mency, and not an impunity to him, arising from the ignorance of our ministers, in the first principles of public law, or their negligence or pusillanimity in asserting them. "7. Because nothing has been had or demanded as a reparation in damage for the enormous expence and other inconveniences arising from the confessed and unprovoked violence of the Spanish forces the enterprise against Falkland's islands, and the long subsequent delay of justice; it was not necessary to this demand, that it should be made in any improper or offensive language, but in that stile of accommodation which has ever been used by able negociators. Spain, on which her act of violence was grounded, and her offers of restitution originally made. "11. Because the Declaration, by which his Majesty is to obtain possession of Port Egmont, contains a reservation ? condition of the question of a claim of prior right of sovereignty in the Catholic king to the whole of Falkland's islands, being the first time such a claim has ever authentically appeared in any public instrument, jointly concluded on between the two courts. No explanation of the principles of this claim has been required, although there is just rea son to believe that these principles will equally extend to restrain the liberty, and "8. Because an unparalleled and most confine the extent of British navigation. audacious insult has been offered to the No counter claim has been made on the honour of the British flag, by the deten- part of his Majesty to the right of sovesion of a ship of war of his Majesty's for reignty, in any part of the said island 20 days, after the surrender of Port Eg- ceded to him; any assertion whatsoever, mont, and by the indignity of forcibly of his Majesty's right of sovereignty, has taking away her rudder; this act could not been studiously avoided, from the bebe supported upon any idea of being neces-ginning to the accomplishment of this unsary to the reduction of the fort, nor was happy transaction; which, after the exany such necessity pretended. No repa-pence of millions, settles no contest, ration in honour has been demanded for asserts no right, exacts no reparation, this wanton insult, by which his Majesty's affords no security, but stands as a monureign is rendered the unhappy æra in ment of reproach to the wisdom of the which the honour of the British flag has national councils, of dishonour to the essuffered the first stain with entire im-sential dignity of his Majesty's crown, and punity. "9. Because the Spanish Declaration, which our ministers have advised his Majesty to accept, does in general words imply his Majesty's disavowal of some acts on his part, tending to disturb the good correspondence of the two courts; when it is notorious, that no act of violence whatsoever had been committed on the part of Great Britain. By this disavowal of some implied aggression in the very Declaration, pretended to be made for reparation of the injured dignity of Great Britain, his Majesty is made to admit a supposition contrary to truth, and injurious to the justice and honour of his crown. "10. Because in the said Declaration, the restitution is confined to Port Fgmont, when Spain herself originally of fered to cede Falkland's island; it is known that she made her forcible attack on pretence of title to the whole; and the restitution ought, therefore, not to have been confined to a part only, nor can any reason be assigned, why the restitution ought to have been made in narrower or more ambiguous words than the claims of of disgrace to the hitherto untainted honour of the British flag. We "After having given these reasons, founded on the facts which appeared from the papers, we think it necessary here to disclaim an invidious and injurious imputation, substituted in the place of fair argument, that they who will not approve of this convention, are for precipitating their country into the calamities of war: we are as far from the design, and we trust much farther from the act of kindling the flame of war, than those who have advised his Majesty to accept of the Declaration of the Spanish embassador. have never entertained the least thought of invalidating this public act; but if ministers may not be censured, or even punished, for treaties which, though valid, are injurious to the national interest and honour, without a supposition of the breach of public faith in this House, that should censure or punish, or of a breach of the laws of humanity in those who propose such censure or punishment, the use of the Peers, as a controul on ministers, and as the best, as well as highest, council of the crown, will be rendered of no avail, The Declaration of the Spanish minister states that things shall be restored in the Malouine, at the port called Egmont, precisely to the state in which they were before the 10th of June. We have no doubt but a Declaration | whole and complete matter which forms more adequate to our just pretensions, this convention, together with his Caand to the dignity of the crown, might tholic majesty's recognition and execution have been obtained without the effusion of of it. blood; not only from the favourable circumstances of the conjuncture, but because our just demands were no more than any sovereign power, who had injured another through inadvertence, or mistake, ought, even from regard to its own honour, to have granted: and we are satisfied, that the obtaining such terms would have been the only sure means of establishing a lasting and honourable peace. (Signed) Richmond, Bolton, Manchester, Tankerville, Chatham, Wycombe, Craven, Boyle, Devonshire, Audley, King, Torrington, Milton, Abergavenny, Fitzwilliam, Ponsonby, Scarborough, Archer." "Dissentient' "Because, though the disavowal may be considered as humiliating to the court of Spain, the Declaration and Acceptance, under the reservation of the