AVES ISLAND. 61 



fraud, as well as force and constraint, or duress, by which that paper 

 was obtained ; especially as upon its face, upon the first blush, these 

 characteristics are manifest. She must have known of them, for its 

 very form and stipulation are circumstances pregnant with fraud and 

 force. 



The fact that she has chosen to rely upon the capitulation and the 

 admissions therein, instead of giving proof of her discovery and actual 

 occupation, is suspicious. 



And if anything else was wanting, the official report of Dias, of his 

 exploit at Shelton's Isle, in the guano war, of his victories on that 

 bloody field of arms, of his capture of our artillery, of his contribu- 

 tions levied upon us for provisions and water, of his hauling down the 

 Yankee flag (if we could procure a copy) would be conclusive. 



We have called the isle a Moody field of arms, not because any 

 American blood was spilled there, but on account of the felo de se of 

 a Venezuelan soldier, in the feu de joie by which the hoisting of the 

 Venezuelan flag was saluted. 



We trust a copy will be procured by our minister, as we learn that 

 it is an interesting historical document. 



XXVn. FORM OF RELINQUISHMENT BY AGENT IMMATERIAL. 



It is of no consequence what the form adopted, except in so far as 

 its forni and contents indicate its character, and the means adopted to 

 obtain it. A parol relinquishment or verbal admission, if otherwise 

 unexceptionable, would have been as valid as if the form of a public 

 treaty by national representatives had been adopted ; or if Gibbs had 

 executed a deed of indenture, or deed poll, or technical release in due 

 form of law, signed, sealed, delivered, and acknowledged before some 

 judicial functionary, it would have been of no more force than mere 

 tradition of the personal property yielded up, or the manual delivery 

 of the vessels and artillery, and verbal acknowledgment of right and 

 title in Venezuela. 



All such acts would have been equally void. All such admissions, 

 whether written or verbal, are ineffectual to impair our rights. 



A convention or treaty between States may be by parol. — (2 Phill., 

 pp. 63, 64, § 69 ; Kluber, § 1413.) 



All that is necessary is, that the declaration should be positive and 

 clear. The consensus fetus of the civil law is unknown to national 

 jurisprudence. 



We have before urged that the form that seems to have suited Com- 

 mander Dias's fancy, that of a military capitulation by an agent and 

 employe without the honors of war, (the United States flag having 

 been forcibly hauled down by Dias on his storming the isle, their 

 artillery and armament demanded, and themselves obliged to engage 

 in aid of the Venezuelans,) is significant of the force and coercion em- 

 ployed by Dias, and the constraint, "under the circumstances," which 

 induced Gibbs to take the permit, (with the misrepresentation and 

 fraud also practiced,) and to yield his signature to that capitulation. 



