I, Alexander Bafter, having examined the above bill, as far as my experience goes, and from the opinion of many, think it very mod

erate.

ALEXANDER BAFTER,

Master of Ship Clever.

LEGATION OF THE UNITED STATES,

Santiago de Chile, May 8, 1851.

The undersigned, envoy extraordinary and minister plenipotentiary of the United States of America near the government of Chile, had the honor, on the 8th of March last, to address a note to his excellency Señor Don Antonio Varas, minister of state and foreign relations of Chile, in relation to the impressment, by the local authorities of the port of Valparaiso, of four mariners-three Chilenos and one Frenchman-from the United States whale-ship "Addison," on the fifteenth day of October last, while the said ship was in the port of Valparaiso; the said mariners having been taken from the deck of the said whaler against the wishes and remonstrances of the master thereof, and placed to serve on board of the Chilean armed vessel called the "Chile," and by her taken to sea on the morning of the 16th of October last,

With the note above mentioned, the undersigned sent, for the information and satisfaction of his excellency, copies of all the depositions and other documents, which, as he believes, established the facts of the case beyond all dispute. To this note the undersigned has received no reply, save an acknowledgment of its reception by the communication of his excellency, bearing date the 14th of March; and he is confident that his excellency will see the importance of paying due and proper attention to a case involving questions of so much delicacy, and in relation to which, more than any others, the public feeling of the United States is sensitive and easily inflamed.

The undersigned felt it to be his duty to forward, and he did accordingly forward, by the last mail, to his government, a copy of this said note of the 8th of March, and regrets that he was unable to accompany his communication with the reply of his excellency.

The undersigned expresses the confident hope that his excellency will appreciate the importance of giving his early and serious attention to the subject, and that the conclusions to which he may arrive, after a full examination of the testimony submitted, will be such as to remove all just cause of complaint.

The undersigned avails himself of the occasion to renew to his excellency Señor Varas the assurance of his distinguished consideration. BALIE PEYTON.

His Excellency SEÑOR DON ANTONIO VARAS,
Minister of State and Foreign Relations, Chile.

[Translation.]

SANTIAGO, June 10, 1851.

The undersigned, minister of state in the department of foreign relations, has the honor to reply to the note of the 8th of March of the present year, which was addressed to him by Mr. Balie Peyton, envoy extraordinary and minister plenipotentiary of the United States of America, relative to the transfer of four mariners from the American whale-ship "Addison" to the national frigate " Chile;" in which note his excellency considers the occurrence of the 15th of October last, on board of that vessel, as a usurpation of authority, and an invasion of the jurisdiction of the United States, committed by the maritime governor of Valparaiso, and by which the captain of the "Addison has sustained damages, whose indemnification he thinks he has the right to demand from the authorities of Chile.

The undersigned has, so far, abstained from entering upon a new examination of this occurrence, waiting until all the facts which it might be possible to obtain should be furnished him, to the end that he might be enabled to present the occurrence, in this respect, in a manner which would effectively secure an appreciation of the facts in their true value, judging them according to the principles of justice and of the strictest impartiality. Impressed with these sentiments, the undersigned does not hesitate to confess to the minister plenipotentiary of the United States of America that he does not comprehend the motives which his excellency may have had in giving to that affair the grave character with which he appears to invest it in his honorable note, nor much less the principles upon which the demand of Captain Lawrence could be supported.