question of prior right, do not, in my opinion, after the heavy expences incurred, either convey a satisfaction adequate to the insult on the honour of Great Britain, or afford any reasonable grounds to believe that peace, on terms of honour, can be lasting "RADNOR." Debate on Governor Pownall's Motion respecting the late Negociation with Spain, concerning Falkland's Island.] March 5. Governor Pownall brought forward the consideration of the consequences of the late negociation and treaty with Spain. He spoke as follows: * As his Majesty has been pleased to lay before this House the king of Spain's recognition of the Convention signed at London, containing his orders for the execution thereof, by the delivery of Port and Fort Egmont, I must beg that that paper be read, after first reading lord Weymouth's letter to Mr. Harris, dated Oct. 17, 1770. The papers being read, he continued, As the matter of the late negociation could not be said to be complete until this paper was received, I beg leave now, before I enter into my argument upon this business, to state in one point of view the * From a pamphlet published in 1771, entitled "Two Speeches of an Honourable Gentleman on the late Negotiation and Convention with Spain." The Acceptance of lord Rochford understands and recites the Declaration as containing terms of a very different and more extensive nature, viz. that prince Masserano does engage that all things shall be immediately restored to the precise situation in which they stood before the 10th of June. His Catholic Majesty, in his order for the execution of what he calls this convention, recites, that the engagements contained in it, are for the reposition of the in which it stood before the 10th of June: island of Great Malouine, in the situation of Port and Fort Egmont, with all its amyet his orders extend only to the restoring munition, stores, and appurtenances, just in the terms in which a lawyer would Convey a cottage; so that if our court understood that this convention went to engagements for the restoring Falkland's the convention is not by these orders fulisland, which the Spanish minister offered, filled and executed. This fluctuation of terms and proceedtrue spirit but the wisdom of his Majesty's ings in the negociation marks not only the orders, (which lord Weymouth's letter declares his Majesty would invariably adconditions should be accepted; and yet here to) that no convention under any Declaration and Acceptance, is, both in the act contained in the two papers, the by two contracting parties, under condiname and thing a convention entered into tions ascertained by a protest as to the to be executed by his Catholic majesty. question of right, and convening in a point His Catholic majesty executes it (putting his own interpretation upon it) only in part, by giving those orders which have been now read to you. The preamble to the order recites, that the convention engages for the reposition situation in which it was before the evacuor reinstating the island in the precise ation; and yet the orders given are for the restoring of the fort and port only. The precise situation in which our court must understand it to have been, was, that our establishment extended to the pos session, and the sovereignty of the island. The fort therefore should have been restored under that idea; but it is restored under an idea exclusive of both possession and sovereignty. The convention, by the protest inserted in it, considers the question of right as a matter standing referred, to be hereafter discussed. And the point in which the contracting parties convene at present is, to put all things in such a situation, that they may come to that question, precisely as if no act of hostility had been done. See then how the claim of each party . stood before that act of hostility, which drove us from our possessions. We claim We claim a right, from priority of discovery and occupancy. In the exercise of this, his Majesty makes a settlement, and affixes the Sovereignty of the imperial crown of Great Britain to it. The Spaniards on the other hand claim under a Papal grant all lands and islands discovered, or that shall be discovered, within general indefinite descriptions of parcels of the globe. If therefore the island is not restored to us under those actual circumstances of possession and sovereignty as we claim it, the supposed possession and sovereignty of the Spaniards, assumed in virtue of an ideal jurisdiction derived from the Pope, must take place; and the question is prejudged. On the other hand, by reinstating the crown of Great Britain in such possession and sovereignty as it claims to have held, protesting the meanwhile that such reposition or reinstating shall not affect the question of the actual right, as it shall or may be made good, the question would still remain open. But if it shall prove in the event, that the Spanish court will not come to the question of right in this view of it, and that we cannot join issue in the other without betraying our rights, then this business will train on just as all negocia tions have done, and will end just as all such conventions have ended, not in securing peace, but in giving future occasion for war. Before I enter into the further stating of this business, I will beg leave to recapitulate how far this House hath already gone in its deliberation on this matter. His Majesty having been pleased, when the convention was entered into, to lay * Non ut possideret, sed ut in possessione esset; est autem longe diversum: aliud est enim possidere, aliud in possessionem esse. Pomponius in Digest. 