying with 
 the custom-house laws of this country. It is not enough that an authority should be a 
 lawful one ; it is necessary that it should at the same. time be a competent authority. 
 It must not only'have some legitimate jurisdiction, but must be clothed with the very 
 jurisdiction which the case requires, and which is pretended to be exercised. 
 
 Let us look, then, at the facts upon which the efficacy of these pretended licenses has been 
 rested. The rebel officer who issued them, styles himself " Brigadier General of the 
 National Army, and Commander General of the Navy." He performed his official 
 functions, as ia not denied, on board the rebel ship Apurimac, accompanying her on her 
 continual voyages up and down the coast. De facto, as well as under the titles which 
 he assumed, he was a military officer nothing more. The effigy of a custom-house 
 which he kept up at Iquique, was but a simple farce, as appears from the affidavits of 
 the parties interested. The captain of the Lizzie Thompson (as will appear by his formal 
 declaration taken before the regular tribunal in Callao, and duly communicated to the 
 Minister of the United States at Lima) on being asked in virtue of what permit or 
 license he sailed for Pabellon de Pica to load guano ? replied " In virtue of the license 
 granted by the Commandancia General of the Navy at Iquique, and of the special per- 
 mission of Don Felipe Rivas, as the only authority commanding at that place." And 
 the captain of the Georgiana, in his sworn declaration of Feby. 3d, 1858, (taken before 
 the American Consul at Callao, and communicated by the Minister of the United States 
 at Lima to the Peruvian Government) calls this very license of Rivas " a custom-house 
 license," saying that when leaving Iquique, he procured a custom-house license to pro- 
 ceed to Point Lobos and another place, to load guano." Thus this identical Rivas con- " 
 stituted personally the only authority actually ruling in Iquique, and exercised in person, 
 although under the forms and with the ceremonies of a custom-house, the absolute power 
 of disposing at his mere will and pleasure of all the property of the republic on its 
 southern coast. And yet, although perfectly aware of all this, as they themselves 
 confess ; notified, likewise, by the very form of the licenses themselves, of the irregularity 
 of their source ; knowing that those licenses depended altogether for their efficacy upon 
 the authority of a military officer, without any defined jurisdiction, and only exercising 
 local civil functions in virtue of his guns and in their temporary presence ; the claimants 
 still pretend that no allegation of irregularity, in form or substance, can be made against 
 their licenses, and that they themselves deserve from their government the consideration 
 which is due to a lawful commerce, innocently undertaken, under the shield of the 
 authorities whom it was their obligation to obey. The sole and conclusive answer to 
 all this is that which has already been made. Neither as Brigadier General of the Army, 
 nor as Commander General of the Navy, nor even as Administrator of the Customs at 
 Iquique supposing him to have exercised the functions of all of the three offices, de jure, 
 
96 
 
 as he usurped them in fact would Rivas have possessed, undef any law or decree, of 
 custom of Peru, the right to grunt the licenses which he issued. They were irregular, 
 usurped, and without lawful precedent of any sort; issued fraudulently, and accepted, 
 as has been shown, with full knowledge of their defects and their criminality. Unless, 
 therefore, an authority de facto is clothed with powers more ample than those which 
 are the recognized attributes of the same authority, when established </<? jure, it is im- 
 possible that such licenses, so issued, can be the basis of any right, in any view of 
 the laws of peace or war. 
 
 But the undersigned does not desire, any longer, to occupy the attention of the Honor- 
 able Secretary of State, with the discussion of the questions which depend upon the legal 
 existence of a civil war in Peru, at the period referred to ; having demonstrated, as it 
 seems to him, the nullity of the pretensions in controversy, even supposing that inad- 
 missible theory to be the correct one. He relies, with reiterated confidence, upon the 
 principle asserted in his note of the 27th of March, and corroborated by the views here- 
 tofore embodied in tin's communication ; that as the Government of the United States 
 had not recognized the existence of a civil war in Peru, there was, as respects the vessels 
 in question, neither war nor neutrality there, and they found themselves, as foreign ves- 
 sels in a friendly port, bound to know and obey the laws of the government recognized 
 by that of their own country, and responsible 10 the tribunals of Peru for every infrac- 
 tion of those laws which they might commit. In the case, already cited, of Rose vs. Himely, 
 and in those of Hudson vs. Guestier, and Lafont vs. Big^lou , heard at the same time, deci- 
 ded in the same connection (4 Cranch, 293), and reviewed afterwards (6 Cranch, 281), with 
 the case first named, the undersigned seems to himself to perceive so absolute an iden- 
 tity, in principle and circumstances, with the case now under discussion, that he pro- 
 poses concluding his present observations with an allusion to them. 
 
 A portion of the Island of St. Domingo being in open rebellion, and several of its 
 ports in the possession of the insurgents, the French authorities of the island provided 
 by decree for the arrest and confiscation of all vessels, which might carry on commerce 
 with the rebels, or be found within a certain distance of certain enumerated portions of 
 the coast. The American vessels, whose capture gave rise to the judicial proceedings 
 referred to, had violated the decree just mentioned, and were seized in consequence. 
 Without entering into the details of the decisions, it is sufficient for the undersigned to 
 note, that the following propositions were recognized and established, viz. : 
 
 1. That the decree alluded to was a legitimate and authoritative municipal law, not 
 withstanding the revolution. 
 
 2. That notwithstanding the actual existence, de faclo, of a war between the rebels 
 and the French Government, such war did not exist de jure, so as to protect citizens of 
 the United States as neutrals in the violation of the said decree, inasmuch as the 
 existence of such war had not been officially recognized by the United States Govern- 
 ment. 
 
 3. That the capture of the Vessels within (and even without) the territorial jurisdic- 
 tion of the island they having infringed the provisions of the prohibiting decree alluded 
 to was a lawful capture and of plenary force. And 
 
 4. That the judgment of a competent French tribunal, ratifying the capture and con- 
 demning the vessels accordingly, was final and conclusive against the parties interested, 
 without ulterior recourse of any kind, judicial or political. 
 
 The Honorable Secretary of State was made aware, by the communication of the un- 
 dersigned, dated the 27th of March, of the various municipal regulations of Peru, pro- 
 hibiting the guano trade and the visits of foreigners to the guano deposits regulations 
 which were openly violated by those on board the Georgiana and the Lizzie Thompson. 
 Those vessels having been seized, within the territorial jurisdiction of Peru, and carried 
 
97 
 
 to the port of Callao, in order that their violation of those laws might be passed upon 
 by the competent tribunals of the country, the limited abilities of the undersigned do 
 not enable him to comprehend how, without doing violence to the principles just enume- 
 rated, as settled by the Supreme Court, it is possible to introduce into the present case 
 the question of an unrecognized civil war, for the purpose of placing in doubt the abso- 
 lute right of those tribunals, to decide, without ulterior recourse, and without responsi- 
 bility on the part of the Peruvian Government, what the municipal laws and institutions 
 of Peru may authorize them to determine. Tho undersigned has, in fact, but just now- 
 learned from his government, that the tribunals referred to, in the exercise of their con- 
 stitutional functions and acting with the impartiality peculiarly due to the circum- 
 stances of the cases, have recently decreed the confiscation of the vessels in controversy, 
 for violation of the laws so often referred to in this discussion. The Executive Govern- 
 ment of Peru being under the same obligation to respect the judgments of those tribu- 
 nals, which would be incumbent upon the Government of the United States in the case 
 of a decision by the Supreme Court, and being equally without right or power to hinder 
 or modify the judicial action, the undersigned is gratified to know that the Courts of his 
 country have proceeded in accordance with the principles sanctioned, as he has showed, 
 by the Supreme Court of this, under circumstances so entirely alike. 
 
 If in the free discussion upon which he has felt it his imperative duty to enter, on 
 this occasion, the undersigned has principally occupied himself wilh the decisions of the 
 Supreme Court of the United States, upon the various points which have arisen, it has 
 not been, as he begs the Honorable Secretary of State to believe, with any particular 
 desire to place the doctrines of that high tribunal in contrast with those asserted by the 
 political government of (lie Union. On the contrary, he would, more naturally, have 
 desired to address himself to those authorities upon the law of nations with which he is 
 in re familiar, h id not the opinion of the Honorable Attorney -General of the United 
 States been officially communicated to him, wherein that high functionary refers, in cor 
 roboration of his views, to the decisions of the Chief Tribunal of his nation, with so un- 
 hesitating a confidence, and so absolute an exclusion of the possibility of a rational 
 opinion to (he contrary of his own, that the undersigned had no recourse but to investi- 
 gate the supposed authority for conclusions so overwhelming. And having found, in 
 his judgment, a very decided departure, on the part of the learned Attorney-General, 
 from the principles consecrated so repeatedly by the solemn sanction of the same ele- 
 vated tribunal; believing too that by rendering such departure palpable to the Honor- 
 able Secretary, and through him to His Excellency the President of the United States, 
 ho might reverse an obstacle in the way of a satisfactory settlement of this controversy, 
 the undersigned felt the utility of addressing himself to investigation, even at the ex- 
 pense of the unavoidable prolixity of citations so numerous and extended. The results 
 of his labors inspire him with the most lively confidence. 
 
 And if doctrines, established so deliberately by the Supreme Court of the Union, 
 could require any confirmation, it would be found in (he fac^ that t e Chili.m Govern- 
 ment, directly, and that of France, through the medium of its representative at Lima, 
 have adopted and recognized the same principles, in immediate and recent connection 
 with the present case. The Honorable Secretary will remember, that at the time of the 
 seizure of the Georgiana and the Lizzie Thompson, various Chilian vessels were likewise 
 taken by the Tumbes, at the same place, engaged in the commission of the same offence. 
 He will likewise call to mind that Mr. Freraut, the French Consul at Iquique, was the 
 charterer of the Lizzie Thompson for the unlawful voyage in the prosecution of which 
 die was captured. The Chilian Government, having bten appealel to for its interven- 
 tion, by the parties interested in the captured vessels, not only refu.-eJ to intervene, but 
 communicated, directly and decidedly, to the Minister of Peru, its recognition of the 
 perfect right under which the seizure had been made. Mr. Freraut also, the Consul of 
 France in Iquique / having solicited an official intervention, in his behalf, on the part of 
 
 13 
 
98 
 
 the Charge d' Affaires of France, at Lima that functionary not only rejected his appli- 
 cation, but informed him that the Government of Peru had acted, in the premises, in 
 virtue of a perfect and indisputable right. And in order to mark more conspicuously 
 the recognition of this right by the French Government, its Representative at Lima de- 
 manded from the consul referred to a surrender of his official clurge, and hastened to 
 communicate to the Government of Peru the steps which he had so taken. The under- 
 signed will not surrender the hope of being still able to say to his government, that the 
 Government of the United States participates in the just and friendly views, adopted so 
 frankly and voluntarily by the Powers referred to. 
 
 Convinced, as the Honorable Secretary cannot fail to be, of the sentiments which ani- 
 mate the Government of Peru in its relations with that of the United States, it is of 
 course needless to intimate, that neither the pecuniary interest involved in the case, nor 
 any arbitrary or retaliatory spirit, has had the slightest share in the resistance which has 
 been made to the present reclamations. For Peru, the question is one of principles, vi- 
 tally important principles, v. pon the rightful settlement of which, depend alike the do- 
 mestic peace, the preservation of her national wealth, her credit and her destiny. Her 
 principal riches the resources up n which she relies for her development and improve- 
 ment in the future are to be found in the guano deposit upon her coasts. Jf the 
 mutineers of a national vessel, or any band of pirates or rebels, by the simple act of 
 taking possession of a guano deposits, under the pretext of a political revolution, are 
 converted, from that instant, into a belligerent power, and confer, ipso facto, upon the 
 citizens or adventurers of other countries, the character and rights of neutrals, so that, 
 without any previous action on the part of their own governments, they can buy, de- 
 spoil and remove, at their free will, the national property which may be at the place 
 in dispute not only without responsibility to the Government of Peru, but under the 
 protection of the poweiful nations to which they may belong it is clear that the apparent 
 resources of Peru have for her no effective existence whatever. It is in vain to recog- 
 nize her right to the guano deposits in question, because, with the qualification sug- 
 gested, her right to her property is but the sad privilege of being despoiled of it. It is 
 in vain to go through the form of treaties of peace and amity with governments, if the 
 individual citizens of the contracting powers have the privilege of determining, for 
 themselves, when they see fit, the existence of a state of war which annuls, at oi:e blow, 
 all the rights of Peru over her own property, and opens the door to the utter anni- 
 hilation of her sovereignty. 
 
 And it must not be said, in reply, that it is the duty of Peru, herself, to maintain al- 
 ways, .with sufficient force, the authority which she claims and desires to exercise. In- 
 ternational laws have been adopted, and treaties are entered into, in order that nations 
 may not of necessity be always upon the footing of war. Every onward movement of 
 civilization should tend towards the banishment of force, and the elevation of justice and 
 reason, as the guides and security of nations. Every principle of public law consecrates 
 the protection of the weak, and enforces the obligation of the powerful, to vindicate, as 
 against their own citizens, the rights of nations which have not strength enough to take caie 
 of their own defence. Nor is this merely a guaranty to the weak it is none the less a pro- 
 tection to the strong. There is no nation, whatever be its power, which is always proof 
 against revolution, or can hope to be forever secure against the temporary usurpation of 
 its ports or its possessions. The United States, themselves, with their colossal strergth, 
 have not of late been able to avoid the unhappy spectacle of one of their territories in 
 open rebellion. And it is in order that such domestic strife, to which all nations are exposed, 
 may be confined within the narrowest limits of injury ; in order that the peace of the 
 world may not every day be broken or human blood be uselessly poured out or in- 
 ternational relations complicated fatally that governments, and not individuals, have 
 been clothed with the exclusive right of judging whether there is peace or war peace 
 within, as well as peace without civil war, not less than public? war, The Government of 
 
99 
 
 the United States, by virtue of its Republican constitution is in a position to illustrate, 
 as with its gigantic power it has the means of maintaining, the broad and elevated prin- 
 ciples of civilization and humanity. The Government of Peru therefore will not be- 
 lieve, and much less will the undersigned anticipate, with his long experience of the 
 honorable and just spirit by which this government is animated that it will give its 
 practical approbation, in the end, to principles which must be utterly fatal to Peru, con- 
 verting the wealth which Providence has bestowed upon her, for her regeneration and 
 prosperity, into the mere temptation and prize of revolution and anarchy. 
 
 The undersigned begs the Honorable Secretary of State to accept the assurances of his 
 most respectful consideration. 
 
 J. I. DE OSMA. 
 
 The Honorable Secretary of State of the United States. 
 
 DEPARTMENT OF STATE, ) 
 WASHINGTON, Nov. 29th, 1858. J 
 
 The undersigned, Secretary of State of the United States, has the honor, in con- 
 formity with the intimation conveyed in his note of the 24th instant, to communi- 
 cate herewith to Sefior Juan I. de Osma, Minister Resident of the Peruvian 
 Government, a copy of the instruction which, under date of the 26th instant, has 
 been addressed by the undersigned to the Envoy Extraordinary and Minister Plen- 
 ipotentiary of the United States in Peru, in relation to the cases of the two 
 American vessels, the Georgiana and Lizzie Thompson, seized and detained by the 
 Peruvian authorities. 
 
 After having given to Mr. Osma's learned note of the 4th August, the most 
 mature consideration, and with every disposition to give to the Peruvian Govern- 
 ment the benefit of the argument therein so ably prosecuted, the undersigned is 
 unable to assent to Mr. Osma's conclusions, and has reviewed some of the promi- 
 nent points of dissent, in the accompanying despatch, which for reasons of expedi- 
 ency is addressed to our Minister at Lima, but the copy of which, herewith 
 enclosed, Mr. Osma will be good enough to regard as the reply to his note of the 
 4th August. 
 
 Mr. Osma will find himself by this note released from the detention and personal 
 inconvenience to which he has been subjected on account of this discussion, the 
 Government of the United States having determined to adjust the questions 
 involved with the Peruvian Government at Lima, through the minister of the for- 
 mer at that place. 
 
 The undersigned avails himself of this opportunity to offer to Mr. Osma the as- 
 surances of his distinguished consideration. 
 
 LEWIS CASS. 
 
 To His Excellency So or DON JUAN I. DE OSMA, 
 &c., &c., &c. 
 
100 
 
 DEPARTMENT OF STATE, 
 WASHINGTON, Nov. 26th, 1858. 
 To J. EANDOLPH CLAY, Esq., 
 
 &c., &c., &c : 
 
 gi r? With my despatch to you of the 1st ultimo, I transmitted a copy of the 
 note of Mr. Osma to this department, and also informed you that the question in- 
 volved in the cases of the Qeorgiana and Lizzie Thompson had been again submitted 
 to the Attorney-General for his consideration, and that I hoped to receive his 
 answer in time to convey to you the views of the department upon the whole mat- 
 ter before the departure of the next mail. The pressure of business has prevented 
 the Attorney-General from giving the subject the necessary attention till within a 
 few days ; and I embrace the earliest opportunity, after the receipt of his views, to 
 make known to you the opinion of this government, and its expectation that the 
 Government of Peru will recognize the justice of these claims, and will make pro- 
 vision for their payment. 
 
 It is not denied by the Government of Peru that a state of civil war actually ex- 
 isted in that country at the date of the transactions in question. The fact is as 
 credibly attested and as universally known as the existence of a government at 
 Lima. Nor is it more a matter of doubt or dispute that the party opposed to the 
 government whose central power is at Lima, had got possession of the southern 
 part of the country, including the scene of the acts complained of, the port of Iquique, 
 and the guano deposits. From that portion of the country the former government 
 had been expelled, its adherents driven out or subjugated, its authority overturned, 
 and its laws suspended or nullified, except in so far as the conqueror, for his own 
 convenience, permitted them to remain in force. Upon these incontrovertible facts, 
 the department based the proposition that the master of the American vessel going 
 to the southern part of Peru was justified in obe} ; ing the authorities which he 
 found established there, though they had been set up by a recent revolution ; and 
 for such obedience he was not liable to be punished by the government at Lima 
 any more than by the government at Madrid. A stranger is required to obey the 
 laws of the country he goes to. The laws of every country are those rules of con- 
 duct which are prescribed by those who hold and exercise a present control over 
 it not the will or wishes of other persons who assert a naked claim to its govern- 
 ment, without the power of enforcing obedience to their decrees. An act which 
 was lawful when tried by the standard of lawfulness in force at the time and place 
 it was done, cannot be tried over again by another standard previously abrogated, 
 and afterwards set up. These are elementary principles of natural justice on which 
 all public law is founded. 
 
 Mr. Osma insists, however, that a civil war in one country cannot be known to 
 the people of another, but through their own government, that the existence or 
 non-existence of civil war is a question, not of fact, but of law, which no private 
 person has a right to decide for himself that foreigners must regard the former 
 stats of things as still existing, unless their respective governments have recognized 
 the change. But I am very clearly of the opinion that an American citizen who goes 
 to Southern Peru may safely act up3ii the evidence of his own senses. If he sees that 
 the former government has been expelled or overturned by a civil revolution, and 
 a new one set up and maintained in its place, he cannot be molested or even blamed 
 for regulating his behavior by the laws thus established- nay, he has no choice ; 
 the government de facto will compel his obedience. It will not give him leave to 
 ignore the matter of fact while he waits for the solution of a legal problem at home. 
 