It must be observed, therefore, that from the investigations made by the gubernatorial and judicial authorities of Valparaiso, by order of this department, for the purpose of putting the occurrence, in all its details, in a clear light, there does not appear to be the slightest ground to suppose that it was the consequence of any preceding circumstance, which would justify the supposition that the maritime authority of Valparaiso was influenced by personal motives, or by any interested motives whatever. Between the maritime governor and Captain Lawrence there had been no former intercourse, as it appears; and absolutely there did not exist a necessity for sailors to man the "Chile," as might be supposed, because there was a great number of them in the arsenal and in the other national vessels, as is proved by the offer of them made to Captain Lawrence on the same day (15th) and on the day following. It is also to be observed that the captain of the "Addison" never presented to the authorities of Valparaiso the contract which he ought (debió) to have made with the sailors transferred to the "Chile," at the time of incorporating them with his crew at Talcahuano; a contract which ought to have been legalized by the maritime governor of that port, and which is indispensable, especially on board of a whaling-vessel, in order to establish the reciprocal rights of the captain and his crew. This supposed, and following the course of the maritime authority of Valparaiso in this occurrence, it is not difficult to believe that his conduct was as

blameless as the motives which inspired him were good: Four men belonging to the American whale-ship "Addison, (three of them citizens of Chile, and the other a Frenchman,) being discontented with the treatment they received on board of that ship, implored the intervention of the maritime governor. On this account the maritime governor seeks the captain of the "Addison," and goes with him on board. There he informs himself of the cause of the complaint of the four sailors, who, among other things, said that they were badly fed. This being made known to the captain, he answered that that difficulty would be remedied in future, because he thought of arranging the galley, and providing better food. (This is established by the exposition of Captain Lawrence himself.) The maritime governor made known to the discontented sailors what were the captain's intentions, and urged them to remain on board the "Addison;" but they replied that they did not wish to remain there on any account, because they were afraid that if they were treated so badly in port, they would be still worse treated at sea. This resolution of the sailors was again opposed by the maritime governor, who answered them that, if they insisted on leaving the "Addison," he would not permit them to go on shore, but that he would send them on board of one of the ships-of-war; to which they replied they would go anywhere rather than remain on board of the American vessel. It was then determined to transfer them to the "Chile;" the maritime governor offering to assist Captain Lawrence in up-filling his crew.

This was the conduct of the maritime governor of Valparaiso in the occurrence which took place on the 15th of last October, on board of the whaler "Addison"-conduct to which the captain of the vessel gave his consent; otherwise, his proceedings on that occasion would not have been at variance with what he now pretends to establish. If he had not spontaneonsly concurred in the visit of the maritime governor to the "Addison," with the object that this officer indicated to him, in seeking him in the house of Loring Brothers and Co., why was it that on meeting the American consul (with whom he must have spoken of the object of the maritime governor's visit to the "Addison,") he did not profit by that opportunity to protest before his consul against the intervention of the local authority in matters on board of his ship? Captain Lawrence could not mistake the object of the visit of the maritime governor to the "Addison." He might have known it in a manner more or less definite. He might have been ignorant of the result of this step; but he certainly knew that the object proposed was to settle a question between himself and his sailors; that is to say, he knew that the maritime governor was going in his official capacity to interfere on board of his vessel, which is what he has afterwards considered an offence; and if he saw that this offence was about to be committed on the flag of his nation, why was it that on meeting with the American consul and speaking with him on the subject, neither the one nor the other offered the least difficulty or observation to the maritime governor, in order, at least, to call his attention to the offence which he was about to commit on the American flag? From the moment that the visit of the maritime governor to the "Addison" was admitted, without the least objection, with an object

!

known to all, it appears that his intervention was accepted as competent in the matter, and that it was considered as entirely free from all offensive character towards the American flag. If it be supposed now that the sailors left the "Addison" without the consent of the captain, why did he lend a boat from his own vessel for their transportation? Why, above all, does he himself go with the maritime governor on board of the "Chile," visit that vessel, take a drink with her commander, speak of his accounts with the transferred sailors, and conclude by saying that "two of them might serve as seamen, and the other two only as landsmen, but that all four were lazy fellows?"

Can his excellency suppose that a man, in whose person an offence had just been made to the flag of his nation, as Captain Lawrence has since pretended, would do all this? One who has just suffered from an act, which prevents him from sailing within fifteen minutes in pursuit of whales, which promised him so rich a harvest? Nevertheless, all this is established by the evidence of Mr. Cabieses, commander, at the time, of the frigate "Chile," and which is not contradicted by that of Captain Lawrence, who limits himself to explaining the circumstance of having lent his boat for the transfer of the sailors, in a manner almost inadmissible in a person who fills the office of captain of a vessel.