44, lib. 2, § 10. before this House the two parts of which it consisted-the Declaration of the Spanish minister, and the Acceptance by which his own minister declared he had received satisfaction; his Majesty was then pleased to submit to the consideration of this House, the satisfaction which he had accepted, by the disavowal made, and restitution promised on the part of the Spanish minister. The honour of the imperial crown of Great Britain being reposed in his Majesty's hands, it is the duty of his faithful subjects to follow his sense of it. They did so unanimously, when he said that it was deeply affected; and they do most anxiously hope that his Majesty may not be disappointed, while he thinks that he has received satisfaction on those points. A majority of this House, in which, according, to the forms of parliament, the whole House is included, went some steps farther, and expressed their entire satisfaction on the conclusion of this matter: a considerable body of gentlemen, not think. ing that they had the opportunity given to them of examining the facts and the nature of the negociation, not consider. ing the business as then concluded, were not able to conceive that satisfaction, which others felt and expressed. That matter being now decided, and peace between the crowns of Spain and Great Britain being now formally restored; and standing as it does, and as it must do for the future on the basis of this convention, the execution of which is laid before us; it becomes the duty of every member of the community, of every member of this House, to unite their aid and assistance, and advice also where that shall become proper, to give stability, security, and permanency to this foundation. If there be any thing which appears suspicious or defective, either in the ground on which it stands, or in the materials of which it is composed, it becomes a consequence of that duty, to point out that defect, so that it may be repaired before it is too late. It is in this view that I shall offer the consideration of some matters to the House; and it is under these hopes, that with the leave of the House, I shall conclude with a motion that will point the necessity of future attention, in consequence of past neglect. By the law of nations, all sovereign states are reciprocally responsible to each other for all delegated and subordinate powers deriving from or existing under discovered; except so far as they graciously condescend to admit the Portuguese title to a moiety of this spiritual fee. It has been found necessary, I say, in order to meet and obviate this absurd claim, (exerted in defiance of the rights of mankind, and of the law of nations) that what would be in all other treaties a preliminary, should stand actually articled and stipulated in every treaty which we have had with that court, from the year 1667, to the last peace of Paris. In the treaty of Madrid 1667, article 3d, you will find it precisely stipulated and agreed, that if any matters of dispute, or any supposition even of injustice or injury shall arise, it shall not be carried to force between the subjects of the sovereigns, but shall be referred to the decision of the sovereigns themselves. their respective sovereignties; they are bound to restrain those subordinate powers, from commencing hostilities on their own opinion, or of their own motion, on any occasion whatsoever, whilst their sovereigns continue in league and amity without this, peace would be a baseless fabric, a mere vision; or if it had any existence, would exist as a snare to those who acted under it with good faith. We may have heard of treaties with hordes of Tartars or tribes of Indians; under which, individuals think themselves no further bound than as they personally accord; but without this preliminary ground, there cannot be even a supposition of such treaties existing be ́tween civilized states. Where one sovereign, acting with good faith, under this principle, is leagued with another sovereign who permits his subordinate governors to act as if unrestrained by the same principle, the subjects of the former would be precluded from using their own natural power of defence; would be denied that protection of their own government which every subject has a right to expect; and unarmed, defenceless, and unprotected, would be betrayed to the caprice and violence of the subjects of the other state. Under such a predicament no rights of possession could be exerted, no actual possession secured, no settlements made, no posts taken for the protection of such rights, possession, and settlements. In the treaty of Madrid of 1670, which was concluded for accommodating differences, preventing depredations, and settling peace, between the crowns of Great Britain and Spain; that peace is particularly guarded, that no acts of hostility shall be suffered to be commenced either by any individuals, or any subordi nate powers holding under those sovereigns without such violators of the treaty then made being considered as criminals responsible for a crime; bound not only to make restitution and reparation, but to be punished as criminals, according to the nature of the offence; in short, without being considered in every instance as pirates, and not as under the protection of their sovereigns. The treaty of Utrecht confirms these two treaties, and makes the like provisions. The treaty of Madrid, of 1721, particularly guards against the contravention or breach of the treaties of peace and commerce, by any of the governors of Spain presuming to act upon their own interpretation thereof. This principle is, and of necessity must be the preliminary ground of all treaties between civilized states: but from the special and peculiar situation in which Spain stands with other European nations, relative to its claims in America; from the actual state of war in which the subjects of Spain and of other European nations were engaged in America, prior to such treaties; it became absolutely necessary that this principle should not only be con- The treaty of Seville, in 1729, does in sidered as the preliminary ground of