101 \ j > :> : ::/> 
 
 Besides, if he resists the authority of the party in possession on the ground that 
 another has the right of possession, he departs from his neutrality, and so violates 
 the duty he owes to both the belligerents, as well as the laws of his own country. 
 
 Mr. Osraa's rule, if carried out to its consequences, would be fatally injurious to 
 the rights and interests of commerce. Let us see how it would operate in a case 
 which may be readily supposed. An American vessel, bound to a distant country 
 for purposes of lawful trade, unexpectedly finds on her arrival that a civil war has 
 revolutionized the government at the port of her destination. Her commander is 
 not at liberty to regard the fact as a fact ; he must come back and settle it as a 
 matter of law, by procuring a recognition from the Government of the United 
 States. He returns with the recognition to find that during his absence a counter 
 revolution has restored the old order of things, and quieted the strife. The law and 
 the fact are at cross purposes still ; still the unfortunate trader is compelled to shut 
 his own eyes on the plain truth, and see only through the medium of his govern- 
 ment. I know of no authority for such a doctrine. The public law of the world 
 does not require nations to regulate their intercourse with one another by legal 
 fictions, but by existing facts known and ascertained in the way most likely to pre- 
 clude mistake. 
 
 Although the Peruvian Minister has shown great familiarity with our judicial 
 decisions, yet being a stranger it was natural that he should fall into some errors. 
 It is not my purpose to assume the task of enumerating those errors in detail, but 
 merely to remark that Mr. Osma has seemed to mistake for rules of international 
 law, expressions which the Supreme Court used only to define the limits of its own 
 jurisdiction. Mr. Osma, I apprehend, has also erroneously supposed that what the 
 judges said concerning the national independence of new States, was applicable to 
 the matter in hand. 
 
 But this discussion of abstract principles is not the shortest nor the best way to 
 settle a practical difficulty. Mr. Osma has felt this to be true. Laying aside his 
 reasoning upon general rules, he comes at length to the very case itself. Speaking 
 of the actual parties, their actual contact, and the actual circumstances by which 
 they were surrounded, he makes the following frank and inequivocal admission : 
 " The right to enter the port of Iquique, to be received as citizens and vessels of 
 u a friendly power, to be protected tuhilst they obeyed thelocal and custom-house laws) 
 " and to depart without further responsibility upon lawful voyages ; all this, it 
 " must be admitted was the perfect right of the captains in question and their ves- 
 " sels." This acknowledgment narrows the ground of controversy between the 
 two governments very materially, and might have settled it altogether if Mr. 
 Osma had not fallen into what appears to be another error. 
 
 Mr. Osma contends that foreigners going to Iquique are justifiable in obeying the 
 laws of the government de facto, in so far only as that obedience is entirely passive, 
 but positive rights voluntarily acquired with the sanction of such laws are not entitled 
 to any respect whatever. On the contrary, I hold it to be perfectly clear that, as 
 to foreigners, the government de facto is, to all intents and purposes, substituted in 
 the place of the late government. The persons having at present the control of the 
 country may give to strangers every privilege which could have been conferred on 
 them by the former rulers, in case those rulers had not been expelled. If the gov- 
 ernment at Lima had retained possession of the guano deposits, and had authorized 
 a cargo of that article to be shipped by an American vessel, the lawfulness of the 
 shipment would hardly have been contested. When the place was conquered from its 
 previous rulers all authority and jurisdiction over it, legislative, executive and judi- 
 
. - . 
 
 102 
 
 cial, So" far as foreigners were concerned with it, passed to and became vested in the 
 conquerors. Mr. Osma does not deny that the revolutionary party had power to 
 regulate foreign commerce at those ports which lay within the territory controlled 
 by it, to prescribe the rate of duties payable on imports or exports, and to appro- 
 priate the public revenue arising therefrom to its own use. How can it be said 
 that a government to which powers like these are conceded has no authority to 
 license the shipment of guano ? According to Mr. Osma's reasoning there are two 
 governments in Southern Peru. Each stands in an attitude of deadly hostility to 
 the other, but foreigners are bound by the laws of both. The one is supreme in 
 the power to levy taxes on general commerce, but the trade in guano can be 
 licensed only by the other. Guano is a usual and lawful article of commerce, but 
 a dealer must refuse to take it from the parties who have it to sell, he must make his 
 contracts with others who are out of possession and cannot deliver it. The Gov- 
 ernment at Lima has made one law on the subject, but is wholly unable to execute 
 it, or to protect any person who obeys it, while the revolutionary government has 
 another law, backed by all the power which is necessary to enforce it. Under 
 these circumstances, I am constrained to insist that an American is not punishable 
 for failing to square his conduct by the requirements of the former law. The fact 
 that the steamer Tumbes was able to arrest the American vessels in the act of 
 taking in their cargoes does not prove to my satisfaction that the Government at 
 Lima had the power to make laws at the place of the capture. A mere irruption 
 by the forces of one belligerent into the territory of another does not create legisla- 
 tive supremacy. A sudden dash across the border, followed by a retreat equally 
 rapid, is not a conquest of the hostile country. Even if the Tumbes had been 
 accompanied by force enough to subdue the country and keep possession of it, the 
 Government at Lima would not have been authorized to punish the peaceable 
 citizens of neutral states for acts which were lawful at the time they were done. 
 
 If the commander of the Tumbes had contented himself with asserting the title 
 of his government to the guano, by taking it out of the American vessels, and 
 compelling them to leave the coast empty, the case would have been a very differ- 
 ent one. While I cannot admit that even this would be justified by the law of 
 nations, the case would not be accompanied with the aggravating circumstances 
 which characterize the subject under consideration. But the vessels themselves 
 were seized the masters and crew were captured, and carried out of the jurisdic- 
 tion of one government into that of another, where they were tried and condemned 
 under laws to which they owed no obedience. This was a severe, and as it appears 
 to me, a cruel infliction upon the peaceful traders of the United States, for acts 
 which were in perfect accordance with the laws of the country where they were 
 done. 
 
 The right of a belligerent to capture the public property of his enemy, has never, 
 that I am aware, been denied, unless Mr. Osma's note is to be construed as a denial. 
 In my opinion such captures give to the taker a title which neutrals may regard 
 as perfectly good, and which carries with it all the incidents of true ownership, 
 including the right of alienation. That it extends to both belligerents in a civil 
 war. as much as to two hostile nations, must be conceded, if the writers on public 
 law are not grossly mistaken in saying that when such a war exists, the parties are 
 to be regarded as separate political communities. 
 
 If the Government at Lima had been able to retain possession of the guano de- 
 posits, it certainly might have authorized every act which was done by the masters 
 of the Lizzie Thompson and the Georgiana. The opinion has already been ad- 
 
103 
 
 vanced by the Department, that the new government succeeded to all the rights of 
 the old Government at Lima, as soon as the latter was expelled, and the supremacy 
 of the former was established by force of arms. 
 
 Mr. Osma insists that the masters of the Georgiana and Lizzie Thompson violated 
 their neutrality by giving unlawful aid and comfort to the revolutionary chiefs. If 
 this allegation were proved to be true in point of fact, the parties on whose behalf 
 this reclamation is made would be wholly unworthy the protection of their govern- 
 ment. But I have seen no evidence nor heard of any to show that they are open 
 to such an accusation. The purchase of guano from the revolutionary government, 
 or even the shipment of it on account of this government, is not a violation of neu- 
 tral obligations. If Peru had other beds of guano within the territory not con- 
 quered from her, she might, and undoubtedly would, have dealt with American 
 citizens and other foreigners in the same way. But the Peruvian Government has 
 rot arrested, nor tried, nor condemned these vessels, and the men who were on 
 them, for taking part in the war, but for a violation of the revenue laws enacted by 
 the Government of Lima. That government has ignored the fact of the war itself- 
 denied practically the conquest of the country by- its enemies, and treated the 
 Americans as if there had been no war and no conquest. It will scarcely fall back 
 at this stage of the discussion, upon a charge which was not preferred against the 
 parties before their condemnation. 
 
 In conclusion, it is the duty of this government to insist upon the proper repa- 
 ration for what it cannot but regard as a very grievous wrong. The relations which 
 the United States have always sought to establish and maintain with Peru, are 
 those of the closest friendship. This government is still animated by the same 
 spirit, and trusts, with great confidence, that it is fully reciprocated. The wrong 
 must be repaired, and the Government of the United States expects that the repa- 
 ration will be no longer delayed. 
 
 A copy of this despatch has been sent to Mr. Osma, with the intimation that no 
 further discussion will be held here upon the subject. 
 
 I am, Sir, your obedient servant, 
 
 LEWIS CASS. 
 
 To His Excellency Mr. DE OSMA 
 
 Minister Resident of (he Republic of Peru. 
 
 WASHINGTON. 
 
 Sir, The questions you have submitted to me, now the subject of a correspondence 
 between Peru and the United States, arising from the seizure under the authority of the 
 former, of the American vessels the Georglana and Lizzie Thompson, on the 24th of 
 last January, I have with great care considered. This was due to their intrinsic import- 
 ance, and especially was called for by the attitude of my own government. If feeling 
 could influence the performance of a professional duty, there is, in this instance, 
 the strongest case for its operation. The opinion, therefore, which, after anxious examin- 
 ation, I have formed, and am now about to express, has been arrived at from a conviction 
 too decided to be affected by any adventitious circumstances, and whatever weight it 
 may be entitled to, is, perhaps, in some degree, increased by that consideration. The 
 facts, as I collect them from the correspondence, are these : Both the vessels were, at 
 the time of their seizure, engaged in loading with guano from the deposits of that article 
 at Punta de Lobos and Pabellon de Pica, for exportation to foreign ports, These de- 
 
lOi 
 
 posits, as well as all such deposits, have always notoriously belonged to the Government 
 of Peru, and their exportation and the mode of making it have ever been regulated by 
 her laws. Her principal source of revenue, for years, has been these deposits. They 
 constitute a part of (he treasure of the nation, as much so as the bullion that may, from 
 time to time, be in her exchequer. They contribute to her support in peace and in war, 
 and are as vital to her interests as the imposts which daily contribute to the treasury of 
 the United States are vital to the interests of the latter. The clearances which these 
 vessels obtained, and under which they were loading, were not granted by the authority 
 of Peru, nor were the licenses or contracts granted or made by her authority. On the 
 contrary, these were all of them from a usurping body of her subjects, committing by 
 these very acts treason against Pern. In fact, however, the usurpers had for the time 
 actual possession of the named places, but it was in known violation of the authority of 
 the government. Neither this possession nor the pretended government under which it 
 was held was ever acknowledged as legal by the other nations of the world, and es- 
 pecially, not by the United States. On the contraiy, as to the latter, Mr. Secretary 
 Cass, in his letter to your Excellency of 22d Ma} r , 1858, when denying that belligerent 
 rights attached to Peru because of the insurrection of Vivanco, and in seeking on that 
 ground to make good a clai'n upon Peru for the detention of another American vessel, 
 the Dorcas C. Yealon, and to justify the conduct of the American Minister at her Court, 
 in the prosecution of such claim, expressly states " that the foreign relations of the 
 "country (Peru) were undisturbed by its internal commotions." And in another part of 
 the same letter he asserts, that notwithstanding such commotions, " the usual commer- 
 " ciul relations between Peru and the United States were continued, and the vessels of 
 " the former resorted to the ports of the latter, carrying freight, and searching employ- 
 " ment as before." It is also known that during the struggle, such as it was, no legisla- 
 tive or executive recognition of the existence of a civil war was made by the United 
 States. On the contrary, all the diplomatic intercourse between the two governments 
 continued unchanged, and recently a treaty was negotiated between tin-in by the execu- 
 tive, which received, at the last session, the sanction of the Senate. Under these ciicum- 
 stances, the question in issue between the two government?, and upon which you have 
 done me the honor to ask my opinion is, have the United States any claim upon your 
 government for damages or indemnity of any kind, for the seizures of the Oeorgiana and 
 Lizzie Thompson ? 
 
 First, Upon principle, irrespective of judicial or other authority, can such a claim be 
 maintained 1 I am perfectly clear that it cannot, and for these, to me, very obvious and 
 controlling reasons : Until there is a recognized change in the condition of a government, 
 such government is responsible to foreign nations for all wrongs committed within its 
 limits upon the persons or property of their subjects or citizens. This responsibility has 
 been more than once asserted and enforced by the United States. 
 
 It is ho answer to such a demand that the defaulting government was willing but 
 unable to afford the necessary protection. The duty to protect implies and involves the 
 ability to protect. It is the fact the failure to perform the duty, not the cause of the 
 failure that imposes the responsibility. Every government assumes upon itself the 
 obligation to secure other governments and their people and property against domestic 
 wrongs, and is therefore responsible for all the consequences of such wrongs. ]f, how- 
 ever, there exists an insurrection or rebellion, so marked and long continued as probably 
 to result in general or permanent success, it is for other nations, upon their own respon- 
 sibility, to decide for themselves whether they will consider the rebellious as an actual 
 government, deal with it as such, and hold it as such to every national responsibility. 
 Until this be done the original government is to be treated as the only government, its 
 "foreign relations" are to be considered as " undisturbed," and its " usual commercial 
 " relations" with other nations continue "as before." These principles are too obvious 
 to be disputed ? an.d they indeed being admitted by Mr. Secretary Cass, in his letter o( 
 
105 
 
 22 J May, can there be a doubt that for any wrong perpetrated upon an American citizen 
 or his property, or upon the honor of the United States, by the insurrectionary chief 
 Vivanco, or by his orders, the rightful Government of Peru would have been liable? If 
 so, must it not be, is it not, equally apparent, indeed, is it not a consequence, that for an injury 
 or wrong done to Peru by the United States, or by her citizens, under cover and through 
 the instrumentality of the same insurrection, the United States cannot shelter themselves 
 from the responsibility of such insurrection ? The nation may, it is conceded, by its 
 proper department and under national amenability, adroit the insurrection, and deal with 
 the government created by it as a legal government. But when this is done the original 
 government is, to that extent, as far as the recognizing nation is concerned, at an end, 
 and its responsibility for the acts of the new government is, for the same reason, at an 
 end. Whilst, however, the relations between the original government and other nations 
 remain unchanged ; whilst that continues to be recognized and dealt with as the only 
 government, the existence of a rebellion or insurrection, no matter what its origin, its 
 purpose or its condition can have no effect on the obligations of that government to the 
 rest of the world, or impair in any degree its rights as against the rest of the world. 
 These, all of them, remain precisely as they would have been if no insurrection or rebel- 
 lion had occurred. Jf these propositions be correct, and I do not see how they can be 
 questioned, it would follow, that if at the date of the seizure of the Georyiana and 
 Lizzie Thompson, the vessels had been seized and confiscated by Vivanco, or under his 
 authority, the United Stales would have had a clear claim for indemnity on the Govern- 
 ment of Peru, and I have no doubt would by all proper means have exacted it. The 
 claim upon Portugal for the destruction by a British force of the privateer General 
 Armstrong, in a Portuguese port, and upon Naples, for oul rages committed upon 
 American citizens and property by France or its authority, whilst that power actually 
 governed Naples, are practical illustrations of the doctrine that inability to protect other 
 nations or their subjects, no matter how absolute (it Avas so in each of the instances al- 
 luded to), is no excuse for the failure to protect. This being so, must it not also, and for 
 the same reason, be true that a nation so liable must have exactly corresponding rights 
 against other nations and their people? To maintain a responsibility against such a 
 nation for the wrongs of rebellious subjects, or for other unauthorized wrongs which it 
 was not in her actual power at the time to prevent, and to maintain exemption from, 
 liability for wrongs committed upon her, under the cover of the same rebellious or un- 
 authorized power, is so obviously unjust, that it would seem to be only necessary to 
 state it, to have it at once condemned. And yet the wrong done Peru, and for which 
 these vessels were seized, was of that description, and the claim made by the United 
 States for indemnity for the loss consequent upon the seizure must be made good, if at all, 
 exclusively upon that ground. The idea that a civil war was in fact then existing in 
 Peru, could give to citizens of the United States no rights against Peru, or take from 
 Peru no rights against the citizens of the United States, unless by such war, and by some 
 authorized public act of some legitimate authority of the United States, the antecedent 
 relations between the two nations had become changed. These remaining the same, the 
 rights and obligations of each necessarily continued the same, and these so continuing, 
 the rights and obligations of the subjects and citizens of each towards the government 
 and subjects and citizens of the other necessarily continued the same. The United States 
 could not know and treat in all their foreign and commercial relations with the Govern- 
 ment of Peru as if peace reigned throughout the borders of the latter, and no insurrec- 
 tionary or rebellious standard 'had been raised, and be in a condition to hold Peru 
 responsible for losses suffered by their citizens from acts of wrong perpetrated by 
 unauthorized insurrection or rebellion, and at the same time have the right to exact of 
 Peru, indemnity for acts done in maintaining her own laws against the illegal conduct of 
 citizens of the United States. The two rights are so inconsistent that it is impossible that 
 they can co-exist, and yet the latter is the very right which the United States are now 
 
 u 
 
106 
 
 asserting, whilst having carefully abstained from taking the only steps that could have 
 deprived them of the former, that is to say, recognizing in a proper legal manner, before 
 the wrong now complained of, the existence of a civil war in Peru. The doctrine ap- 
 plicable to such a state of things as did prevail in Peru at the moment, and antecedent 
 to the seizure of the vessels, does not depend on the fact whether war inter se the parties 
 to it then existed or not, nor whether in its subsequent termination, its prior existence 
 was admitted by Peru. It rests entirely on the fact, whether the United States in some 
 constitutional form had recognized it, and by so doing, to that extent had modified their 
 relations with Peru. This, we have seen, was not only not done, but, on the contrary, 
 the entire intercourse between the two nations assumed the continuing, undisturbed, un- 
 impaired, and unquestioned existence of each. The rights and correlative obligations of 
 each consequently remained undisturbed and unimpaired, and for the good name of each 
 should also be held unquestioned. A different doctrine would be pregnant with mis- 
 chief. In its application to the United States it would be especially hazardous. Formed 
 as their Union is of the States composing it, stretching from ocean to ocean, and occasion- 
 ally, however erroneously, actuated amongst themselves by convictions of vitally con- 
 flicting interests, it may be conceived possible that in some moment of political madness, 
 some state or portion of a state may raise the standard of revolt, and set at defiance the 
 constitutional and legal authority of the General Government, and for a time be in the 
 actual possession of a sea-board town. A foreign vessel enters, finds no local authority 
 but the usurped and known usurped one. The custom-house is in its possession. It 
 allows entries ; it grants clearances. It admits importations without duty, or the duty 
 it exacts it appropriates. It disposes of public property. Can any one suppose that 
 such vessels and their officers or agents, and they escaping, that their governments 
 would be harmless by the United States ? Would that government admit as an excuse, 
 much less a justification for such acts, that the parties " had a right to enter any port of 
 " the republic open to foreign commerce, and not blockaded, for the prosecution of their 
 " commercial enterprises ; and it was their duty after such entrance to obey the author- 
 " ities they might find established there," and that the principle " applies with equal 
 " force to questions of internal administration touching the public revenue ?" The 
 inquiry carries with it its own answer. State an opposite case, arising under the same 
 circumstances. The vessel goes into the port, finding the proper authority absent or con- 
 trolled, her master refuses to enter his cargo, his vessel and cargo, and himself, 
 officers, and crew are seized the two former confiscated, and the latter imprisoned 
 for refusing obedience to " the authorities" they found established there. England, whose 
 flag the vessel bears, calls upon the United States for indemnity. Would the justice or 
 honor of the nation for a moment refuse to render it? Would they plead the excuse, 
 that for the time they were powerless to prevent the wrong ? Would they invoke the 
 defence of the existence of a. civil war, and that in such a case the party in actual pos- 
 session is the authority " established there," which it is the duty of the captain after 
 entering, " to obey ?" No government could retain the respect of the world, which 
 should be found maintaining such obviously conflicting propositions. And yet, the 
 indemnity demanded in the cases I am considering, involves this very identical doctrine. 
 Put another case : The Mormons have but recently set at open defiance the authority of 
 the United States. The country of their residence has been for many months in their 
 actual and conclusive possession and under their actual and exclusive jurisdiction. The 
 territory embraces a portion of the public domain. An army of the United States is 
 assembled to put down the rebellion. The civil war exists, the power of the govern- 
 ment to put it down by the means under the control of the executive, is by many 
 doubted. The struggle promises to be at least a long and arduous one. Individual 
 citizens, not parties to the rebellion, find their way there in the prosecution "of their 
 11 commercial enterprises." Strangers, from other lands, are there, with like motives, and 
 taking with them goods liable to duty on importation, into the United States. They 
 