The undersigned calls the attention of the minister plenipotentiary of the United States to these circumstances, with which he thinks he may yet be unacquainted, and upon the conclusive deductions which follow, and passes on to consider the conduct of the maritime governor on board of the "Addison," in the same manner that his excellency supposes it. Let it be supposed that that functionary exercised an act of jurisdiction on board of the American vessel, adjusting a question between the captain and the discontented sailors, and that this intervention of the local authority has not been spontaneously, though tacitly, concurred in by Captain Lawrence. What is there in the occurrence that could constitute a national offence? Is it not proper for every nation to exercise exclusive jurisdiction on board of merchant vessels anchored in its waters, except when it has been deprived of this right by treaties? Is not this practice constantly recognised by nations, and by the doctrine of writers generally respected on international law? "A clear distinction was to be drawn between the rights acceded to trading vessels and public armed ships. All exemption from territorial jurisdiction must be derived from the consent of the sovereign of the territory. When merchant vessels enter for the purpose of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the gov ernment to degradation, if such individuals did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the sovereign have any motive for wishing such exemption. His subjects, then, passing into foreign countries, are not employed by him; nor are they engaged in national pursuits. Consequently, there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no motive for requiring it. The implied license, therefore,

under which they enter, can never be construed to grant such exemption. " (Wheaton on the Law of Nations, page 148.)

And it is to be observed, that nations have seen the necessity of being governed by this principle, as it appears from the fact that they have constantly avoided investing their consuls with judicial powers, by not giving them, in so far as it concerns the settlement of questions between seafaring people of the nation which names them, any other character than that of simple mediators. "Their duties and privileges are now generally limited and defined in treaties of commerce, or by the statute regulations of the country which they represent. In some places, they have been invested with judicial powers over the disputes between their own merchants, in foreign ports; but in the commercial treaties made by Great Britain, there is rarely any stipulation for clothing them with judicial authority, except in treaties with the Barbary powers; and in England, it has been held that a consul is not strictly a judicial officer, and they have there no judicial power *** But no government can invest its consuls with judicial powers over their own subjects in a foreign country, without the consent of the government of the foreign country, founded on treaty." (Kent's Commentaries, pages 41 and 42.)

The States of the American Union themselves, which once gave one of the rarest examples of exception to this rule, in its consular conventions with France, have returned to it, reducing the attributes. of their consuls to the limits generally established by the practice of nations. Under this supposition, to whom did it belong to take cognisance of the complaint of the four sailors in question against the captain of the "Addison?" To no one, certainly, except the maritime authorities of Valparaiso.

It might be said that the more liberal spirit of some modern states tends to relax this principle, which excludes all foreign jurisdiction on board of even foreign vessels anchored in the waters of a nation. But this principle still holds all its force, and it cannot be pretended that a state must necessarily adhere to a contrary rule, unless she is obliged thereto by treaty, or by a long practice which may supply the place of a treaty.

This republic is in neither of these cases. It has not, in its treaties. with other nations, stipulated on these matters anything which is not in conformity with general principles, and, in all cases which have occurred, bearing some resemblance to the present, in which the local jurisdiction was denied, ("se declinaba,") and it was attempted to establish the competency of a foreign jurisdiction, ("i se pretendia probar la competencia de una jurisdiccion extranjera,") this government has always sustained the territorial jurisdiction, being obliged thereto by positive requirements of Chilean laws, which are in accordance, on this point, with the principles of international law.

The undersigned persists, then, in believing, as he said in his note to his excellency of the 24th of October last, that even admitting the intervention of the maritime governor, on board of the "Addison," as an act of positive ("perfecta") jurisdiction exercised on an American vessel, there would be no reason to characterize that act as a violation