umpire is of opinion that, under the circumstances in this case, Spain would not have incurred any liability even if he had been expelled.

"Therefore the umpire hereby decides that this claim be dismissed."

Count Lewenhaupt, umpire, case of Augustus C. Phillips, No. 67, Span. Com. (1871), February 27, 1882.

"On the night of the 24th February 1871 Casanova's Case. the claimant, who had just landed in Cuba, was arrested and directed to go on board the steamer plying between Cuba and New York, which he did the same night. The evidence tends to show that the Spanish authorities subsequently changed their purpose of excluding the claimant from the Island of Cuba, and that his actual departure was more due to his fears than their commands. A late writer has said, 'A nation has the right to forbid entrance into its territory of particular foreigners for political motives or motives having reference to the laws. The sufficiency of these motives is a question for the state, which alone can exercise its sovereignty in its own territory.' (Bluntschli, 382.)

"In our opinion, Spain had, under the circumstances, the right to forbid the entrance of Mr. Casanova into the Island of Cuba, and his arrest was only such as was necessary to that end."

Opinion of the Marquis de Potestad, arbitrator for Spain, concurred in by Mr. Lowndes, arbitrator for the United States, case of Ynocencio Casanova, No. 25, Span. Com. (1871), December 26, 1882.

Lynn's Case.

A claimant, a citizen of the United States, married in Cuba a Spanish subject. This lady was arrested on a charge of complicity with an insurrection, and on April 8, 1870, she was tried and acquitted, and was permitted to return to her husband. His house, however, was placed under surveillance, and it was alleged that threats were made against him by Spanish volunteers, and that warnings were given him by his friends. On. the 3d of May 1870 he suddenly and secretly left the island. When his departure became known, his creditors instituted proceedings against him, in the course of which he was declared insolvent and his property was sold. In these proceedings he was represented by a duly authorized attorney. It was contended, on behalf of the claimant, that "the Spanish

authorities, having by their conduct created suspicions and an unfavorable impression in the minds of the community in regard to him, neglected to interpose in his behalf and afford him the protection to which he was entitled, but, on the contrary, compelled him to abandon his property and to seek safety in flight."

The umpire, Count Lewenhaupt, held that "the claimant had not sufficient reason to consider himself obliged to leave Cuba on account of any act of omission or commission of the Spanish authorities," and that he was not entitled to any indemnity on account of his claim.

Case of William S. Lynn, No. 104, Span. Com. (1871), April 18, 1881.

A claim was made for damages alleged to San Pedro's Case. have been suffered in consequence of an unlawful expulsion from the Island of Cuba. It appears that the claimant was arrested on a charge of being implicated in an insurrection, and the expulsion complained of consisted in an option given him to stand his trial on that charge or to leave the island. He accepted the latter alternative, but some days before his departure the order for his expulsion was revoked. Of this fact he was duly informed. Subsequently, however, in the month following that in which the order of expulsion was revoked, he sold his property and returned to the United States.

On these facts it was held that the alleged enforced sale of his property could not be considered as having been necessitated by the order of expulsion, or by any act of omission or commission of the Spanish authorities, and that if he left on account of bad feeling toward him on the part of the inhabitants of the place in which he lived, this circumstance was not sufficient to entitle him to indemnity.

Count Lewenhaupt, umpire, case of Juan San Pedro, No. 117, Span. Com. (1871), April 18, 1881.

Case of Gowen and
Copeland.

Early in 1854 John E. Gowen and Franklin Copeland, citizens of the United States, discovered a deposit of guano on the group of rocks known as Los Monges (the Monks), in the Caribbean Sea, near the mouth of the Gulf of Maracaibo. When the discovery of the guano was made the rocks were "uninhabited and uninhabitable, there being no vegetation and no water, nor were there any visible signs to indicate that they had ever been occupied by any human beings." Specimens of

the guano sent to the United States haying proved, on analysis, to be exceptionally rich, Messrs. Gowen and Copeland made extensive preparations for removing it, and sent men, machinery, and materials, instructing their agents to take possession of the rocks, in the name of the United States, for the use and benefit of themselves. This was done in December 1854, and from that time on Gowen & Copeland worked the deposit till they were stopped in the manner now to be related.

In June 1855 the Venezuelan authorities notified the occupants of the islands that they must vacate them. They refused, or omitted to do so, but were not then disturbed. In the following September, however, some persons from Philadelphia, in the United States, who afterward formed an association called the Philadelphia Guano Company, having heard of the existence of the guano deposit, obtained a lease of the islands from the Venezuelan Government. It seems that Gowen & Copeland entered into negotiations with this company for a sublease, but failed to reach an agreement as to terms. In this posture of affairs a Venezuelan man-of-war, about the 1st of December 1855, appeared at the islands, put a file of soldiers on shore, seized the machinery, buildings, and materials of Gowen & Copeland, and expelled their manager and his men under threats of imprisonment. January 10, 1856, Gowen & Copeland entered into a contract with the Philadelphia Guano Company by which it was agreed that they should be permitted on certain terms to continue to work the deposit for a period of fifteen months. Gowen & Copeland claimed damages from Venezuela. This claim appears to have been based on the temporary seizure of their property and the expulsion of their men. It was not shown that the Venezuelan Government either appropriated any of their property or made any use of it between the date of its seizure and the renewal of work under the sublease.