10T 
 
 find, on getting there, no authority whatever but the Mormons. This they "find estab- 
 lished there." If this they are bound " to obey," then, with this, as is alleged to have 
 been the rights of the Georgiana and Lizzie Thompson" are they authorized to contract. 
 The dutiable goods are sold by the license of actual authority, without paying imposts 
 to the United States. The public lands are purchased, and the purchase money handed 
 to the usurping vendors, and patents granted. Would such acts be recognized as legal 
 by the United States ? Would the goods be held exempt from forfeiture? Would the 
 title of the United States to the lands be held extinguished ? Would the actors be 
 adjudged guiltless ? Certainly, yes, upon the grounds assumed by Mr. Secretary Cass, 
 and Mr. Attorney-General Black, and yet, can any one doubt that a different doctrine 
 would and should, in such a case, be maintained, and successfully, by the United States? 
 Could the foreign importer or the land purchaser rely on the rights arising from a state 
 of civil war, and be able, with effect, to stop the United States from contesting the exist- 
 ence of such a war by the fact that they had admitted it in "the recognition," with their 
 officers and the officers of the Mormons, said to have been recently closed, " for their 
 "submission to its authority," and that by the terms of the treaty, "unconditionally 
 "accepted," and approved and ratified by both sides, the state of civil war was fully 
 recognized ? Would they then be found admitting that the restoration of their 
 authority over the district "could justly work no forfeiture for acts previously done" 
 under sanction of the temporary though usurped power of the Mormon rule ? Is it not, 
 on the contrary, obvious, that all such acts would be esteemed as, from the first, wholly 
 illegal, and imparting no right whatever, or exempting in any respect the parties con- 
 cerned, from responsibility to the United States? And what in my view makes the 
 claim upon Peru the more remarkable is the fact, that in the very letter of Mr. Secretary 
 Cass asserting it, he states, what is certainly true in fact and in law, the continuing effi- 
 cacy of their antecedent treaty with Peru, to the stipulation of which, he says, "they 
 "hold on," being the stipulation "which guarantees protection to the citizens, without 
 " regard to whatever changes, violent or peaceable, may take place in the government of 
 " that country." To exact, under this treaty, without regard to changes in the condition 
 of Peru, protection for the citizens of the United States, and to make these very changes, 
 however violent and temporary, the justification for disregarding the laws and property 
 of Peru, and for enforcing, as is now attempted, a claim of indemnity against her, for 
 acts which such laws and the protection of her property imperatively demanded of her 
 interests, honor, and sovereignty, are propositions ,so glaringly untenable and unjust, 
 that they cannot be, even plausibly, supported by argument. Upon principle, then, 
 irrespective of other authority, I consider the demand clearly untenable. 
 
 Secondly. I proceed now to examine it on authority. It is to this source that Mr. 
 Attorney-General Black mainly resorts, and it is there that I propose to follow him. 
 I think it will be seen, and I say it with all respect due to his well-known ability, that 
 he has misunderstood the cases which he refers to, and misapplied the principles 
 which they contain. The question is (for perspicuity I state it again) : What are the 
 legal consequences of a domestic struggle, not recognized by a foreign nation, as 
 establishing the state of civil war, so as to give to the insurrectionists, as well as 
 the existing government, the rights of governments in their transactions with such 
 foreign nation, or its citizens or subjects ? Is it competent for such citizens and 
 subjects to treat with the new party, as a government of itself, without incurring 
 responsibility to the former government ? Mr. Attorney-General holds that it is, and on 
 authority. Is this so? I think not, and I will try, and I hope successfully, to make 
 that opinion good. It is to be ever kept in view, that in such state of things, two ques- 
 tions present themselves. Ftrst, What are the rights of war inter se of the adverse 
 parties? and Secondly, What are the rights of either, between itself and other nations? 
 The government existing before the rebellion, or insurrection, was the only one, over the 
 whole people, known to or recognized by other governments. The introduction of two 
 
108 
 
 nations into the family of nations out of this one, can only be effected by the acts or 
 assent of the former; and, until that is done, they are known but as one people, under 
 one government. All treaties existing at the period of the insurrection remain in force. 
 All reciprocal rights and obligations between itself and other nations remain unimpaired. 
 Whether these are, and how far they are, to be esteemed legitimately modified or extin- 
 guished, on the part of such government, by her inability to comply with them, because 
 of domestic insurrection or civil war, it is for other nations to decide. She cannot of 
 herself, as of right, set up such a defence. Until that decision shall be made, she is 
 bound, as at first, by all national obligations, whether arising from treaties or the law of 
 nations. To effect, therefore, a change in her condition, so as to impair her rights or 
 diminish her duties, can only be done by other nations. And how is this to be accom- 
 plished ? It can be, but in one mode recognizing, by each nation's proper authority, the 
 state of civil war, and thereby agreeing to deal with each party to it as, for the time, 
 sovereign and independent, and equally a member of the national family. But this 
 cannot be done partially. It must be done, as to all purposes and places, for which and 
 in which sovereignty has a right to exhibit itself. It must be extra as well as intra- 
 territorial on the sea as well as the land. It must, of course, be so declared as to vest- 
 each with belligerent rights, to the same extent as in the case of other belligerent 
 nations. Wattel, in the passage cited by Mr. Attorney-General, book III, &c., ch. 18, p. 
 295, states that this is the result of such an event. "The parties in such a contest," he 
 tells us, "must necessarily be considered as thenceforward constituting, at least for a 
 "time, two separated bodies, two distinct societies, standing in precisely the same pre- 
 " dicament as two nations who engage in a contest, and being unable to come to an agree- 
 " ment, have recourse to arms." Here is found no limitation of such right. They are not 
 considered by the author as clothed with these rights on the land, and not elsewhere. 
 On the contrary, the rights are held to be identical with those of two admitted nations 
 at war with each other. And so, indeed, in that part of his opinion, does Mr. Attorney- 
 General understand him. " They are entitled (says Mr. Attorney) one as much as the 
 "other, to the respect of foreigners who deal with them, or meet them on sea or land." 
 And yet, with what is submitted as a palpable inconsistency, he disclaims, in a subse- 
 quent portion of his opinion, the general operation, in fact, of the doctrine. He says, " I 
 "am not required, for any purpose of this opinion, to say how far a revolutionary party 
 " can carry on war upon the ocean, and vex the commerce of the world upon its common 
 "highway," and adds, that it has been doubted " whether a mere body of rebellious men 
 " can thrust itself among the family of nations, and claim all the rights of a separate 
 "power, on the high seas, without some sort of recognition from foreign governments." 
 And yet, why is such a recognition for that purpose required? Each, says Wattel, is 
 an equally independent party; both, in such an event, are "precisely in the same pre- 
 dicament as two nations " engaged in a contest. Each, therefore, does not thereby 
 "thrust itself among the family of nations," but is, by the war itself, one of the family. 
 That Mr. Attorney is, however, correct in requiring to give maritime rights to such a 
 body, "some sort of recognition from foreign governments " must be admitted. But the 
 admission proves that he has mistaken Wattel. The author did not mean to lay it 
 down as national law, that a state of civil war, not recognized by oilier nations, in any 
 way impaired the rights and obligations of such nations, as to the one in which the war 
 exists, or the rights and obligations of that nation, To effect this, such a war, any- 
 where, whether on land or sea, demands the proper recognition of its existence, by the 
 competent departments of the other governments of the world, and the assent thereby 
 involved, that each of the parties to it was to be esteemed, for the time being, one of 
 " the family of nations." He was referring to the general doctrine, not to its particular 
 application, or to the form and manner in which it was to become applicable. This, last, 
 it is the province of each of the other nations to decide for itself. This they 
 may do, sooner or later, but until done, each has the right, and is at its consequent 
 
109 
 
 duty, to consider the nation where the struggle prevails, as still one and indivisible, bound 
 by all its original national obligations, and entitled to all its original national rights. So 
 fur from a different rule being held in the United States, the very cases cited by Mr. 
 Attorney will show it to be that rule and no other. To examine each would unneces- 
 sarily extend this opinion. As establishing the doctrine he supposes Watte! to lay 
 down, Mi 1 . Attorney refers to the case of the " Santissitna Trinidad," 737. In that case 
 one of the questions was, " whether the Independencia was a public ship, belonging to the 
 " Government of Buenos Ayres, and entitled, in the ports of the United States, to the 
 " privileges and immunities of a public ship." One of the objections to this title was, 
 that Buenos Ayres had not " been acknowledged as a sovereign independent gov- 
 " ernment by the Executive or the Legislature of the United States." And in meeting 
 the objection, the Court held "the Government of the United States has recognized the 
 " existence of a civil war between Spain and her colonies, and has avowed a deterruina- 
 " tion to remain neutral between the parties, and to allow to each the same rights of 
 " asylum, and hospitality and intercourse. Each party is, therefore, deemed by us, a 
 " belligerent nation, having, so far as concerns us, the sovereign rights of war, and en- 
 " titled to be respected in the exercise of those rights." Is it not clear, that this main- 
 tains the proposition I hold, and not the one for which the Attorney cites it ? The 
 ground, and the only ground, upon which the right of the Independencia to be esteemed 
 a belligerent, in the ports of the United States, or elsewhere, was placed, was the ante- 
 cedent recognition of the civil war between Buenos Ayres and Spain by the United 
 States. It was on that account, or, to use the language of the court, " therefore" it was 
 because of that fact, and that only, that Buenos Ayres was to be considered as belli- 
 gerent. It obviously never entered the mind of the Court, to place the right upon the 
 fact of the civil war itself, but exclusively upon its recognition by our government. 
 This, if possible, is made the more apparent, by a subsequent case decided at the Mass- 
 achusetts Circuit in 1S38, by Mr. Justice Story, the Judge by whom the opinion of the 
 Supreme Court, just referred to, was delivered. I refer to the case of Williams and the 
 Suffolk Insurance Company, 3d Sumner, 270. In that case, two American vessels, the 
 Harriet and the Breakwater, had gone to the Falkland Islands on a sealing voyage, 
 and, on their arrival there, were seized by one Louis Vernet, acting as governor of the 
 islands, under the authority of Buenos Ayres. The former was carried to Buenos Ayres. 
 and there, under legal proceedings, condemned, the latter was recaptured by her mate 
 and crew, who were left on board with the prize crew, and was brought to the United 
 States, where she was libelled for salvage. The ground taken against the claim was 
 that the islands belonged to Buenos Ayres as a part of her dominion, and that she had 
 the sole jurisdiction to regulate and prohibit the seal fishery, and confiscate vessels il- 
 legally engaged in it. The United States had recognized the Government of Buenos 
 Ayres. That government had always asserted title in the islands, but that title the 
 United States had not acknowledged, and they, the islands, were originally a dependency 
 of Spain. On these facts the Court held, that although, when Buenos Ayres separated 
 from Spain, she might have (in fact she did) claimed the sovereignty also of the islands, 
 as an appendage to her own dominion, still, " that claim, unless enforced by an actual 
 " possession and a full recognition by other nations, could in no just sense, be deemed to 
 " give a fixed title," and that although Buenos Ayres had " undoubtedly been recognized 
 " by the Government of the United States as an independent government," such recog- 
 nition could by no means be extended to an admission of its title to the sovereignty of 
 the Falkland Islands, unless some act of the government could be shown which carried 
 it (that recognition) to that extent. 
 
 Here again is the necessity of recognition maintained, as the only ground on which a 
 revolutionary attempt to change a government can be placed so as to create between 
 the revolutionists and other nations reciprocal rights and obligations. Such a change 
 to such an end, requires the assent of other nations. This wanting, in whole or ID part, 
 
110 
 
 the new candidate for admission into the national family remains, in whole or in part, out- 
 side of it, -whilst the original government continues to be esteemed as still within it, and 
 entitled to all its original lights, and bound by all its original obligations. A case subse- 
 quently occurred, in which the doctrine was again distinctly announced by Mr. Chief Justice 
 Taney, speaking for the Supreme Court, and in terras plainly applicable to the one before 
 me. I mean the case of Kennett et al. v. Chambers, 14 Howard, 38, decided in 1852. The 
 question there was as to the validity of an agreement, entered into within the United States, 
 for the raising, arming, and equipping volunteers for Texas. At the time Texas had declar- 
 ed herself independent, the civil authority of Mexico had been expelled, its invading army 
 defeated, its chief captured, and all present power to control the newly organized govern- 
 ment of Texas annihilated, as was recently after (the 23d December, 1836) announced 
 by our Executive, in a message to the Senate. But her independence " had not then 
 been acknowledged by the United Slates" And because of that circumstance, and that 
 alone, the Court ruled the agreement to have been void. They held, that the citizen of 
 the United States was bound to consider the Government of Mexico as still subsisting 
 in Texas, until the executive or legislative department of his government should declare 
 otherwise, and that the Courts of the United States were equally bound, until that event, 
 " to consider the ancient order of things as remaining unaltered." Nor was the doctrine 
 then new to that Court, but, as stated by the Chief Justice, it had been so settled in the 
 prior cases of Rose v. Hirnely, 4 Cra., 272, and Hoyt v. Gelston, 3 Wheat., 324, and 
 maintained by the English tribunals. It will also be seen Mr. Wheaton, in his " Ele- 
 ments of International Law," gives it as a part of the general national law. He says : 
 " Until the independence of the new State has been acknowledged, either by a foreign 
 " state where its sovereignty is drawn in question, or by the government of the country 
 " of which it was a province, courts of justice and private individuals are bound to con- 
 " sider the ancient state of things as remaining unaltered." (Part 1, ch. 2, s. 10.) In a 
 word, as far as my research has gone, and it has been as complete as I could make it, I 
 can find no other doctrine maintained by government or jurist. But conceding that the 
 doctrine is not as well settled and universally as applicable as I think it to be, yet this, 
 at least, would seem to be past all possible doubt, that in such a rebellion a domestic 
 war, such as existed in Peru at the period when the vessels in question were seized 
 however true it may have been that their compliance with the actual regulations of the 
 port which they entered (inconsistent as they were with the legitimate regulations) 
 would not have subjected them to censure or confiscation, at the instance of Peru it 
 cannot be true, that by such compliance, voluntarily made, the masters or their owners, 
 could acquire title to properly, clearly belonging to that government. 
 
 Justification or apology, from compulsory obedience to the actual power they found there, 
 and which, as they knew or were bound to have known, had never been recognized by 
 the United States, is one thing; but the voluntary acquisition of treasure, belonging to 
 the government, through contracts with such power, is altogether a distinct thing. And 
 such compulsory obedience is also entirely distinguishable from a designed violation of 
 the laws, civil and criminal, of the legitimate government. The United States never having 
 acknowledged the legal existence of the actual authority, but, on the contrary, having 
 continued to treat with the original government, as the only Government of Peru, as if 
 no civil struggle had occurred to her, their citizens could not be in a condition, by any 
 purposed act of their own, rightfully to acquire title in the property of the government, 
 by contract with any self-constituted adverse authority, and in disregard to the known 
 laws of the true owner. Compulsory compliance with the orders of said authority, Peru 
 would have no right to complain of, much less punish ; but to make a voluntary com- 
 pliance and agreements, entered into by means of and upon the faith of such compliance, the 
 foundation of title to the governmental property of Peru, is as unfounded in any principle 
 of national law, as it is offensive to the commonest sense of justice. Commerce so car- 
 
Ill 
 
 ried on is not, with reference to Peru or the United States, a legitimate commerce. It 
 would, on the contrary, be a defiance of the authority of Peru, and a known breach of 
 the laws which she had the right to establish, as a sovereign nation, binding upon all the 
 world, and in no sense, therefore, could it be considered as legitimate. It was, to be 
 sure, in one sense, enterprise, and commercial enterprise; but it was enterprise forbidden 
 by law and honesty an outrage, and a known outrage, upon the authority and rights of 
 a nation with whom the United States were at peace, and upon the most friendly rela- 
 tions, sanctioned and secured by treaties, and should therefore receive the decided cen- 
 sure of our government, instead of its protection. And I am gratified, though not surprised, 
 to know that in this view such conduct has been held by two other nations, the only na- 
 tions except our own whose subjects have engnged in such illicit traffic. The French con- 
 sular agent at Iquiqne was the charterer of the Lizzie Thompson, and his cargo being in 
 port laden at the time she was seized, he applied for redress to the French Charge d'Af- 
 faires at Lima. That officer promptly and properly informed him, that as he had volun- 
 tarily engaged in an unlawful trade, he must take the consequences, and that in making 
 the seizure, Peru had but exercised a perfect and indisputable right ; arid he also directed 
 him, because of his misconduct, at once to surrender his official position. This letter of 
 the Charge was communicated to the Minister of Foreign Affairs of Peru. The same 
 capturing vessel of Peru captured at the same time, and for the same cause, several 
 Chilian vessels ; and that government, on being applied to by the owners, also refused 
 interference, and upon the like ground the clear lawfulness of the captures ; and this 
 decision was communicated to the Peruvian Minister in Chile. I cannot but hope and be- 
 lieve that a more careful consideration of the question will in the end, and at an early 
 day, lead the Government of the United States to the same result. Deeply interested in 
 maintaining its own rights, and the continuing integrity of its own power over every 
 part of the Union, it should be the last to sanction conduct which may hereafter prove 
 so mischievous to its own honor and welfare ; and, above all, should it be its pride, as it is 
 its duty, to show, by its own example, that whilst guarding itself from the pernicious ef- 
 fect of inadmissible and perilous principles of national law, it should scrupulously avoid 
 asserting them in its intercourse with the other nations of the world. 
 
 I have the honor to be, with high regard, your Excellency's obedient servant, 
 
 REVERDT JOHNSON. 
 
 Lyndhurst, near Baltimore, 24th July, 1858. 
 
 NEW YORK, December 2d, 1858. 
 
 The undersigned, Minister of Peru, has the honor to acknowledge the receipt of 
 the note from his Excellency the Hon. Secretary of State of the United States, dated 
 the 29th ultimo, and of the accompanying copy, also kindly transmitted to him, of 
 a despatch addressed by His Excellency, with date of November 26th, to the Honor- 
 able Minister of the United States in Peru, on the cases of the ships Lizzie Thomp- 
 son and Georgiana, which are now the subject of a controversy between the two 
 governments. 
 
 The Honorable Secretary of State wishes that the undersigned should receive the 
 copy of such despatch as the reply to the note he had the honor of addressing to 
 His Excellency on the date of August 4th, and expresses the determination of the 
 Cabinet of Washington to settle the questions raised with Peru by the mentioned 
 cases, through the Honorable Mr. Clay. 
 
