^10 AVES ISLAND. 



it would never have been even referred "by him to his government, and 

 that if, in that case it had been so referred, the rejection of it as wholly- 

 void against these claimants must have been alike summary and con- 

 clusive. 



As against these claimants, therefore, this alleged ''agreement" is 

 null and of no effect ; but the force and fraud which as against them 

 invalidate and avoid it were not theirs, and therefore they and their 

 government have a right to claim that the "agreement" being now 

 insisted on by Venezuela shall as against the Venezuelan government 

 remain in the case to establish — 



First, That through its authorities that government even. in the act 

 of expelling them from the island acknowledged them to be not law- 

 breakers, but, on the contrary, of a character and in a position fit to 

 be negotiated with ; and, secondly, to establish as against these author- 

 ities that in the negotiation forming a part of the res gesta of their 

 expulsion, not force only, but fraud also was employed against them^ 

 and to their injury. 



Another consideration in this connection claims from the government 

 of Venezuela thoughtful attention. The signature of this paper by 

 the agents of these claimants, thus extorted, alone appears to have 

 prevented conflict, bloodshed, and, in the heated passion and stern retri- 

 bution of the hour, but too probable slaughter. That a paper prevent- 

 ing such dire and bloody work and its ulterior consequences, and sworn 

 to have been signed by these men only in that purpose, should be in- 

 sisted on in bar of this claim for just indemnification is, in the judg- 

 ment of the undersigned, most extraordinary and unjustifiable. 



The Hon, Mr. Gutierrez, making a distinction between things "com- 

 mon" and things "derelict," observes that "the Island of Aves is 

 not a derelict thing, nor can it be conceived how Mr. Eames asserts it 

 to be so, when, in the same paragraph, he states that it has never been 

 reduced to possession, nor under the jurisdiction of any power." The 

 undersigned would regret that the government of Venezuela should 

 continue under the totally erroneous impression that the government 

 of the United States has presented or urged this claim in any other 

 than precise and appropriate terms. The Hon. Mr. Gutierrez is, there- 

 fore, in reply informed that, in the judgment of the United States, 

 this Island of Aves having long been known but not reduced to pos- 

 session nor embraced within any jurisdiction, was in the strict legal 

 and lexicographical sense of that term derelict in the month of June, 

 1854, when the guano upon it was lawfully taken into actual posses- 

 sion by these claimants who had discovered it^ and whose right to 

 retain such possession undisturbed was good against the whole world, 

 when they were, to their great injury, wrongfully and unlawfully 

 driven away by Venezuela. 



But in this connection the note of the Hon. Mr. Gutierrez presents 

 other observations of far more extended reach, and which require direct 

 response. It alleges that as the government of the United States gave 

 no commission to these claimants to occupy the island "in its name," 

 they, as " mere private persons^" "had not the capacity of acquisition 

 which nations have^ and could not compete with any nation, nor con- 

 sider as occupied an island whose possession they had not force to main- 