Opinion of Mr. Findlay.

66

Mr. Findlay, commissioner, speaking for the commission, said that the question arose at the very beginning of the case" as to the right of Venezuela to make the seizure; and that the commission, "without going minutely into the question of boundaries, the law of headlands, and of derelict property," was disposed to place its decision "upon the simple proposition that the claimants, in taking possession of a barren rock, or group of rocks, in the high seas, unoccupied and uninhabited, and as far as the proof shows never occupied, for

the temporary purpose of removing a valuable deposit, which they were the first to discover, can not be treated as trespassers, subject to be removed by the strong hand, and to be despoiled of their possessions without redress." Whether "New Grenada or Venezuela had the better claim to sovereignty," or "to which territorial garment the fringe composed of these island rocks" might be said to adhere, was a question "much too serious and far reaching in its consequences" for the commission with its limited resources to determine. Besides, it was understood that the question of title was involved in an arbitration pending between Colombia and Venezuela. Continuing, Mr. Findlay said:

"The only question in the present case which we will dispose of is whether a wrong was done in dispossessing and despoiling the claimants in the peculiar circumstances under which they made their discovery. It is not claimed that they discovered the islands, the names of which disclose a Spanish origin, and which, in fact, had been marked down on maps centuries before, but their claim is that they for the first time set a human foot on their rocky sides with a view to reducing into possession a substance the existence of which was a secret to the rest of the world and the value of which had only been recently demonstrated. These islands were nineteen or twenty miles out at sea from the nearest coast, a gap which might almost suggest that the fringe did not belong to any government, but was waste territory of its own, not subject to any jurisdiction. The argument was made that they were in the track of commerce, and from a military point of view, either offensively or defensively, might be made strongholds for friend or foe; but admitting this, the force of which, however, was very much weakened on a closer examination of the precise location of the islands, the question that we are dealing with is not one of sovereignty or of ultimate ownership, but of temporary occupancy for a special, limited purpose, peaceable in its origin and purely commercial in its character. It is true that an attempt was made to take possession in the name of the United States, but this was a nugatory act and without significance or consequence. The United States never claimed jurisdiction and made no protest when its flag was hauled down under the orders of the captain of the Venezuelan man-of-war. The islands were occupied for the purpose of obtaining guano, and would have been abandoned as soon as this object had been accomplished.

"There was no flag flying to indicate that they were claimed by any other power. If the islands had been in the middle of the Pacific Ocean, without trees, grass, or water, and nothing but a group of barren rocks, with only a name and a place on the navigation charts, there could be but little question that

their occupation would not constitute a trespass. If this is true of islands a thousand or two thousand miles from shore, the only reason that it is not true of similar formatious twenty miles out must arise from the opportunities which spring from such proximity to the mainland. We are speaking now of an occupation merely, as distinguished from an actual appropriation with a view to sovereignty, and in the absence of exceptional circumstances we can see no reason for distinguishing between the occupation of the Monks Islands and a similar unoccupied group in the mid-Pacific. It follows from this that the claimants are entitled to be reimbursed for what they lost by the act of Venezuela in dispossessing them. What was this loss? Clearly not the guano deposit on the islands The islands were not theirs, and the guano was a part of the freehold, as much so as gold or ccal, or any other valuable deposit.

"The claimants were of the opinion that the islands belonged to New Granada, and had succeeded partially in obtaining a lease from that government when further negotiations were broken off by the unfortunate occurrences at Panama. This shows conclusively that, notwithstanding the hoisting of the United States flag and the claim of territory, the claimants did not consider that they had established title to the islands. The Philadelphia parties, on the other hand, were disposed to render homage to Venezuela as the titular lord of these possessions, and, as the result proved, were wiser than the Boston parties. But neither supposed that the mere fact of taking possession would vest an absolute title, good against the world. The guano will have to follow the ownership of the islands, and as to this, the claimants not only show no title in themselves, but admit and recognize a title in another party. The fact is they recognized the title of Venezuela, because they subleased the deposits from her lessees. It is said they were compelled to do so or lose the profit of their investment. That may be true, but their position now as parties to an international reclamation would have been much stronger if, instead of recognizing the validity of the lease to the Philadelphia company and selling out to them in effect, they had stubbornly stood on their rights and demanded indemnity for the wrong done them.

"They were to pay an export duty of five dollars and an additional sum of like amount as a royalty for the privilege of taking the guano for fifteen months, and at the end of this period, in consideration of this franchise, were to transfer the plant and all materials used,' as the contract reads, to the Philadelphia company. They were not compelled to make this bargain, and yet it is difficult to see what other arrangement could have been made without a total sacrifice of the plant as long as Venezuela held it for the purpose of aiding the lessees in consummating the agreement made with her. The testimony as to the value of this plant is very loose and unsatisfactory. We do not know of what it consisted and have r