 The undersigned, according to the wishes of the Honorable Secretary of State, 
 accepts, as a reply to his said note, the despatch addressed to Mr. Clay, and accepts 
 
112 
 
 it with all the good will with which he is inspired by the conviction that, by adopt- 
 ing such indirect means of replying, His Excellency did not mean to indicate the 
 existence of any objection to the person of the undersigned, whose conduct in this 
 case, as in all his long official relations with the State Department, has been charac- 
 terized by the same spirit of loyalty, friendship, and respect, which, from the estab- 
 lishment of her independence to the present day, has guided Peru in her intercourse 
 with the United States. 
 
 The undersigned very sincerely regrets that the Honorable Secretary of State 
 could not find correct the conclusions contained in the former's note of August 4th, 
 which he founded on the authorities therein quoted ; and it seems to him, that in 
 the state of the question now, the moment has arrived for him to fulfil in their 
 entirety the special instructions received from his government on the matter. 
 
 Accordingly, he has the honor of declaring to the Honorable Secretary of State, 
 that the Government of Peru is ready simply to submit the question raised by the 
 capture of the ships Lizzie Thompson and Georgiana to the decision of any Euro- 
 pean nation, whatever, and to leave to His Excellency the President of the United 
 States, the choice of such power, as well as the prefixing of the time for carrying 
 the thing into effect. 
 
 The undersigned has no doubt that these means, the most just and equitable 
 that could be chosen in the circumstances, between two nations united by the ties 
 of sincere amity and mutual respect, will be accepted by the Government of the 
 United States ; and in this confidence, he avails himself of the opportunity for 
 renewing to His Excellency the Honorable Secretary of State the assurances of his 
 most distinguished consideration. 
 
 (Signed) JUAN I. DE OSMA. 
 
 To His Excellency the Secretary of State 
 of the United States, "Washington. 
 
 Mr. De Osma, Minister resident of the Republic of Peru, has submitted to me 
 the message of the President to the Senate of the United States of the 8th day of 
 June, 1858, with the accompanying documents, including the note of Mr. De Osma 
 to the Secretary of State of the 27th of March, 1858, the reply of the Secretary of 
 the 22d of May, 1853, and the opinion of the Attorney-General of the 15th of May, 
 1858 ; also the note of Mr. De Osma of the 4th of August, 1858, and the opinion 
 of Reverdy Johnson, Esquire ; and has requested my professional opinion upon 
 the questions involved, touching the seizure and detention by the Peruvian Gov- 
 ernment of the American vessels, the Georgiana and the Lizzie Thompson, on the 
 24th of January, 1857, and the reclamations made by the Government of the 
 United States. 
 
 I have given to these inquiries a very careful attention ; and, after the maturest 
 consideration, think that under the circumstances disclosed in those documents, the 
 seizure and detention of the vessels named, by the authorities of Peru, were fully 
 authorized ; and that there is no just foundation for the reclamations preferred on 
 behalf of their owners. 
 
 This conclusion rests, as I suppose, upon principles long and well established, 
 having the sanction of the authority of publicists of acknowledged reputation, and 
 acted upon by reiterated decisions in the Supreme Court of the United States. 
 
113 
 
 To these decisions it is unnecessary that I should refer. They have been ex- 
 amined and discussed in the note of Mr. De Osma, and in the opinion of Mr. John- 
 son. A review of them by me would amount only to a repetition of what has 
 been already well said. I content myself with expressing my entire concurrence in 
 Mr. Johnson's opinion. 
 
 The principles regulating the relations, obligations, and responsibilities of gov- 
 ernments de facto and governments de jure, I had occasion, in an official note ad- 
 dressed to Prince Cassaro, the Minister of Foreign Affairs at Naples, dated on the 
 29th day of June, 1832, particularly to examine. They were applied on that case 
 to the acts of a government not only in the exclusive possession of the territory, 
 but exercising all the functions of a regularly organized community, and recognized 
 as such by other powers. (That note may be found in Senate Documents, 2d Sess. 
 22d Cong, Doc. 70.) Those principles I still believe to be sound; but to maintain 
 that the authority of a regular government may be superseded by the temporary 
 seizure, by violence of an insurrectionary force, of a portion of the public territory, 
 and that such possession gives to the seizers the character and authority of a gov- 
 ernment, though without any of its attributes; and- that citizens of friendly powers, 
 maintaining diplomatic relations with such regular government, may countenance 
 and deal with such insurrectionary force, and violate with impunity the established 
 and known laws of the country, is, in my judgment, to do violence to consecrated 
 principles of international law. 
 
 Nor do I believe that it can with propriety be asserted, that even in a case of 
 acknowledged civil war, its existence, and the obligations and responsibilities it 
 imposes, are matters to be ascertained by the private citizens of foreign govern- 
 ments. This duty and authority belong to those governments themselves, having 
 charge of their foreign relations, and not to speculating adventurers. A different 
 doctrine, as it strikes me, would be pregnant with the most mischievous conse- 
 quences ; and I speak with confidence when I affirm, that the whole series of de- 
 cisions, from time to time pronounced by the Supreme Court of the United States, 
 will be found, when carefully examined, distinctly to negative this pre-eminently 
 pernicious principle. 
 
 JOHN NELSON. 
 
 Baltimore, December 13th } 1858. 
 
 MINISTRY OF FOREIGN RELATIONS OF PERU, ) 
 LIMA, December 22d, 1859. f 
 
 The undersigned, Minister of Foreign Relations of Peru, has the honor to address 
 His Excellency, the Envoy Extraordinary and Minister Plenipotentiary of the 
 United States, for the purpose of making known to him the ultimate and definite 
 resolution which the Government of Peru has taken respecting the demand made 
 by the American Minister for indemnification to the owners and outfitters of the 
 American ships Lizzie Thompson and Georgiana, which were seized by the Peru- 
 vian war-steamer Tamoes, whilst engaged in the illicit and forbidden guano traffic 
 at Punta de Lobos and Pabellon de Pica. 
 
 But before proceeding further, the undersigned considers it necessary to state to 
 His Excellency in a succinct manner, all the events which have occurred relative 
 to this affair, since the undersigned became charged with the Ministry of Foreign 
 15 
 
114 
 
 Affairs, on which occasion he appreciated, in all its importance, the grave question 
 arising out of the seizure of said ships. 
 
 His Excellency Mr. Clay should recollect that on the first official visit he made 
 to the undersigned, the llth last October, he expressed the desire that there should 
 be a prompt settlement of all matters pending between the United States Legation 
 and the Peruvian Ministry, especially that relative to the Lizzie Thompson and 
 Georgiana. His Excellency will also recollect that the undersigned was full of 
 the same desire, and disposed to terminate these negotiations in as friendly and 
 equitable a manner, as propriety and the interests of Peru would admit, while he 
 assured his Excellency Mr. Clay, that he would give his particular attention to such 
 matters as he might bring forward. 
 
 In fact, the undersigned examined the matter with great care, and justly scrutin- 
 ized the documents relating to this delicate question, well understanding that it was 
 indispensable to know the value of the captured ships and their appertenances, 
 without being understood that by favoring such a course, neither the undersigned 
 or his government recognized any right to present a claim, nor obligation to allow 
 the indemnity demanded. 
 
 The undersigned had the honor to thus express himself to His Excellency on the 
 occasion of his second visit, and to represent, furthermore, that the period of several 
 days would be necessary for the official appraisement of the appertenances belong- 
 ing to said vessels when they arrived in the port of Callao. 
 
 The day following the aforesaid visit, the undersigned remitted to the Com- 
 mandant-General of Marine, not only the inventories that had been made up by 
 the national authorities in the port of Callao, but also those delivered by the cap- 
 tains of the ships, all of which should have served to keep His Excellency informed 
 that due diligence had been practiced. 
 
 Whilst awaiting the completion of the appraisement, the undersigned, to his 
 surprise, received the official note from His Excellency the American Minister, in- 
 sisting, in a forcible manner, to know what determination the Peruvian Government 
 had adopted in relation to the matter ; also stating that it would be desirable to 
 have this reply before the sailing of the next semi-monthly steamer. 
 
 The undersigned cannot refrain, for the present purpose, to make to His Excel- 
 lency Mr. Clay, those just observations which appertain to the fact of his having 
 been conformable to the exercise of those previous exertions, and which were ne- 
 cessary for the greater enlightenment of Peru and the exigency that demanded 
 them. 
 
 The official notes under date of 2d and 4th of November, exchanged for this pur- 
 pose between His Excellency and the undersigned, contain the memoranda of 
 previous interviews, and proves the constant refusal of the undersigned to enter 
 into the merits of the question, or to promise anything respecting the same, until 
 the inventories which had been requested from the Comandante-General of the 
 Marine should be received. 
 
 These documents having been obtained, and at another interview between His 
 Excellency and the undersigned, the American Minister stated that he could not 
 enter into any discussion, as his instructions on this point, which were final, pro- 
 hibited him from doing so, the undersigned replied that Peru, being a sovereign 
 and independent nation, had the right to determine what course should be pursued 
 in order to arrive at a settlement of the question, and she could not and ought not 
 to admit the principle that all discussion was closed, for this principle is nothing 
 
115 
 
 more nor less than conceding to the Government of the United States unlimited 
 rights in the matter. 
 
 At subsequent interviews between His Excellency Mr. Clay, and the under- 
 signed, it was found impossible to devise any means by which the conclusion of 
 the pending negotiation could be facilitated, because the Government of Peru de- 
 fended its indisputable rights and the interests of its Treasury, and the American 
 Minister held himself confined to instructions he had received from his Government. 
 Furthermore, the information from the Commandante-General of Marine, and the 
 appraisement of the said ships, made under his order by the Captain Don Antonio 
 de la Haza, present a very notable difference from the valuation placed upon them 
 by their captains subsequent to the seizure. 
 
 At this stage of the affair, the undersigned suggested to His Excellency Mr. 
 Clay, that he should have an interview with the Vice-President of the Republic, 
 inasmuch as the grave importance of the question naturally called for the adoption 
 of every available means for the settlement of the affair in a proper and convenient 
 manner. 
 
 This conference was held the 7th of that same month, and the undersigned be- 
 lieves it useless to refer to this interview in the present note, for His Excellency 
 Mr. Clay well knows that the Vice-President of the Republic could offer nothing 
 more than to submit the question to an especial tribunal of the Council of Ministers 
 for a definite solution. 
 
 Long, deliberate, and prudent, was the discussion in this respectable body ; every 
 possible measure by which the rights of Peru could be reconciled with the relations 
 of friendship existing between her and the American Union was brought forward, 
 to be met only by obstacles to the satisfaction of these conflicting desires. A true 
 appreciation of the circumstances, arising from prudential counsels, had its due 
 weight in the discussion which took place. 
 
 The subject being exhausted, and after a laborious examination of all the docu- 
 ments presented, the council, with the approbation of the Vice-President, charged 
 with the executive power, declared a repetition of the refusal to comply with every 
 demand for indemnification that had been made upon the Government of Peru; 
 and that this refusal was based on those weighty reasons which had been brought 
 to the knowledge of the American Government by the resident Minister in Wash- 
 ington, Don Cipriano Coronel Zegarra, in his conference w^ith His Excellency Gen. 
 Cass, on the 14th of September last. Also, that none of the dangerous consequences 
 that may result, however sad they may be, can, in any manner, change the firm re- 
 solve of the Peruvian Government ; and finally, that the seizure of the vessels Lizzie 
 Thompson and Oeorgiana, the legal proceedings which took place before the Court 
 of Confiscation, the condemnatory sentence which fell upon them and the sale which 
 followed in consequence, are legal, unalterable, and do not in any manner compro- 
 mise the Government of Peru. 
 
 The undersigned believes it will be offensive to the well known intelligence of 
 His Excellency Mr. Clay, should he reproduce in this communication the abundant 
 and indestructible reasons which, pending the dilatory course of this question, have 
 been set forth by the Senor Zevallos, Minister of Foreign Relations, and in Wash- 
 ington by the diplomatic agents of Peru, the Senores Osma and Zegarra, The 
 undersigned also believes it will be offensive to the same intelligence of His Excel- 
 lency Mr. Clay, should he repeat in writing, the principles which were expressed 
 by him in conversation at their last conference ; but he cannot excuse himself from 
 calling the attention of His Excellency to certain events which have recently 
 
116 
 
 occurred, the simple mention of which will be sufficient to prove that the Govern- 
 ment of Peru, notwithstanding the conviction of the justice of its course, has 
 omitted no means to make the matter understood by the Government of the United 
 States, that every pretext for offence between the two countries might disappear, 
 and a friendly satisfactory result be attained. 
 
 The lengthy discussion which took place between Senor Zevallos and His Excel- 
 lency Mr. Clay, when the Lizzie Thompson and Georgiana were seized, unfortunately, 
 did not result in producing any satisfactory mode of settlement, and the Gov- 
 ernment of Peru had no misgivings in referring the matter to its diplomatic 
 agent in Washington, which, in effect, was done, thus giving a proof of confi- 
 dence in the rectitude of the United States. Not having obtained the end desired 
 by this course, and no other result than the evident determination of that same 
 government to render effective the claim for indemnification which could not be 
 qualified by any just or legal title, it proposed yet another mode of settlement, 
 acknowledged by all nations in similar cases, and even accepted under special cir- 
 cumstances by the Cabinet at Washington. The mode proposed was the arbitra- 
 tion of some respectable power like Great Britain, from whose impartial judgment 
 justice might be expected. With a feeling sufficiently profound, the Government 
 of Peru saw that the United States always refused to accept this honorable, neces- 
 sary, and lawful arbitration; and this feeling of regret was greatly increased, inas- 
 much as this refusal caused a strong suspicion that the Government of the United 
 States was not satisfied of the justice of its cause, fearing an adverse judgment in 
 the arbitration which had been proposed. Those friendly relations which Peru has 
 so carefully cultivated with the United States do not meet with merited recipro- 
 city, since Peru is refused that which, in a similar case, was conceded not long ago, 
 to another section of South America. 
 
 The Government of Peru went still further. It instructed its resident Minister 
 in Washington, Senor Zegarra, to ascertain whether the Government of the United 
 States would propose a proper arbitration which would evade the conflict which 
 this question might occasion, and which should dissipate the fear of Peru that she 
 has not that consideration which by right is her due as a friendly state, and that 
 the justice which has distinguished her proceedings in all those cases of reclamation 
 which have been presented for various causes heretofore, is not recognized. But, 
 sad to relate, General Cass only proposed an arbitration as difficult to be entertained, 
 as to concede the indemnity now demanded. It was proposed, in effect, to Senor 
 Zegarra that the affair would only be taken into consideration on the immediate 
 payment of the indemnity, said act of payment to appear as the voluntary act of 
 the Government of Peru ; thus, to evade the most important principle, and the 
 one which, more than all others, the Government of Peru desires and is bound to 
 preserve. This proposition compromises that principle, since the payment of the 
 indemnity is bound up in it. Such an act would seriously prejudice the interests 
 of the National Treasury, and hazard the circumspection and respectability of the 
 government to the greatest extent imaginable ; and which, without a stable system 
 of administration, without respect to laws which should be obeyed, and without 
 any consideration for its proper dignity, seizes contraband guano vessels, sumbits 
 them to the competent Court, disposes of them in obedience to the judgment of the 
 tribunals, and immediately, by an unusual mode, those mandates are destroyed, and 
 the violators of the law, who have been submitted to a legal and merited judgment, 
 are voluntarily recompensed with extravagant sums of money ! 
 
 From the manner, then, that Peru, on her part, has avoided no possible concilia- 
 
117 
 
 tory means for the defence of her rights, it appears that the United States, on their 
 part, have never failed to deny them. The lengthy discussion in this capital with 
 His Excellency Mr. Clay, the same discussion maintained in Washington with His 
 Excellency the Secretary of State ; the proposition to arbitrate denied ; a recon- 
 sideration of the affair, and extreme propositions made, beyond even what the dig- 
 nity of a government or the honor of a nation can permit, have only served to 
 cause such a repulse as is contained in the official note which His Excellency Mr. 
 Clay addressed to the undersigned on the 16th of the present month, the answer 
 to which assured His Excellency that the question would be resolved on the prin- 
 ciple upon which he had called it up. 
 
 In the adoption by the Council of Ministers of the definitive resolution, of which 
 mention has been made in another paragraph of this despatch, they had before 
 them also, all the arguments adduced in this discussion, and the undersigned repro- 
 duces them for the better enlightenment of Mr. Clay, and the vindication of the 
 rights of his country. 
 
 The vessels Lizzie Thompson and Georgiana, rendered themselves culpable not 
 only for a notorious violation of the neutrality they were bound to observe, but for 
 the infraction, already proved, of the fiscal regulations and laws, and of the coasting 
 trade of the republic, namely, loading guano in places where foreign vessels are 
 prohibited access. 
 
 This infraction of the national laws obliged the government to turn these vessels 
 over to the Court of Confiscation, that justice might follow in all legal ways. The 
 vessels were condemned to public judicial sale, the product of said sale to be appro- 
 priated to the captors, who are officials of the Peruvian War Marine. 
 
 The sentence of this competent tribunal once promulgated, the government has 
 no power to alter it. According to the Constitution of Peru, the government is 
 obliged, under a heavy responsibility, to comply and enforce compliance with judicial 
 judgments. 
 
 The Lizzie TJiompson and Georgiana facilitated the revolutionary party in obtain- 
 ing resources, with a knowledge of the risks to which they exposed the owners 
 and others interested in the vessels, for there had been circulated throughout the 
 republic, in anticipation, a law of Congress which declared that the government 
 would not be responsible for any injury or damage which those foreigners affording 
 aid to the said revolutionists, might suffer. This law of the 4th of January, 1857, 
 was amplified in order to obtain the co-operation of the Executive, and stating the 
 penalties to those persons charged with its infraction. 
 
 It having been already proved by the predecessors of the undersigned, and by 
 the diplomatic agents of Peru in the United States, that the Lizzie Thompson and 
 Georgiana merited the condemnatory sentence which was pronounced against them, 
 the undersigned may be permitted to add, that whatever might be the acuteness 
 and wisdom of the most celebrated jurist, the perfect right by which the said vessels 
 were seized, tried) and condemned, cannot be denied. So true is this, that the 
 Government of the United States and its enlightened representative in this capital 
 in demanding indemnification, have not been able to call in question the legality of 
 the judicial proceedings, and derive aid only from the assumption that at the time 
 of the appraisement, two governments existed in Peru a question which has been 
 much discussed, and which it is unnecessary to renew. 
 
 The undersigned will conclude this communication, expressing to His Excellency 
 Mr. Clay, that the Government of Peru believes that the Government of the United 
 States, appreciating the principal facts, will relinquish its demand for indemnifica- 
 
118 
 
 tion, and that it will recognize the great efforts which the government subscribed 
 hereto has made ; that this question might not come to that extreme which could 
 produce any prejudicial disagreement between Peru and the United States. But 
 in any event, if unfortunately these hopes are vain, the Government of Peru will 
 comply with its sacred obligations to protect the national honor, making manifest 
 the rights and the justice by which she is sustained, that she may be duly appre- 
 ciated by all the civilized nations of the earth, when they come to judge of the 
 moderation she has exercised to the present time, as they will have to judge of her 
 determination if, unexpectedly, the conflict should come which, at every cost, she 
 has endeavored to avoid. 
 