like manner particularly provide against treaty, but should be inserted as an actual all acts of disturbance and hostility inarticle in the body of all treaties with those parts, under the most rigorous proSpain, respecting rights and possessions inhibition for preventing the same. And the America. It was found necessary, in order to meet that claim of possession which they set up to the dominion of South America; that claim of right which they set up to an exclusive navigation in the South Seas; in short, to the dominion which they claim over every thing to the southward of the equator, even of land, seas, and territories not yet treaty of Paris, in 1763, specially stipulates against any act of hostility being committed by the subjects of the contracting powers, for any cause, or under any pretence whatsoever. I come now to consider the manner in which, with the best good faith, his Majesty and his ancestors have ever executed those treaties and stipulations; in which, with the strictest honour, they have ever governed themselves by the law of nations. In all delegations of power and government, which his Majesty or his ancestors have made to be held, enjoyed, and exercised under charters, there is an express clause whereby the crown of Great Britain binds itself to all Christian princes and states, that it will consider any persons acting under that subordinate authority, who shall commit any violence or hostility, to be out of its protection, until full reparation, to the satisfaction of the injured party, shall be made. In all delegations of power, which his Majesty or his ancestors have made, to be held and exercised immediately under his commission, the powers granted in that commission are restricted, (by instructions agreeable to those articles of peace) against the issuing out commissions of marque and reprisal, or going into any acts of hostility, without the special command of the crown. Matters standing thus in right, upon the law of nations in general, by particular and specific treaties; and thus executed by the good faith of Great Britain, uniformly at all times maintained; I beg to turn the consideration of the House, to examine how it now stands in fact, on the basis of this late negociation. The court of Spain has assumed, and does maintain, a right to establish what they call their general laws of America. These laws are founded on the pretensions which they make to a right of dominion to the continent of South America-to the exclusive navigation of the South Seas and to all lands, islands, and territories, that shall be found therein, or that surround the same.-In short, to the whole southern globe, westward of their line of demarkation. Upon this supposition, they describe in their instruments of government these their supposed dominions as extending over the whole expanse of those climes. They assume it as a fact, that they are in equitable and legal possession of these imaginary and undefined, nay, even not yet discovered possessions; and that their jurisdiction, as contained in their commissions, extends to these indefinite boundaries. For the exercise of this metaphysical sovereignty they have formed laws which they call the established laws of America; and conformable to this jurisdiction and those laws, they give to their governors general powers and instructions of government. While these pretended jurisdictions, these laws, stand maintained in right, and justified in authority; and whilst the common right of mankind, the law of nations, is thus superseded and repealed in those parts; all attempts of discovery in those regions of the globe-all extensions of commerce-all exertions of any right arising from discovery and occupancy-all posts taken-all settlements made, by ourselves or any other European power, must be considered by that court as usurpation on their established rights; as intrusion upon their actual possessions; as invasions of their territories and dominions: and as therefore, the general authorities of the commissions which they grant, extend to all these claims and pretensions, and to the exercise of this supposed jurisdiction, their governors are, by the oaths of their office, and by their general instructions, under obligation to oppose all usurpations; to resist all such intrusions; to repel all such invaders; and to consider the exercise of the common rights of mankind in those regions where they (the Spaniards) claim this exclusive jurisdiction, as acts of criminality; and the actors as criminals. It is under these pretensions, they are instructed to consider and to examine all ships sailing in those parts without a Spanish licence, as contraband and interlopers; and to prohibit them, both in right and by act, from navigating in those parts of the globe. It was on this ground that Don Buccarelli, the governor of Buenos Ayres, committed hostilities against his Majesty's rights and possessions in Falkland's Island; and it was on this ground that the British flag was most ignominiously insulted. The Spanish governor, directly contrary to special treaties, refused to refer the matter to his sovereign; and maintained his right to consider his Britannic majesty's servants acting immediately under his commission, and exerting a right of possession under the sovereignty of Great Britain, as invaders; and to treat his Majesty's ships of war under the British flag, lying within the possessions, as interlopers. Thus stands the act of the Spanish governor; done under pretended established laws of America; under the authority of the Spanish commission; under the general instructions. The Spanish court did not only refuse to disavow this act, but has in the late negociation justified it on these very grounds. What they, upon the ground of justice, maintain they had a right to do in general, they condescend, upon the ground of favour, to acknow |