 The undersigned reiterates to His Excellency Mr. Clay, sentiments of respect and 
 consideration. 
 
 (Signed) MIGUEL DEL CARPIO. 
 
 To His Excellency the Envoy Extraordinary and Minister Plenipotentiary of the 
 
 United States. 
 
 LEGATION OF THE UNITED STATES, ? 
 LIMA, Dec. 23d, 1859. J 
 
 The undersigned, Envoy Extraordinary and Minister Plenipotentiary of the United 
 States of America, has had the honor of receiving the official note which His Ex- 
 cellency the Minister of Foreign Relations has been pleased to address to him, under 
 date of the 22d of the present month, for the purpose of communicating the definite and 
 final resolution which has been taken by the Government of Peru, not to admit the re- 
 clamations which have been presented in favor of the owners and other parties interested 
 in the ships Lizzie Thompson and Georgiana, and refusing all indemnity for the capture 
 and condemnation of the said vessels. 
 
 Before proceeding, the undersigned may be permitted to correct a mistake which His 
 Excellency has made in the resume of the conversations held during the interviews that 
 have taken place with reference to the said cases. His Excellency says, that "after hav- 
 ing obtained said documents (the inventories, &c. from the Commandant-General of 
 Marine), and in another interview of the undersigned (His Excellency) with Mr. Clay, the 
 latter declared that he could not enter into any discussion whatever, because his instruc- 
 tions were positive, and prohibited it." 
 
 Taking this at the same time with the declaration made by His Excellency in the pre- 
 vious conference, that His Excellency could not enter upon the discussion of the question 
 itself until some light was thrown upon the value of the vessels seized, and the property 
 found on board of them, it would appear as if the undersigned had declined all negotia- 
 tion, even with reference to the value of the vessels and property, and the amount that 
 should be payable to the owners and other parties interested, as indemnification for their 
 seizure and the losses that may have resulted therefrom. If such was the impression 
 that the observations made by the undersigned left upon the mind of His Excellency, it 
 was erroneous. 
 
 "What the undersigned observed to His Excellency in the first conference, and what he 
 repeated in the subsequent interviews, was that he considered "all discussion, so far as 
 regards the principles involved in the cases, and the rights of those who claimed indem- 
 nification, as terminated." 
 
 But that he was ready, in case the reclamations were admitted by the Government of 
 Peru, to enter into a discussion with His Excellency upon the examen of the inventories 
 and other documents, and to make whatever reduction should be just and proper in the 
 Bums claimed." 
 
119 
 
 It is true that the undersigned did not wish to open a discussion upon the questions of 
 right and of justice involved in these cases; but he said that he was ready to commence 
 an examination of the documents, with a view of arriving at a satisfactory arrangement 
 as to the sum that should be payable by the Government of Peru. 
 
 Referring to the note of His Excellency, the undersigned confesses that the positive 
 refusal of the Government of Peru to enter into an arrangement of these reclamations, 
 and to indemnify the aggrieved owners of the vessels for their losses in consequence of 
 their capture and illegal condemnation, has surprised him somewhat ; for, considering 
 the assurances that His Excellency had given him in the various interviews that had taken 
 place, the same as His Excellency the Vice-President charged with the executive power 
 of the Republic on the 7th of the present month, of his desire that these reclamations 
 should be amicably arranged, the undersigned had been led to indulge" himself in the 
 hope that the Government of Peru would accept its responsibility, and in this manner a 
 question so disagreeable would soon be terminated. These assurances, however, were 
 not in keeping with the declaration that the Resident Minister of Peru, Don Cipriano C. 
 Zegarra, has announced as having made to the Secretary of State of the United States > 
 in a conference which took place in Washington on the 14th of September last past, and 
 of which, if it realty took place, His Excellency must have known when making such as- 
 surances to the undersigned. 
 
 His Excellency the Minister of Foreign Relations informs the undersigned that the 
 Government of Peru has adopted this declaration, after a solemn consultation between 
 His Excellency the Vice-President and the Council of Ministers, and that it is in effect 
 that the Government of Peru disregards all demands for indemnification in the aforesaid 
 cases; and that none of the hazardous consequences that may result, however lamenta- 
 ble they may be, will induce the Government of Peru to change its firm resolution ; 
 and finally, that the seizure of the Lizzie Thompson and Georgiana, the proceedings 
 against said vessels before the Judge of Confiscation, the decision and condemnation pro- 
 nounced against thorn, and their sale, which took place in consequence, are It-gal, unal- 
 terable, and do not compromise in any manner the Government of Peru. 
 
 Such, then, is the final and definitive resolution of the Peruvian Government upon 
 the demand for the adjustment of the cases alluded to, as communicated officially to the 
 undersigned by His Excellency the Minister of Foreign Relations of Peru. 
 
 This reply is so positive and explicit in its language that the undersigned does not 
 judge it necessary to reply to the other observations contained in the note of His Excel- 
 lency of the 22d, with reference to the capture and condemnation of the vessels, and the 
 notes exchanged between those who have preceded His Excellency in the Ministry, and 
 the undersigned, and between the Secretary of State and the diplomatic agents of Peru 
 in Washington. 
 
 It only remains, therefore, for the undersigned to communicate to the Secretary of 
 State the note of His Excellency, and the resolution of the Government of Peru. Ttis 
 he will do by the packet of the 27th of the present month, and will await new instruc- 
 tions from the Government of the United States. He does this with regret, for he is 
 persuaded that this refusal on the part of Peru will greatly affect the harmony and 
 amicable relations between both republics, which, as well the undersigned as his gov- 
 ernment, have always desired to preserve and to promote. 
 
 The undersigned will not venture to say what may be the measures that the Govern- 
 ment of the United States may determine to take under these circumstances ; but it is 
 certain that it will not temporalize nor vacilatc in the prosecution of these reclamations 
 to an equitable, prompt, and complete settlement. His government has a clear idea of 
 what is just, and has always been guided by justice in its international relations ; but in 
 all that relates to its rights abroad, it knows what is due to its citizens, and it will extend 
 to them ample protection whenever they may have suffered an evident injustice in their 
 persons or interests. 
 
120 
 
 With this note, the undersigned closes, for the present, his correspondence \vith His 
 Excellency the Minister of Foreign Relations, in so far as regards the cases of the 
 before-mentioned vessels. 
 
 The undersigned, in all the phases of the negotiation, has made the greatest efforts to 
 carry the reclamations to a satisfactory and amicable solution, and most sincerely deplores 
 that his efforts have been thus far unsuccessful. 
 
 In conclusion, the undersigned has the honor of notifying His Excellency, that the 
 United States will consider Peru as responsible for -whatever other damages may result 
 to the parties interested, from this refusal to indemnify them for the seizure and con- 
 demnation of their vessels, and for all the consequences that may result from this resolu- 
 tion of the Government of Peru. 
 
 The undersigned avails himself of this occasion to offer to His Excellency the Minister 
 of Foreign Relations, the assurances of his distinguished consideration. 
 
 J. RANDOLPH CLAY. 
 To His Excellency Seuor Dr. D. MIGUEL DEL CARIMO, 
 
 Minister of Foreign Relations of Peru, etc., etc. 
 
 LEGATION OF THE UMTED STATES, 
 LIMA, June 6th, I860. 
 
 In the interview that took place yesterday, the undersigned, Envoy Extraordinary and 
 Minister Plenipotentiary of the United States of America, had the honor of expressing to 
 His Excellency the Minister of Foreign Relations of Peru, the sincere regret with which 
 the Government of the United States had seen that all its efforts, and those of the 
 undersigned as its representative, to arrive at a rational and mutually equitable arrange- 
 ment of the difficulties -which have arisen with regard to the capture and confiscation of 
 the ship Lizzie Thompson and the bark Georyiana, have been frustrated ; and finally, 
 that the Government of Peru insisted in- the determination not to indemnify the owners 
 and other parties interested for the damages and loss they have suffered by reaeon of 
 such seizure. The undersigned further informs His Excellency that this determination 
 of the Peruvian Government must be considered as a lack of friendly feeling towards the 
 United States, and will become incompatible with the continuance of those cordial re- 
 lations which it had always been desired to carefully cultivate, but that have not been 
 correspondingly met with equal good feeling on the part of the Government of Peru. 
 
 Considering, on the other hand, that a further discussion of questions that have al- 
 ready been exhausted by both parties, would be inefficacious, and would only result in 
 still greater asperity, if not really in mutual exasperation, the Government of the United 
 States has forwarded instructions to the undersigned to submit the following propositions 
 to the Peruvian Government, with the view^ if it be possible, of arriving at a definite 
 arrangement of these questions: 
 
 1. Will the Government of Peru reconsider the decision announced in the note ad- 
 dressed by His Excellency the Minister of Foreign Relations, to the undersigned, on the 
 22d of December, 1859 ; will it, in specific terms, recognize its responsibility for the 
 seizure and confiscation of the ship Lizzie Thompson and bark Georgia-no, zind its willing- 
 ness to enter into and abide by an equitable arrangement of damages and loss suffered by 
 the owners, captains, and crews of said vessels? 
 
 2. Will the Peruvian Government, assenting to the previous proposition, enter into a con- 
 vention for the appointment of a mixed commission that shall not only decide the amount 
 of the indemnification that may justly result from the seizure and confiscation of the afore- 
 said vessels, but also will investigate and adjudicate whatever other reclamations of the 
 
121 
 
 citizens of the two republics respectively against the other, may be now pending be- 
 tween the two Governments ? 
 
 The Government of the United States presents these propositions, animated by the 
 friendly spirit which has always characterized its relations with Peru, and in submitting 
 them, the undersigned has the confident hope that they will be accepted and approved 
 by the Peruvian Government, and that they will conduce to a satisfactory arrangement 
 of the before-mentioned questions. 
 
 The undersigned avails himself of this occasion to reiterate to His Excellency the 
 Minister of Foreign Relations, the assurances of his most distinguished consideration. 
 
 J. RANDOLPH CLAY. 
 To His Excellency Senor Dr. D. MIGUEL DEL CARPIO, 
 
 Minister of Foreign Relations of Peru, &c., &c. 
 
 MINISTRY OF FOREIGN RELATIONS OF PJZRU, ) 
 LIMA, Sept. 28, 1860. f 
 
 The undersigned, Minister of Foreign Relations of Peru, has had the honor of receiv- 
 ing the appreciable official dispatch which His Excellency the Envoy Extraordinary and 
 Minister Plenipotentiary of the United States has been pleased to direct to him, under 
 date of June 5, last, with the object of communicating to him that he had received in- 
 structions from the Government of the United States to submit to that of Peru the fol- 
 lowing propositions : 
 
 Will the Government of Peru reconsider the decision announced in the note that its 
 Minister of Foreign Relations addressed to Mr. Clay on the 22d of December, 1859 ? Will 
 it in specific terms recognize its responsibility for the seizure and confiscation of the ship 
 Lizzie Thompson and the bark Georgiana, and its disposition to enter upon and adhere 
 to an equitable arrangement of the loss and damages that have been suffered by the 
 owners, captains and, crews of said vessels ? 
 
 Will the Peruvian Government assent to the foregoing proposition, and enter into a 
 convention for the organization of a mixed commission that shall decide not only the 
 amount of the indemnity that shall justly result from the seizure and confiscation of 
 these vessels, but that will also investigate and decide whatever other reclamations of 
 the two republics respectively that are now pending between the two governments ? 
 
 Before transmitting to His Excellency Mr. Clay the resolution that, with regard to 
 the foregoing two propositions, has been taken by the Government of Peru, the under- 
 signed believes it necessary to state in this dispatch the causes which have delayed until 
 to-day the answer asked for by His Excellency, and to make also a slight record of the 
 two conferences which, at the solicitation of Mr. Clay, and with great pleasure to the 
 undersigned, took place between His Excellency the President, the undersigned, and Mr. 
 Clay, with regard to this grave and delicate question. 
 
 With reference to the first, His Excellency Mr. Clay is aware of the painful occur- 
 rence which obliged His Excellency the Grand Marshal Castilla to deliver the supreme 
 command of the Republic to the Council of Ministers, in order to attend to his health, 
 affected by the horrible attack upon his person committed by a treacherous assassin, on 
 the 2oth of July, and which has prevented His Excellency from entering again upon the 
 dispatch of public business until the 1st of the present month ; and as His Excellency 
 the Envoy Extraordinary and Minister Plenipotentiary of the United States had already 
 solicited and obtained from His Excellency the President an interview, in which took 
 place the first of the conferences referred to, the Council of Ministers could not occupy 
 themselves with a matter thus voluntarily submitted by His Excellency Mr. Clay to dis- 
 cussion with His Excellency the President. 
 
 16 
 
122 
 
 It is with pleasure that the undersigned refers in this communication to the full and 
 ample explications 'which, with his accustomed loyalty, were made by His Excel- 
 lency the President to Mr. Clay, in the conferences which took place the 23d 
 of July and to-day ; explications that without doubt must have convinced the worthy 
 representative of the United States, that if the Government of Peru abounds in 
 friendly sentiments towards that of the United States, and has not omitted any means 
 whatever of proving the interest it feels, that the relations of friendship which the two 
 countries are called upon to cultivate, may be strengthened and made permanent; it is 
 not possible for it, however extensive and sincere may be these sentiments, to violate the 
 sacred duties which it owes to the Nation, which has confided its destinies to its keeping, 
 to the laws of the country, which must be strictly observed, and to the national honor, 
 which must be respected, whatever may be the sacrifice that this may impose. 
 
 In fact, these vessels, the Lizzie Thompson and Georgiana, having been submitted to 
 a legal proceeding, judged by a competent tribunal in conformity with the laws of the 
 country, and condemned after all the proceedings prescribed by the laws of Peru had 
 been observed, the government, complying with the political constitution of the Re- 
 public, far from having power to alter the decision of condemnation, is obliged to cause 
 it to be complied with and respected, for reasons which have been fully and carefully set 
 forth during the discussion kept up for two years. 
 
 But, if on the one hand this proceeding of the government of the undersigned ought 
 to be considered as just by the Government of the United States, that government has 
 seen, on the other, that that of Peru, in a spirit of equity, has never refused to submit 
 the question to the arbitration of a respectable power, whose decision it has been willing, 
 as it is now willing, to comply with in all its parts. 
 
 It is not to be expected, from the rectitude and reputation of the Cabinet of Washing- 
 ton, that it will insist, when there still remains a conciliatory means, used by all nations, 
 that the Government of Peru shall break the laws of its country, be wanting in that re- 
 spect and veneration which in all civilized countries guards the independence of the 
 judicial power, and that the same Cabinet of Washington will carry a question which 
 does not affect the general interests of the republic to the extreme of producing a con- 
 flict which may be decorously avoided by simply accepting the arbitration proposed. 
 
 In order not to extend this communication to too great length, the undersigned, in 
 referring to the reasons alleged in the last conference, and which His Excellency Mr. 
 Clay will recollect, will limit himself to repeating in writing the assurances which were 
 verbally made to him by His Excellency the President, that although he could not alter 
 in the least the judgment pronounced against the Lizzie Thompson and the Georgiana, 
 he was ready, notwithstanding, to admit, in a spirit of friendship and harmony, the arbi- 
 tration of such nation as might be selected by the Government of the United States, or 
 even by that of Great Britain, and to abide by the decision that might be made, what- 
 ever it might be. 
 
 With respect to the second proposition, the Government of Peru, disposed always to 
 do justice to foreigners as well as to natives, will, with pleasure, submit to a mixed 
 commission, all the reclamations now pending on the part of North American citizens 
 against Peru, and of Peruvian citizens against the United States. 
 
 This commission might be composed of two commissioners named respectively by 
 each government, and whose decision shall be without appeal, the commissioners selecting 
 a third to adjust such difference as may occur ; and hearing two advocates equally named 
 by the two governments, who shall serve as attorneys for the defence of the rights that 
 may be involved. 
 
 The commission, before proceeding, shall classify the reclamations, to the end that 
 those pertaining to the judicial power may be remitted to the tribunal to which they 
 correspond, that they may there be resolved, if the parties interested do not agree to 
 refrain from the judicial action, and submit to the decision of the mixed commission. 
 
123 
 
 By this means the government of the undersigned believes that- the demands of the 
 Government of the United States may be amicably and honorably reconciled with the 
 rights and justice of Peru ; hoping, not without foundation, that the propositions pre- 
 sented by His Excellency Mr. Clay, accepted in these terms, will be the means of ter- 
 minating the pending questions, and of avoiding complications that the government of 
 Peru, in its desire to preserve the best relations with friendly States, does not fear to 
 submit to the decision of the enlightened Cabinet of Washington, with equal confidence 
 as to its own. 
 
 The undersigned reiterates to His Excellency Mr. Clay the sentiments of his distin- 
 guished consideration. 
 
 (Signed) JOSE FABIO MELGAR. 
 
 To His Excellency the Envoy Extraordinary and 
 
 Minister Plenipotentiary of the United States. 
 
 LEGATION OF THE UNITED STATES, ) 
 LIMA, Oct. 2d, 1860. f 
 
 The undersigned, Envoy Extraordinary and Minister Plenipotentiary of the United 
 States of America, had the honor of receiving, on the 29th, the note of His Excellency 
 the Minister of Foreign Relations of Peru, dated the 28th of last month, and transmitting 
 the resolution taken by the Peruvian Government relative to the two propositions pre- 
 sented by the undersigned in his note of the 5th of June last. 
 
 With reference to the first of these propositions that the Government of Peru should 
 recognize its responsibility for the capture and condemnation of the ship Lizzie Thomp- 
 son and the bark Georgiana, and should agree to an equitable valuation of the losses and 
 prejudices suffered by the owners, masters, and crews of said vessels His Excellency 
 informs the undersigned that, notwithstanding the Peruvian Government and His Ex 
 cellency the President of the Republic entertain the most sincere feelings of friendship 
 towards the United States, and that they have not omitted any means of manifesting 
 their desire that the relations of friendship should be permanent between the two 
 countries ; it is not possible to transgress those sacred duties which the government has 
 to fulfil towards the nation that has confided to it its destinies, that it must comply 
 strictly with the laws of the country, and that it must cause the national honor to be 
 respected, whatever the sacrifice may be that this may exact. 
 
 His Excellency the Minister of Foreign Relations continues afterwards, affirming de 
 novo, that the two vessels were submitted to a legal trial, before a competent tribunal, 
 in conformity with the laws of the country, and condemned after all the forms and pro- 
 ceedings had been observed that are prescribed by the laws of Peru ; that the govern- 
 ment, under the political constitution of the country, far from having the power to change 
 this sentence of condemnation, is obliged to respect and to comply with it, for reasons 
 which had been explained fully and in detail in the two conferences which took place 
 between His Excellency the President of the Republic, and the undersigned. 
 
 And His Excellency the Minister of Foreign Relations reiterates the offer made by His 
 Excellency the President, that notwithstanding that His Excellency could not alter in 
 the least the judgment pronounced against the Lizzie Thompson and the Georgians, he 
 was still ready, however, in a spirit of friendship and good understanding, to enter into 
 a convention for an arbitration by such nation as might be selected by the United 
 States, or by Great Britain, giving his assent to whatever decision might be adopted by 
 such nation. 
 
 From the commencement of the agitation of this question of capture of the two ves- 
 sels, although the undersigned and his government have considered that they were il- 
 
124 
 
 legally captured, and that, as a consequence, the proceedings against them were equally 
 illegal, the undersigned has not omitted any effort, and has employed all the arguments 
 that he could devise, in order to arrive at a satisfactory adjustment of this business. 
 
 He experiences, therefore, the most profound regret that the Government of Peru has 
 resolved to refuse the first proposition, and that it will not admit its responsibility in 
 the premises ; and his regret is the greater because he cannot accept the alternative pro- 
 posed by His Excellency the President of the Republic, of submitting the cases of the 
 Lizzie Thompson and the Georgiana to the arbitration of Great Britain or of any other 
 friendly power. 
 
 The same proposition of arbitration was made to the Secretary of State by Mr. Osma, 
 Minister Resident of Peru, and was repeated by Mr. Zegarra, accredited in the same 
 capacity to Washington, and was formally refused by the Government of the United 
 States ; consequently it is impossible for the undersigned to accept it, and therefore, so 
 far from the Government of Peru offering any satisfactory arrangement, a rupture in the 
 diplomatic relations between the two countries is inevitable. 
 
 The undersigned, animated by the most vehement desire to prevent such an extremity, 
 had the honor of submitting to His Excellency the President of the Republic, in the con- 
 ference which took place on the 28th of last month, the following proposition, substitut- 
 ing it for the two propositions before mentioned, and to serve as the basis of a conven- 
 tion between the two republics to wit: 
 
 " That Peru (that is to say its Government) will deliver to the United States an adequate 
 sum (una sumo, considerable) as full liquidation for all of the reclamations, actually pend- 
 ing before it, of citizens of the United States the amount of said sum to be determined 
 and fixed by a mixed commission that shall be nominated and organized by the respect- 
 ive governments, which commission shall also investigate and adjucate the reclamations of 
 citizens of Peru now actually pending before the United States." 
 
 This proposition, in the judgment of the undersigned, is both just and equitable, and 
 in submitting it to the Peruvian Government the undersigned has the honor to inform 
 His Excellency the Minister of Foreign Relations that he will await until 6 o'clock of 
 the afternoon of Saturday next, the 6th instant, a categorical reply. 
 
 If none of these propositions are accepted within this time, the undersigned will be 
 compelled to ask his passports, and suspend diplomatic relations between the two re- 
 publics. 
 
 But the undersigned still entertains the hope that the Government of Peru will not 
 place him in the necessity of taking this step, not only on acconnt of the injuries that 
 will result from the same to the national interests of the two countries, but also from the 
 moral effect that will be produced by its future consequences, because the amicable rela- 
 tions now existing, once interrupted, it will be ditficult to reestablish them upon the 
 same footing of intimacy and cordiality. 
 
 The undersigned has the honor, in this conjuncture, of offering to His Excellency the 
 Minister of Foreign Relations, the renewed assurances of his most distinguished con- 
 sideration. 
 
 J. RANDOLPH CLAY. 
 To His Excellency D. JOSE FABIO MELGAE, 
 
 Minister of Foreign Relations of Peru. 
 
125 
 
 MINISTRY OF FOREIGN RELATIONS OF PERU, ) 
 LIMA, Oct. 6th, I860. j" 
 
 The undersigned, Minister of Foreign Relations of Peru, has the honor of replying to 
 the official dispatch which, under the date of the 2d instant, His Excellency the Envoy 
 Extraordinary and Minister Plenipotentiary of the United States has been pleased to 
 direct him, " for the purpose of informing the Government of the Republic that if within 
 the term of six days it shall not declare that it is willing to pay a specific sum (una swna 
 considerable) in settlement of all the reclamations of the United States, His Excellency 
 Mr. Clay will be compelled to ask his passports, and to suspend diplomatic relations be- 
 tween the two republics." 
 
 The regret of the undersigned is not less than that expressed by Mr. Clay, at the adop. 
 tion of this extreme measure, very foreign, in truth, to those relations of friendship and 
 good understanding which, up to the present time, have existed between Peru and the 
 United States, and this feeling is augmented by the reflection that the enlightened Gov- 
 ernment represented by Mr. Clay has refused, without any plausible reason, the arbitra- 
 tion that solely, in a spirit of equity, and for the furtherance of good relations, was pro- 
 posed by the Government of Peru, in the confidence that the Government of the United 
 States would accept, in this instance, the same means they had recently adopted in a 
 similar case with another of the South American States. 
 
 Before making the intimation contained in the dispatch of His Excellency Mr. Clay, 
 referred to, it should have been requisite that all the conciliatory measures should have 
 been exhausted which, in international law, and in the practice of civilized nations, are 
 known and used to prevent the conflicts and the great injuries that always attend the 
 interruption of diplomatic relations between two countries. 
 
 If the judgment which the government of the United States has formed with refer- 
 ence to the capture of the ships Lizzie Thompson and Cfeorgiana, is contrary to that 
 which with reference to this act has been formed not only by the Government of Peru, 
 but also by its tribunals of justice, and which has merited also the respectable confirma- 
 tion of the enlightened Government of France and of the prudent Cabinet of Chili ; if 
 a discussion sustained for two years in order to discover on which side is justice, has 
 not produced any result towards terminating this unfortunate difference ; if, in fine, 
 neither the Government of Peru nor that of the United States can by themselves reach 
 a satisfactory solution, why should they yet resort to unfriendly measures when there 
 still remains a means of a pacific character that is admitted and is frequently employed 
 for the desirable purpose of preventing conflicts between two countries ? 
 
 Why should such a means be selected in a case which has its origin neither in offences 
 against the national honor nor in an attack upon great public interests, but simply and 
 exclusively in the private interests of a few individuals ? 
 
 So decisive and peremptory is the intimation that His Excellency Mr. Clay has made 
 to the Government of Peru, that the undersigned would have abstained from making the 
 foregoing observations, if it were not proper, as it really is, to manifest again the concil- 
 iatory spirit which, even in the present extreme case, distinguishes the proceedings of 
 the Peruvian Government, and if it were not necessary that from this time forward it 
 should be made known upon whose side will rest the responsibility and upon whom will 
 fall the consequences that may supervene. 
 
 His Excellency Mr. Clay says that he still entertains the hope that on receiving his 
 intimation the Government of Peru will recognize its responsibility for the capture of 
 the ships Lizzie Thompson and Georgiana, and its duty to indemnify the parties inter^ 
 ested in them. 
 
 The Government of Peru, in declaring, as it now declares, that it will only admit, in the 
 present case, the decision that may result from, the arbitration which it has proposed, 
 entertains also the hope that the Government of the United States will reconsider this 
 question, and will be disposed to submit it to the arbitration that has been named. 
 
126 
 
 The undersigned will not conclude this communication without expressing the surprise 
 that has been occasioned to the Government of Peru by the contents of the dispatch of 
 His Excellency Mr. Clay, when three days before he had heard the reasons which were 
 verbally stated to him by His Excellency the President of the Republic, in order to 
 show why he refused to indemnify the owners and outfitters of the Lizzie Thompson and 
 the Georgiana, but was disposed to submit, notwithstanding, to arbitration ; and also to 
 convince His Excellency Mr. Clay, of the sentiments of entire friendship which the 
 President of Peru entertained towards the Government and people of the United States. 
 So far, therefore, was the undersigned from anticipating the intimation that has been 
 made by His Excellency Mr. Clay, that he had conceived the pleasant hope that this 
 question was about to be satisfactorily arranged, and the more when Mr. Clay entered 
 even into the details of the organization of the mixed commission which should be occu- 
 pied with the classification and arrangement of the reclamations of the citizens of North 
 America against Peru, and of citizens of this Republic against the United States thus 
 leaving it to be understood that, convinced by the reasoning of the President, he would 
 at least submit to the further consideration of his government the proposition which the 
 undersigned presented in the dispatch which he addressed to His Excellency under date 
 of the 28th ultimo. 
 
 Unfortunately this hope now disappears with the determination indicated by His 
 Excellency Mr. Clay, and which is all the more painful to the Government of Peru, be- 
 cause it will be the means of producing the absence from the country of a functionary 
 who has received so many and so abundant proofs of the esteem and honor in which he 
 is held, not only by the President and his cabinet, but by society at large. 
 
 It only remains for me to say to Mr. Clay, in order that he might repeat the same to 
 his government, that as His Excellency will readily understand, this unfortunate suspen- 
 sion of the functions of the American Legation will not change, on the part of Peru, the 
 good position of the commerce and of the citizens of the Union, agreeably with Article 2 
 of the Treaty of the 26th of July, 1851, and that the Peruvian Government will always 
 be disposed to renew, on the most friendly conditions, the diplomatic relations which Mr. 
 Clay has been pleased to suspend. 
 
 However, before Mr. Clay carries ^into effect the act of demanding his passports, he 
 will consider that of the propositions which he has transmitted to the government of the 
 undersigned, that which will put an end to all reclamations of American citizens has 
 been admitted, and that the Peruvian Government desires to submit to arbitration only 
 that proposal relative to the vessels Lizzie Thompson and Georgiana, in which act there 
 is no refusal, but rather a setting aside to a certain extent of the right of the govern- 
 ment to sustain the decisions of the judicial power. The entire demand, then, of the 
 government of His Excellency Mr. Clay, is not refused, and in the only point not admit- 
 ted a not insignificant sacrifice of the rights of Peru is included. If, therefore, Mr. Clay 
 will be pleased to consider all this, together with all that previous led to the strong 
 hope that he would consult his government regarding the contents of the last communi- 
 cation from the undersigned, it is possible, and the Peruvian Government would be very 
 glad of the same, that he may desist from carrying out his intention to retire, and may 
 adopt the above-named consultation. By such means Mr. Clay would be able to avoid 
 the pernicious consequences which a rupture, how momentary soever, of the relations 
 now existing with Peru, would undoubtedly produce to the commerce of the Union. 
 
 The undersigned repeats to His Excellency Mr. Clay, the sentiments of his distin- 
 guished consideration. 
 
 JOSE FABIO MELGAR. 
 To His Excellency the Minister Plenipotentiary and 
 
 Envoy Extraordinary of the United States. 
 
127 
 
 LEGATION OF THE UNITED STATES, ) 
 
 LIMA, October 9th, 1860. 
 The undersigned received, on the afternoon of Saturday, the 6th instant, the commu- 
 nication of His Excellency the Minister of Foreign Affairs of Peru, addressed to him in 
 reply to his note of the 2d of this month, and can only deplore that the persistent deter- 
 mination of the Peruvian Government in not admitting its responsibility for the capture 
 and confiscation of the Lizzie Thompson and Georgiana compels the undersigned to carry 
 into effect the instructions of his government, the terms of -which are so imperative as to 
 leave the undersigned no alternative but to ask for his passports. 
 
 The undersigned so informed His Excellency's predecessor in the Ministry (Seiior 
 Carpio) when he addressed to him the note of the 5th June last, and he has in subse- 
 quent interviews repeatedly declared to His Excellency Senor Mel gar, that diplomatic 
 relations between the two governments would be suspended, if the Government of Peru 
 refused to admit the first proposition set forth in that note, or refused to enter upon 
 some other understanding similar thereto, for the indemnification of the parties inte- 
 rested in the two vessels. 
 
 So also in respect to the proposal for the submission of the matter concerning the ves- 
 sels to the arbitration of a third Power, which proposition Peru has so urgently de- 
 manded, His Excellency must be perfectly convinced, as well by the verbal and written 
 communication from the undersigned, as also probably by information received from the 
 Peruvian Legation at "Washington, that the Government of the United States has invari- 
 ably rejected the proposal, in virtue of the principles incontrovertibly established at that 
 time, and which are herein referred to : and that accordingly the undersigned has no 
 option whatever in the matter. Besides, the undersigned informed His Excellency the 
 President of Peru, at the first conference which he had the honor of holding with him on 
 the subject of these claims, what those principles were. 
 
 Consequently, as the Government of Peru was informed of the above-mentioned facts, 
 and as the undersigned assured His Excellency the President, in the conference of the 
 28th ult., that he had been instructed to wait five days for a categorical answer to the 
 propositions submitted by him on the 5th of June last, which notification he omitted in 
 note of that date, at the suggestion of Senor Carpio, whose observations led him to hope 
 that the Peruvian Government would admit the first proposition, at least in a modified 
 form, the undersigned stated at the same time to His Excellency, that he had received 
 later orders from his government to suspend diplomatic relations with that of Peru, in 
 the event of its not acceding to the said proposal. And this latter having occurred, the 
 undersigned, finally, cannot understand how the contents of his note dated the 2d instant, 
 can have caused " surprise " to the Government of Peru. 
 
 It is true that after having heard with respectful attention the reasons adduced by His 
 Excellency the President, for not indemnifying the owners of, and others interested in the 
 vessels, for desiring an arbitration, and for giving assurance of the friendly sentiments of 
 His Excellency for the Government and people of the United States, and after His Excel- 
 lency the Minister for Foreign Affairs had received instructions to reply to the said note 
 of the 5th June, the undersigned made some observations explanatory of the character of 
 a mixed commission for the settlement of claims similar to that which was arranged by 
 a convention concluded between the United States and Great Britain on the 8th Febru- 
 ary, 1853. 
 
 But these observations of the undersigned were simply explanatory, and referred par- 
 ticularly to the other claims of citizens of both republics, pending before the respective 
 governments. 
 
 And in regard to the note which the Minister of Foreign Afiairs was directed to ad- 
 dress to the undersigned in reply to that of the 5th June, the undersigned could do no 
 less, on the ground of consideration for the Government of Peru, and respect for the com, 
 
128 
 
 munication of the Peruvian Cabinet, than offer to give it his best attention, and to reflect 
 on its contents. 
 
 The observations, therefore, of the undersigned, were not intended to inspire the idea 
 that the proposal for arbitration would be transmitted for the reconsideration of his 
 government. 
 
 The undersigned does not deem it necessary to reply particularly to the observations 
 contained in the note of His Excellency, since, as it is evident, the Peruvian Government 
 has resolved not to reconsider the decision announced in the note of the Minister for 
 Foreign Affairs, under date of the 22d of December, 1859, nor to proceed to any 
 other arrangement in the case of the two vessels illegally captured and confiscated by 
 said government, but only to the proposal for an arbitration by a third Power. 
 
 Consequently, as the undersigned is not authorized to admit this proposal, and as the 
 Peruvian Government rejects not only the two propositions set forth in the note of the 5th 
 of June, to which reference has already been made, but also the contents of the note of 
 the undersigned under date of the 2d inst., that the Government of Peru should propose 
 itself to deliver a certain sum in liquidation of all the claims of the United States citizens 
 now pending, (a proposition which His Excellency the Minister for Foreign Affairs was 
 the first to suggest to the undersigned, and which he therefore confidently hoped would 
 be admitted,) there is no alternative left to the undersigned but to request that His 
 Excellency should be pleased to furnish him with the necessary passports for himself and 
 the other members of this Legation. 
 
 The undersigned will not conclude this communication without calling His Excel- 
 lency's attention to the fact that, when His Excellency declared, in his note of the 28th 
 of last month, and in the course of various interviews with the undersigned, that the 
 Peruvian Government has not the power to reverse the judgment of condemnation pro- 
 nounced against the vessels, but is obliged to execute it, the same government, by the 
 treaty of the 17th of March, 1841, agreed to indemnify, and did subsequently compensate 
 the owners and others interested in the Esth-r, of Boston, and her cargo, and those inter- 
 ested in the Gen. Brown, of New York, and her cargo, which vessels had been illegally 
 condemned and confiscated in Peru. 
 
 The treaty of March, 1841, was modified during the first administration of His Excel- 
 lency, the Grand Marshal Castilla ; and if the Peruvian Government then possessed the 
 power of entering into stipulation for indemnifying the parties interested in the Esther 
 and Gen. Brown, it is clear that the government likewise possess the same faculty for 
 indemnifying the parties interested in the Lizzie Thompson and Georgiana, since the same 
 independence of the judicial power existed at that time in Peru, just as it does now 
 under the constitution, and especially seeing that the power of making and concluding 
 treaties is one of the most important attributes of the Executive of a Republic, and the 
 demonstration of which power is not restricted in respect to the present case. It is, 
 therefore, evident that it is not a want of sufficient power under the constitution, which 
 induces the Government of Peru to reject the bases of the convention proposed by the 
 United States for the friendly and equitable settlement of the claims of their respective 
 citizens. 
 
 The Government of Peru, persisting in refusing reparation for the illegal capture and 
 confiscation of the Lizzie Thompson and Georgiana, has caused the cessation af the amic- 
 able relations which have existed between the two countries, and which the United 
 States have always and with so much earnestness endeavored to cultivate and main- 
 tain. 
 
 Upon Peru, therefore, falls the responsibility of all the consequences which may result 
 from a policy which the undersigned does not consider warranted either in justice or by 
 the calm reflection which the gravity of the case demands. 
 
129 
 
 The undersigned has the honor of offering to His Excellency the assurances of his most 
 distinguished consideration. 
 
 J. RANDOLPH CLAT. 
 To His Excellency, Don JOSE FABIO MELGAR, 
 
 Minister for Foreign Affairs of Peru, &c., etc. 
 
 MINISTRY OF FOREIGN AFFAIRS OF PERU, ) 
 LIMA, October 17th, 1860. f 
 
 The undersigned, Minister for Foreign Affairs of Peru, feels regret in handing 
 inclosed the passports which, by note of the 9th instant, His Excellency the Minis- 
 ter Plenipotentiary and Envoy Extraordinary of the United States has requested, 
 and if His Excellency deplores that the determination of the government of the 
 undersigned, not to acknowledge the responsibility which has been exacted of it, 
 for the capture and confiscation of the Lizzie Thompson and Georgiana, has obliged 
 him to carry into effect the instructions of his Government, that of the undersigned 
 does not the less regret that those instructions have not permitted His Excellency 
 to accept the equitable and friendly proposition which was submitted to him in the 
 conferences to which he alludes, nor even to consult his government in regard to 
 said proposition, in order to endeavor to avoid the extreme measure which he has 
 adopted. 
 
 As His Excellency Mr. Clay has deemed it well, in his said letter, to make cer- 
 tain observations relating to various points broached in conferences and previous 
 notes, the undersigned will also refer to them, though it may be useless to do so 
 after having arrived, on this subject, at so unfortunate a result with/ the American 
 Legation. 
 
 His Excellency Mr. Clay recalls all that he has said in conferences and official 
 notes to the predecessor of the undersigned, Senor Carpio, to the undersigned him- 
 self, and to His Excellency the President of the Kepublic, touching the strictness of 
 his instructions for the suspension of diplomatic relations with Peru in a given con- 
 tingency, and he makes this retrospection with the object of demonstrating that 
 the intimation contained in his note of the 2d instant, should not have caused sur- 
 prise to the Peruvian Government. Although this point must be of secondary 
 interest in the grave case now under consideration, the undersigned cannot avoid 
 insisting that his government had reasons for regarding the said intimation with 
 surprise. The government even had reasons for believing that His Excellency Mr. 
 Clay, as he himself declared he would, intended to reflect a little further on the 
 matter before making the said intimation; because the government had seen that, 
 notwithstanding the rigor of his instructions, he sought w r ith solicitous and laudable 
 zeal a means of amicably terminating the matter in question ; and because, above 
 all, the last reply given to the propositions of the United States did not present the 
 refusal which Avas to be the contingency prescribed for the rupture, which Mr. 
 Clay has consummated, of the diplomatic relations. 
 
 His Excellency says that he does not deem it necessary to reply particularly to 
 the observations in the note of the undersigned, under date of the 6th instant, be- 
 cause the Peruvian Government has refused to reconsider its decision, contained in 
 the note of the 22d December, 1859, or proceed to any other settlement of this 
 question. It is certain that in the position into which affairs have unfortunately 
 
 IT 
 
130 
 
 fallen, this discussion is unnecessary ; yet the undersigned cannot omit to notice 
 incidentally that from the 22d December last until the present time, nothing new 
 has been introduced into the subject. The case of the Lizzie Thompson and Geor- 
 giana has been presented together with other reclamations, and in the question so 
 made up, the government of the undersigned has made a proposition which cannot 
 in justice be called a refusal to proceed to any other settlement. Neither can the de- 
 clining to accede to the entire proposition, contained in the note of His Excellency 
 Mr. Clay, under date of the 2d instant, be said to signify a refusal of this descrip- 
 tion, since the Peruvian Government admits the greater part of that proposition. 
 The retirement of Mr. Clay, therefore, cannot be said to arise from an absolute 
 refusal of his demands. 
 
 In speaking of the proposition just mentioned, His Excellency is pleased to say 
 that he had hoped it would be admitted, since the undersigned had been the first to 
 suggest it. And here, because this somewhat touches the circumspection which 
 the undersigned should observe, he claims the rather lengthened attention of Mr. 
 Clay. 
 
 His Excellency cannot have forgotten that whenever the undersigned read the 
 said proposition (when there occurred in it the phrase that the Government of 
 Peru should acknowledge itself responsible for the capture and confiscation of the 
 Lizzie Thompson and Georgiana,} the paper fell from his hands, so to speak, on his 
 arriving at said passage, and he could not continue without saying to Mr. Clay that 
 the Government of Peru would never consent to it nor lend itself to any kind of 
 instrument which hinted at the acknowledgment of that responsibility. On one. 
 occasion, the undersigned being urged by His Excellency Mr. Clay to give him an 
 answer which he might transmit to his Government, the undersigned said to him 
 that he, (the undersigned,) as a Minister in possession of the views and decision of 
 His Excellency the President of the Republic, and of the opinion of the other 
 Ministers composing the Cabinet, could not give an affirmative answer to his de- 
 mand; and that neither, as Minister of Foreign Affairs, capable by his position of 
 compromising his government by his reply, could he accede to the demand, and that 
 he refused it, being intimately convinced of the justice of Peru in the matter. 
 His Excellency Mr. Clay said that he did not admit this answer that is, that he 
 regarded himself as not answered. The undersigned told him that he agreed that 
 his reply should not be admitted, in the sense indicated, and thus the conference 
 terminated what was said at its conclusion being considered private. 
 
 From this, no doubt, originated His Excellency Mr. Clay's having solicited, 
 through the undersigned, an interview with his Excellency the President, to which 
 request the undersigned willingly acceded, in the hope that, as Mr. Clay said, some 
 amicable arrangement might result therefrom. Although, after that time, the un- 
 dersigned might have suggested some idea which might have softened his strict 
 refusal, without prejudice to his circumspection, since the matter was going to be 
 treated with His Excellency the President, at the request of Mr. Clay, yet notwith- 
 standing that Mr. Clay twice urged him to consider some form of document which 
 might be presented to His Excellency the President, the undersigned did nothing 
 more than suggest to him to omit, in his proposition, the phrase acknowledging the 
 responsibility, and to mention summarily the pending claims, in order that they 
 might thus be taken into consideration; that is, that they might be discussed with- 
 out the undersigned's guaranteeing that the matter would be admitted. On the 
 first or second day following, His Excellency Mr. Clay brought to the office of the 
 Minister the said proposition, written by his own hand, and with the aforementioned 
 
131 
 
 phrase suppressed, to be presented in that form to His Excellency the President 
 If Mr. Clay calls this suggesting the proposition, the undersigned sees in it nothing 
 more than a persistence in the opinion that the Government of Peru would never 
 consent to declare itself responsible for the seizure and confiscation of the Lizzie 
 Thompson and Georgiana. 
 
 Among other observations, His Excellency Mr. Clay alludes to the transaction 
 of March, 1841, by which indemnities were conceded to the vessels Esther and 
 General Brown, which had been condemned by the judicial authorities of Peru. By 
 this allusion His Excellency attempts to prove that similar indemnities must now 
 be granted, notwithstanding that the Constitution of the State may prevent, since 
 the Government now possesses the same powers which it enjoyed when the cases 
 of the Esther and General Brown occurred. Mr. Clay will permit the undersigned 
 to think differently, for, in order to decide whether the Constitution does or does 
 not prohibit such or such an action, the proper way is not to investigate indirectly, 
 but rather directly to open and examine that Constitution; and certainly that which 
 
 now rules in the republic establishes the independence of the judicial authority, 
 
 and what is more noteworthy in the present case, prohibits the President of the 
 Republic from making treaties inimical to the sovereignty of the State. And if the 
 Constitution which ruled when the aforementioned cases transpired, established, 
 like the present one, the independence of the judicial authority, and if, notwith- 
 standing that independence, indemnities, contrary to the judgment of those tribunals 
 were conceded, it is evident that that was an exceptional proceeding, which must 
 have rested on its own peculiar grounds, and which could not furnish an example 
 for the case of the Lizzie Thompson and Georgiana. 
 
 If the allusion of His Excellency Mr. Clay is not presented otherwise than as a 
 precedent, which in its present aspect, the undersigned does not doubt that His 
 Excellency will be pleased to take into consideration : that precedents do not 
 possess the same force in the presence as in the absence of laws : that in order to 
 be cited, a precedent should have entire analogy with the existing case : that no 
 analogy has been demonstrated between the transaction to which Mr. Clay alludes, 
 and that which is now in question ; and that there are rights, the defence of which 
 cannot be yielded because of any precedent or even of a previous explicit renuncia- 
 tion. The consequences of these principles are so obvious, and the opportunity for 
 discussing them with Mr. Clay having passed, the undersigned will not go into a 
 detail of those consequences, but will only point but the facts : That the indemnifi- 
 cation to which His Excellency refers was made in the year 1841, whe_i Peru was 
 emerging from ten years of complete chaos, during which she had been conquered 
 and dismembered, with the loss of her unity and nationality. Peru, then newly 
 born, found herself confronted with a difficulty from which she had to escape by 
 the transaction of March, 1841. That difficulty had been contracted when Peru 
 had neither her own Constitution nor her own Government ; when her tribunals 
 were not free, and her laws were ineffective. His Excellency will, then, readily 
 understand that precedents should not be sought in that normal epoch, and that an 
 a^t of the Government of the Peru-Bolivian Confederation could not serve as a 
 precedent to the prejudice of Peru after she had recovered her independence. 
 
 Very grave and delicate is the question treated in the note of Mr. Clay, wherein 
 he seeks to throw upon the government of the undersigned the responsibility of 
 the cessation to use his language of the friendly relations of Peru with the 
 United States. In regard to Mr. Clay, the government of the undersigned will 
 deny the responsibility ; requesting only that he will remember what has been 
 
132 
 
 said verbally and in writing, in the course of the lengthy discussion of this subject. 
 In regard to the government of His Excellency and to the whole civilized world, 
 Peru will demonstrate, when occasion arises, (and may such occasion never arise,) 
 that she is entirely free of that responsibility, and for the present it will suffice to 
 say that Peru, in defence of a principle of vital importance, answers a demand, 
 purely pecuniary, of the United States, not with an absolute refusal of such claim , 
 but submitting its justice clear and certain, as though it were obscure or doubtful 
 to the decision of an umpire, with whose judgment she engages to conform ; and 
 this after smoothing the way to a settlement of other pecuniary claims, in the man- 
 ner proposed by the United States, in all of which the Peruvian Government fore- 
 goes its power to decide for itself all executive and diplomatic matters, and consents 
 to present as doubtful, and to submit to a foreign decision, a right which she believes, 
 with a profound conviction, belongs to her. 
 
 Finally, the undersigned, by express order of His Excellency the President of 
 the Republic, has the honor of saying to His Excellency the Minister Plenipoten- 
 tiary and Envoy Extraordinary of the United States, that there is yet time for His 
 Excellency, after a moment of calm and serious reflection, to suspend his determi- 
 nation to withdraw, and to refer to his government such points as may appear 1o 
 him necessary, in view of the nature and position of the question, the extreme 
 proofs of deference which have been shown him, and the grave responsibilities 
 which may succeed to an act that cannot fail to prejudice the commerce of Peru 
 and of the United States. 
 
 If His Excellency Mr. Clay should resolve to consummate his intention, the un- 
 dersigned must remain with regret at not having been able to obtain from His 
 Excellency a friendly termination of this affair ; but it will always afford him plea- 
 sure to reiterate to His Excellency the assurance of his high esteem and personal 
 appreciation. 
 
 JOSE FABJO MEXCAR, 
 To His Excellency the Minister Plenipotentiary and 
 
 Envoy Extraordinary of the United States, 
 
 FORM OF THE PASSPORT. 
 
 Jose Fdbio Melgar, Minister of Foreign Affairs of Peru. 
 
 Whereas, His Excellency Don John Randolph Clay, Envoy Extraordinary and 
 Minister Plenipotentiary of the United States, has requested of the Government 
 passports to return to the said States, together with his family and other persons 
 composing the Legation : 
 
 I therefore order and direct the authorities of the rcpublic^and I request those of 
 foreign countries, to place no embarrassment whatever in the way of the journey 
 of said Mr. Clay, his family and party, but rather to afford them all facilities that 
 may be necessary, and to show them due respect. 
 
 Executed in Lima on the 17th day of October, 18GO. 
 
 (Signed) JOSE FABIO MELGAR. 
 
133 
 
 LIMA, Oct. 19, 1860. 
 
 The undersigned has had the honor to receive the communication of His Excel- 
 lency the Minister of External Relations of Peru, dated the 17th instant, inclosing 
 the passports he had demanded in his note of the 9th instant, in consequence of the 
 refusal of the Government of Peru to accept the propositions addressed to it in the 
 name of the United States, either in their original form or as modified by the un- 
 dersigned in the conferences he had the honor to attend with the President of the 
 Republic and the Minister of External Relations. The undersigned consequently, 
 greatly to his regret, is placed by the solemn act of the Government of Peru, under 
 the necessity of consummating the instructions transmitted to him by the Secretary 
 of State, and of informing His Excellency the Minister of External Relations, that 
 the diplomatic relations between the two republics will be closed from and 'after 
 this date. 
 
 In communicating this notice to the Peruvian Government, the undersigned can- 
 not refrain from observing that the repeated assurances given him by Senor Melgar, 
 and by other ministers who have heretofore been intrusted with the portfolio of ex- 
 ternal relations, of their ardent desire to devise some means of arriving at a satisfac- 
 tory solution of the pending questions, had induced the undersigned to believe that 
 he might yet be able to avoid the necessity of his official withdrawal from Peru. 
 Unhappily this has not been the case, and now, when on the eve of departing from 
 the countiy, the thorough conviction attends him of having omitted no effort to 
 preserve those friendly relations, which it is the duty of both nations to cultivate, 
 and which have been interrupted by the reiterated refusal of the Peruvian Govern- 
 ment to do justice to the citizens of the Union for damages committed under its 
 authority. 
 
 And here the undersigned would close this correspondence, but lor the necessity of 
 correcting an equivocation in which your Excellency has indulged, in regard to the two 
 modified propositions offered by the undersigned, probably because your Excellency has 
 referred to one conference that which, in fact, occurred at several interviews. Your Ex- 
 cellency may remember that, in the month of June last, the undersigned, with a view to 
 removing the objection urged by your Excellency to the first proposition contained in the 
 note of the undersigned of June 5th, 1860, (namely, that its acceptance by the Peruvian 
 Government would constitute a disastrous precedent), offered to modify it in the follow- 
 ing terms: "Article 1. The Government of Peru agrees to pay to the owners, captains, 
 and other parties interested in the barks Lizzie Thompson and Georgiana a sura which 
 shall be determined by Article 2d of this Convention." Your Excellency at that time 
 and at various subsequent conferences declined to accede to the proposal, alleging that 
 it would involve a recognition of the responsibility of the Peruvian Government to in- 
 demnify the parties. 
 
 It was not until a conference, which occurred on the 21st September, that your Ex- 
 cellency, in refusing to accept the proposition first quoted, and in repeating the assur- 
 ance of your ardent desire to discover some means of attaining a friendly solution, said 
 that you believed it might be accomplished by the Peruvian Government consenting to 
 give a considerable sum in liquidation of all claim, "as the principle disputed by Peru, 
 in the case of the barks, would thus be saved." And your Excellency, at the same time, 
 informed the undersigned that he could not formally tender this basis of settlement with- 
 o.it previously consulting the President. 
 
 The undersigned replied, substantially, that he would reflect upon the terms in 
 which such a proposition should be couched, and also assented that this conversation 
 should neither bind nor compromise either of the parties. But the undersigned has no 
 recollection that the objeqt of the interview was to be regarded as private, since there 
 
134: 
 
 was no necessity of placing the seal of confidence upon it ; and, moreover, if the under- 
 signed had considered it private, he would not have presented the proposition formally 
 when writing in the presence of the Chief Clerk, in the Foreign Office, on the following 
 day. 
 
 Such ia the expression of the undersigned in regard to what took place on that occa- 
 sion ; and he can hardly be deceived, since he preserved a memorandum of what passed, 
 nor does the undersigned perceive any reason why your Excellency should consider as 
 private a transaction which occurred naturally in the course of negotiation, and which 
 cannot, owing to the manner in which the incident occurred, affect in any way your pri- 
 vate or public responsibility. On the contrary, indeed, the undersigned can only regard 
 it as honorable to your Excellency that you should have offered a suggestion which, 
 could it have been realized, would have obviated all difficulty. 
 
 With respect to the closing remarks of your Excellency, made by the express instruc- 
 tions of the President of the Republic, the undersigned has the honor to say that a mature 
 consideration and a clear discussion, lasting through the past two years, have confirmed 
 him, and also the Government of the United States, which has examined the question in 
 all its phases, in the conviction that the claims of the owners and others interested in the 
 two barks are entirely just. However serious, therefore, may be the responsibility for 
 the consequences to follow a cessation of diplomatic relations between the two nations, 
 they must be ascribed to the acts of the Government of Peru. 
 
 '1 he undersigned, notwithstanding, being always disposed to pay respect to the wishes 
 of His Excellency the President of the Republic, would not hesitate to assume the 
 responsibility of entertaining any further propositions which may be addressed to him 
 by the Peruvian Government, provided it be compatible with the instructions of the 
 undersigned. 
 
 It has ever been his ardent desire to maintain and draw closer the relations of the two 
 nations, and if he is obliged to withdraw from this capital in obedience to his explicit 
 and peremptory instructions, it will be after having exerted all the resources which an 
 experience of many years in the service of his country have suggested to him to induce 
 the Government of Peru to bring to an amicable adjustment the affairs in question. 
 
 In every event, however, the undersigned shall always recur with grateful recollection 
 to the friendship with which he has been honored by His Excellency the President of 
 the Republic, and avails himself of this occasion to assure His Excellency Senor Melgar 
 of his most distinguished consideration and high personal regard. 
 
 J. RANDOLPH CLAY. 
 To His Excellency DON JOSE FABTO MELGAR, 
 
 Minister of External Relations of the Republic of Peru. 
 
 LIMA, Oct. 22d, 1860. 
 
 The undersigned, Minister of External Relations, has had the honor to receive the 
 esteemed note of His Excellency the Envoy Extraordinary and Minister Plenipotentiary 
 of the United States, dated the 19th inst., in which he acknowledges the receipt of the 
 passports which, at his request, were transmitted to him, and to confirm the fuct that 
 from that date the diplomatic relations between this republic and that of the Union 
 should be closed. lj[is Excellency states that you have given this notice with great 
 vegret, and solely in obedience to your instructions, in consequence of the government of 
 the undersigned having failed to accept the propositions which you had presented to it 
 in the matter of the Lizzie Ihompson and the Georgiana. The undersigned can also 
 assure His Excellency Mr. Clay that this government has deeply regretted to deliver the 
 passports, which he demanded, and that it has felt the most profound sorrow at not 
 
135 
 
 being able to go further than it has gone in concessions and the sacrifice of its rights in 
 order that the difficulty referred to might be terminated in the most prompt and friendly 
 manner. 
 
 Notwithstanding the cessation of diplomatic relations, Mr. Clay very properly wishes 
 to revive certain particulars of the question, and the undersigned is quite ready to give 
 them a reconsideration, with the dame intentions as those which govern His Excellency. 
 
 I shall not enter into a discussion of so much of what your Excellency has said touch- 
 ing the narration made by the undersigned of what occurred in the several conferences, 
 for the discussion of the proposition ultimately presented by Mr. Clay. It is proper to 
 omit so much, since His Excellency, with striking frankness, has charged the undersigned 
 with an equivocation. It is the more advisable to waive it, because to discuss it will in 
 no way aid in the principal part of the question ; and the undersigned may the more 
 safely forego the discussion, as Mr. Clay has already declared th at whatever the words 
 and phrases employed they were not "to bind or compromise" any of the parties. The 
 undersigned only recurs to this point with the single object of showing that he had con- 
 tracted no engagement to consider the final proposition presented by Mr. Clay. 
 
 In controverting the closing portion of the note of the undersigned, dated on the 17th, 
 Mr. Clay says substantially that protracted discussion and mature and prolonged exam- 
 ination of the matter has produced in him and in his government the conviction that the 
 claims of the owners and other parties interested in the two barks are entirely just. His 
 Excellency in this way justifies himself in saying, that the responsibilities which attend 
 from the suspension of diplomatic relations, originating in the rejection of these claims, 
 will belong to Peru. 
 
 Without serious offence to Mr. Clay, the undersigned could not have presumed that, 
 in the absence of the conviction he expresses, he would have insisted so strenuously in 
 his demands, and would have proceeded to the extreme of severing his official relations 
 with the Peruvian Government. But Mr. Clay will still do this government the justice 
 to believe that, if it has refused and shall still refuse, to pay the indemnities demanded 
 of it, it will only be because it is conscientiously convinced that the claim of the owners 
 and others interested in the vessels which have caused this question, are wholly unjust. 
 In such a case, it is only left for the undersigned to submit them to the tribunal which 
 will be constituted by the civilized world, when they come to know the reasons which 
 each of the parties has urged in support of its position. 
 
 In the meantime, the undersigned cannot refrain from calling the attention of Mr. Clay 
 to the fact that the conflict is not between the demand of one nation and the refusal of 
 another, but between such a demand and the proposition to submit the same to the 
 judgment of an arbitrator. The nation, therefore, which would be sure of justice, and 
 consequently of a favorable judgment, should have accepted this means of accommoda- 
 tion before rupturing its relation with the other ; and it must be held responsible for the 
 consequences of the rupture, and not that other, who has not opposed a dogged refusal, 
 nnd who would hasten to do justice, if ihe umpire should declare in favor of the 
 claimants. 
 
 The undersigned, in present circumstances, reads with much pleasure, in the note of 
 Mr. Clay, that he would not hesitate to take the responsibility of receiving any proposi* 
 tion compatible with his instructions which the Peruvian Government might yet address 
 to him for a pacific arrangement, His Excellency writes this in response to an analogous 
 intimation, which the undersigned had the honor to submit in his last note. Sincere as 
 is the government of the undersigned, and sincere as is Mr. Clay, in declaring their dispo- 
 sition to perpetuate the good relations of Peru and the United States, the undersigned 
 cannot bring himself to believe that it is no longer possible to debate this question under 
 favorable auspices, and to render them available, with a view to avoid, if possible, the 
 suspension of diplomatic relations which Mr. Clay contemplates. He will be permitted 
 to remind Mr. Clay, that in his last conference with His Excellency the President, he 
 
136 
 
 said " that in the last resort he might consent on his own responsibility to the admission 
 of a temporary arrangement during the short period necessary for him to employ in con- 
 sulting his government." If Mr. Clay will take this course, which can in no manner com- 
 promise him, he will give a proof of his constant desire to draw still closer the relations 
 of his country with Peru, he will render it possible that upon final reflection. his govern- 
 ment may accede to the equitable proposal of arbitration ; that with a grave and 
 thorough consciousness his rights have been presented by the undersigned, and will 
 furnish this government with the pleasing ground of hope that Mr. Clay will not see 
 himself constrained to retire from this capital. 
 
 As it is, profoundly regretting that Mr. Clay is about to withdraw, the undersigned 
 would remind him of what he signified on a former occasion, that American citizens and 
 property in Peru will enjoy the same protection of the laws as if they were asserted 1 y 
 the most zealous representatives of his nation. 
 
 Whatever may be the final resolution of Mr. Clay, the proof of friendship he has 
 given will always be grateful to the President of the Republic; and the undersigned 
 will preserve the distinguished esteem with which he has regarded ITis Excellency, and 
 the high personal regard which he has had the honor to award him. 
 
 (Signed) JOSE F. MELGAR. 
 
 To His Excellency the Envoy Extraordinary and 
 
 Minister Plenipotentiary of the United States. 
 
 LIMA, Oct. 23d, 1860. 
 
 The undersigned has had the honor of receiving the communication which His Excel- 
 lency the Minister for Foreign Affairs of Peru has addressed to him, under date of the 
 22d inst., and to which the undersigned now replies, out of consideration for, and respect 
 to the Peruvian Government ; and also, because His Excellency has thought proper to 
 say that the difference which has arisen in the question of the vessels Lizzie Thompson 
 and Georgiana result not from the demand of the one nation and the refusal of the other, 
 but from the claim of the one nation and the proposal on the part of the other to submit 
 the same to arbitration. 
 
 The undersigned could at once accept the position mentioned by the Peruvian Gov- 
 ernment, if it included all its consequences, because if the difference has not had its origin 
 in the claim, but in the manner of its settlement, and its submission to the arbitration of 
 a third nation, Peru virtually admits the principle assumed by the Government of the 
 United States in the case of these vessels, and also admits the justice of the claim for in- 
 demnity which the United States have made in favor of the parties concerned. If then, 
 there is no other question on the part of Peru in regard to the claim made by the United 
 States, except that of submitting it to an arbitration, the undersigned believes that a 
 mixed commission appointed respectively byj both governments, would settle the points 
 in dispute as well as it could be donft by the arbitration of a foreign power. 
 
 His instructions do not permit the undersigned to go any further in the present mat- 
 ter. He has frequently informed the Peruvian Government, and ho now explicitly re- 
 peats it to His Excellency the Minister for Foreign Affairs, that he cannot for a moment 
 accept any proposal which might tend to infringe or to cast any doubt upon the unques* 
 tionable rights and privileges enjoyed by American citizens in their legitimate com- 
 merce. And it is not only the duty but the firm determination of the Government of the 
 United States to protect that commerce under all circumstances. This is with the gov- 
 ernment a supreme principle indispensable to its existence, and superior to any consid- 
 erations, how great soever they may be, and which the government regards as superior 
 even to those considerations which by reason of their gravity, and for the sake of pro- 
 priety and convenience, might he submitted to the arbitration of a third Power. 
 
13T 
 
 On this ground the undersigned cannot admit any discussion which might involve the 
 possibility of accepting the proposition of the Peruvian Government. The determination 
 of His Excellency's government, not to accept of any of the bases proposed by the un- 
 dersigned for the settlement of the question of the ships upon the arbitration by a third 
 Power, as the only expedient for a friendly solution, was the reason which induced the 
 undersigned to request his passports, in obedience to his instructions. These have already 
 been handed to the undersigned by the Peruvian Government, and diplomatic relations 
 between the two republics have been suspended. 
 
 Consequently, the undersigned cannot receive any official communication from His Ex- 
 cellency the Minister of Foreign Affairs, except the clear and distinct acceptance of the 
 first proposition contained in the note of the undersigned, under date of the 5th of June 
 last, or the acceptance of one of the bases which the undersigned has had the honor of 
 proposing to the Government of Peru. 
 
 The undersigned, after thanking His Excellency the President of the Republic, and His 
 Excellency the Minister for Foreign Affairs, for the flattering opinion which they have 
 been pleased to express of him personally, avails himself of the occasion to reiterate 
 to His Excellency Senor Melgar, the assurance of his highest consideration, 
 
 J. R, CLAY. 
 To His Excellency the Minister for Foreign Affairs of Peru. 
 
 CIRCULAR. 
 
 MINISTRY OF FOREIGN RELATIONS OF PERU, ) 
 LIMA, October 18th, 1860. f 
 
 The diplomatic relations which have existed between Peru and the United States 
 being interrupted, and the diplomatic agent of the United States accredited to this 
 Republic, being about to quit this country, the persons, property, and commerce of 
 the citizens of those States remain under the protection of the Peruvian Govern- 
 ment, and in the enjoyment of all the guarantees assured by the law to natives. 
 If, under any circumstances, an act of abuse, injustice, or hostility, against a citizen 
 of the Union would be punishable now, that they continue to reside in the 
 country trusting in the justice which distinguishes the present Administration, it is 
 necessary, not only in compliance with the Constitution, and with article 2 of the 
 Treaty of Friendship, Commerce, and Navigation, of July, 1851, which exists be- 
 tween this country and the United States, but also in demonstration of the fact that 
 Peru rises to the height of the civilization of the age, that you should charge most 
 especially all the authorities in your district to scrupulously see that the persons 
 and property of said citizens residing or traveling in the Republic be, as I have 
 already had the honor of saying to you, respected and secured, affording them all 
 the protection which the laws assure them, and taking all precautionary measures 
 to prevent the complication of the present situation, or the originating of com- 
 plaints and accusations, which the national dignity requires should be avoided under 
 all circumstances. 
 
 I would but offend your intelligence, were I to go on and point out to you the 
 means of carrying into effect these orders, which I beg you will have the kindness 
 to put in force immediately, and I have no doubt that the simple mentioning of the 
 same to you will lead to the fulfillment of the plausible object which I have in view 
 in addressing to you this order, by the special direction of His Excellency the 
 President of the Republic. 
 
 JOSE FABIO MELGAR. 
 18 
 
188 
 
 (Translated from the French.) 
 
 OFFICE OF FOREIGN AFFAIRS, ) 
 
 Political Department, Section of Litigous Affairs. \ 
 
 PARIS, July 15th, 1858. 
 To Mr. HUET, Consul-General and Charge* d' Affairs of France, at Lima; 
 
 Sir, In your official despatch of 25th February last, you have informed me of the re- 
 clamation presented against the Peruvian Government by Mr. Frederick Freraut, a 
 French citizen, residing at Iquique, and Consular- A gent of France at that place. 
 
 Mr. Freraut states that he had purchased from General Rivas, who was insurrected 
 against the Government established at Lima, the right to take guano from the deposits 
 at Pabellon de Pica and Punta de Lobos, and that two ships chartered for the purpose 
 of taking in cargoes of the said fertilizer had been captured by the Peruvian Govern- 
 ment. In virtue of these facts, Mr. Freraut claims an indemnity of $87,773, and has 
 applied to you requesting you to claim this sum from that government. You have re- 
 mitted to me Mr. Freraut's statement and request, with the accompanying documents, and 
 asked for my instructions on the subject. The importance of the reclamation, Mr. Fre- 
 raut's position, and the nature of the facts, give to this question such a grave character, 
 that I have thought it proper to submit it to the investigation of the Committee on, 
 Litigous Affairs in my department. 
 
 This committee issued, on the 22d of June, the following report ; 
 " Taking in consideration that the Peruvian Government has declared in numerous 
 documents which have received great publicity, even in France, that cargoes of guano 
 could only be taken from the deposits at the Chincha Islands and in virtue of special per- 
 mits issued by the Custom- House at Callao, after the fulfillment of certain previous 
 formalities required by it ; and that, moreover, the said Peruvian Governments has made 
 known his intention of persecuting and capturing all the vessels that might violate these 
 established rules ; 
 
 " That, with a full knowledge of these facts, Mr. Freraut bought from General Rivas 
 these cargoes ; that he ought to have foreseen all the risks to which he was exposing 
 himself in this business, and that he cannot raise legitimate reclamations grounded on the 
 duty of the Peruvian Government to secure the fulfillment of the laws and defend the 
 national property against the enterprises of revolutionary chiefs, even with the employ- 
 ment of force ; 
 
 " That if a nation can, sometimes, remain obliged, in consequence of agreements or 
 acts of a government de facto, this is only when the nation has been profited by them, 
 or when there is a question of reparation for acts of violence or despoil, or, finally, when 
 there are formal stipulations for it in treaties of pacification or acts of amnesty; but 
 that none of these considerations justify the pretensions of Mr. Freraut; 
 
 "That the contract made by him with Rivas, very far from being profitable to the 
 Peruvian Government, had, on the contrary, the object and effect of affording resources 
 to his enemies ; that Mr. Freraut has not been coacted in any way, but that he volun- 
 tarily contracted with the government de facto of General Vivanco; and that the govern, 
 ment of General Castilla has not bound itself in any way to fulfil the obligations con- 
 tracted by his adversary ; 
 
 "Taking in consideration that the decisions of the European Courts of Justice, by which 
 it has been denied to the Government of Peru the restitution of the cargoes of guano 
 taken away in violation of its fiscal regulations, have been pronounced under very dif- 
 ferent circumstances and when those cargoes had already been introduced in Europe ; 
 that, besides, these decisions have been grounded on the principle that in questions of 
 movable property possession answers for title, unless it is lost or stolen property : that 
 in Mr. Freraut's case this principle has no application-] 
 
139 
 
 " The Committee is of opinion that Mr. Fre>aut has no right to claim any indemnity 
 from the Peruvian Government for the seizure of his ships and cargoes." 
 I have given my approval to this opinion of the Committee on Litigous Affaiis. 
 Receive, <fcc., <fec., 
 
 (Signed) WALEWSEY. 
 (True copy.) 
 
 A. HUET. 
 
 VALPARAISO, December 15th, 1857. 
 Captain STEPHEN REYNOLDS, 
 
 Bark Georgiana, 
 
 Iquique : 
 
 Dear Sir, We have to advise you, that so far, we have been unable to obtain any freight 
 for your ship. The late charters since our last, have been a ship of 400 tons, at 2 17s. 
 6d., for Hamburg. Guano in the bay for England, at 2 17s. 6d. Offers are made to 
 load guano at Cobija. Some charterers are offering to take the risk of the Chincha Is- 
 lands, these being now in possession of the revolutionary party, but we would not advise 
 you to accept such a charter, although the Apurimac, now at Iquique, might go there. 
 Under these circumstances, it would be better for you to proceed to Callao, calling at 
 Arica, unless you could obtain a charter at Iquique. 
 
 We remain, sir, 
 
 Your ob't servants, 
 
 ALSOP &, Co. 
 
 DEPARTMENT OF FOREIGN AFFAIRS OF PERU, ) 
 LIMA, October 24th, 1860. y 
 
 (Circular to the Diplomatic Corps.) 
 
 In compliance with the duty imposed on my Government by civilization, and the 
 friendship which it sincerely cultivates with that of * * * * t 
 
 I have the honor to address * * * * * , for the pur- 
 
 pose of informing him of the occurrence, deeply to be regretted, of the suspension of 
 diplomatic relations between Peru and the United States of North America, which has 
 been carried into effect by H. E. the Envoy Extraordinary and Minister Plenipotentiary, 
 Don J. Randolph Clay, soliciting his passports, which I have remitted to him. I must, 
 at the same time, manifest to ******* the reasons 
 which will demonstrate the fact, that this deplorable occurrence has been brought about 
 without any fault on the part of Peru, and to this end I accompany the number of the 
 official periodical in which the notes are registered, which in this matter the Department 
 has exchanged with that Minister Plenipotentiary, and very shortly I will send * * 
 * * * another publication of all which has occurred since the act which gave 
 origin to this unfortunate business, that of all this he may give information to his gov- 
 ernment. 
 
 I shall be obliged if * * * will immediately 
 
 take cognizance of a brief resume of what has transpired in the discussion. 
 
140 
 
 A national vessel-of-war, -which was cruising on the southern coast, to prevent the 
 depredations of guano which were being made by the leader of a rebellion which broke 
 out in the city of Arequipa, took as prizes the American merchant vessels Lizzie Thomp- 
 son and Georgiana, having found them loading guano in places which not only were not 
 designated for the exportation of that article, but which, being neither principal nor 
 minor ports of the State, access to them was prohibited for foreign merchant vessels. 
 The Regulations of Commerce, which are laws of the State, and the rules for the expor- 
 tation of guano, which are also laws, and other orders of the government, prohibited, 
 under the penalty of confiscation of the vessel, the loading of said article at the deposits 
 from whence it was taken by the Lizzie Thompson and the Georgiana. These laws and 
 orders, published at different periods for their respective terms, were again published on 
 account of the rebellion at Arequipa, and also, by circular notifications to the Diplomatic 
 Corps. Nothing was wanting, then, to prevent the application of the penalties sanctioned 
 by them, in regard to the parties infringing, in whatever cases might occur, and this was 
 the case with the aforesaid vessels. 
 
 Further, the guano loaded by these vessels had been sold at a very low price by a 
 military chief belonging to the rebellion at Arequipa. The guano, which is national prop- 
 erty, could not be alienated except by the National Government, and in conformity with 
 the laws cited. The Government had already so stated to the foreign public agents, for 
 the better security of their rights, although the notification was unnecessary, and no in- 
 formation to the contrary had been received. The Lizzie Thompson and Gcorgiana, 
 therefore, committed a depredation in taking by a voluntary contract the national prop- 
 erty from the hands of the rebels, who could not under any pretext dispose of it. For 
 so flagrant an infraction and outrage of the regulations of commerce, and of those for 
 the exportation of guano, and for so scandalous a fraud upon the property of the State, 
 the vessels referred to were tried and confiscated, all the proceedings prescribed by the 
 laws being regarded in the trial 
 
 H. E. Mr. Clay made no observation in regard to the form of the trial, but made re- 
 clamation for the seizure and confiscation of the vessels, holding that the leader of the 
 rebellion at Arequipa was a ruler de facto, who could dispose of the national property 
 within his reach, and that the government de facto and of right of the nation was at 
 civil war with that leader. Never have more luminous expositions been made than have 
 been produced by my government here and in Washington, in proof of the true charac- 
 ter of rebellion which belonged to the pretended government of Arequipa, (a government 
 which was not recognized either implicitly nor explicitly by any nation,) its incapacity 
 to alienate the national property, the possession of all its rights by the national govern- 
 ment, with which all governments, including that of the Union, continued to treat and 
 communicate, the non-existence of a civil war with the rebels, and the legitimacy of the 
 seizures, even in case an intestine war had existed. 
 
 Unfortunately, my government, in the extended discussion of this business, has been 
 unable to convince that of the United States, that the indemnity asked by the owners, 
 and others interested in the Lizzie Thompson and Georgiana, is not due, and the Cabinet 
 at Washington has tenaciously persisted in claiming a large sum in this matter, even 
 going so far as to making intimations, little conforming with the friendship which exists 
 between this and that republic. My government could not accede to the recognition, as 
 was demanded, of its responsibility for the seizure of these vessels, because it cannot re- 
 nounce rights so important and so clear as those belonging to it, because it cannot attack 
 its own proper sovereignty, nnd the independence of the judicial power, because in 
 acceding to the demands of the United States, they would establish a ruinous principle 
 for all governments, including that of North America, and leave the national property 
 at the mercy of any rebel, who was pleased to call himself a government de facto, be- 
 cause especially the revenue of the guano would be attacked by rebels, who would take 
 that investiture, for the sole object of disposing of said article, and because, to be faith- 
 
ful to national compromises, it must guard, as it guards, with particular care, the preser- 
 vation of said revenues, hypothecated for the payment of the public debt, domestic as 
 well as foreign. 
 
 From the tenacious demands of the Government of the Union, and from the justice 
 and firm denial of mine, have resulted, therefore, the conflict which I to-day deplore. 
 To avoid it, no means have been spared, and they have gone so far as to make an actual 
 sacrifice of rights. We have proposed to submit the question to the arbitration of a 
 third power, first designating that of Great Britain, and afterwards offering to conform 
 with any selection made by the American Cabinet. We have consented thus to leave as 
 doubtful, and to the arbitration of a foreign decision, the justice which we firmly believe 
 is in our favor. The Government of the Union declines to adopt this mode, in use 
 among all nations in similar cases, and which it should adopt if it is convinced of having 
 reason and right on its side. 
 
 Latterly, H. E. Mr. Clay laid before my government a proposition that all reclamations 
 of American citizens against Peru, should be adjusted by a mixed commission named for 
 the purpose, my government previously declaring itself responsible for the confiscation 
 of the Lizzie Thompson and Georgiana. By what has already been said, it will be seen 
 that my government could not assent to the declaration indicated. H. E. Mr. Clay mod- 
 ified his proposition, urging that the indemnity for all American reclamations, including 
 that of these vessels, should be arranged by the mixed commission. My government 
 declared that it could not, even by implication, submit to the responsibility in question, 
 and this is what H. E. Mr. Clay has been pleased to define as an absolute denial on the 
 part of my government of the demands of his, and what has prompted his regretted 
 withdrawal. 
 
 The Minister of the Union has not deemed it worth while to consider the fact that 
 the greater part of his demands have been conceded, by their submission to a mixed 
 commission, important powers of my government being sacrificed thereby, and in that 
 relative to the Lizzie Thompson and the Georgiana, no absolute denial has been inter- 
 posed, because in the arbitration proposed by my government this demand might be 
 allowed, if founded in justice. 
 
 And moreover, in regard to the retirement of H. E. Mr. Clay, my government has 
 earnestly desired him not to carry it into effect, and that he should consult the Cabinet 
 at Washington, setting forth the truly satisfactory condition of the question with whose 
 solution he was charged. But Mr. Clay has decided that his instructions do not permit 
 him to assume, on his own responsibility, the delay of a few days, and thought it more 
 important to show his determination in this matter than to evince that his government, 
 reflecting at the last moment, and in view of the sacrifices already made by Peru, would 
 resolve to continue cultivating with this nation the friendly relations which to the pres- 
 ent time have been maintained, and to avoid the evils which a misunderstanding may 
 cause to their commerce and "that of Peru. He has not been deterred by the considera- 
 tion of the estimate which the world will place upon his government, sustaining with 
 tenacity a purely pecuniary demand against Peru, while the question is more than that 
 of money ; it is of principles of vital importance. 
 
 The civilized governments, and especially that of ***** * 
 will judge if in this grave and delicate business, Peru has not maintained the principles 
 of justice, and practiced those of international law, in a spirit of equity and harmony, 
 and if my government is not free from the imputed responsibility of the suspension 
 of diplomatic relations, which H. E. Mr. Clay has deemed it proper to put in practice. 
 
 I have the honor to reiterate to ***** the sentiments of 
 my distinguished consideration and regard. 
 
 (Signed) JOSE FABIO MELOAE. 
 
 
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