for damages sustained by German citizens during the "present Venezuelan civil war"; and yet by a disgraceful subterfuge he decided that the "present Venezuelan civil war" meant the Matos revolution only, and therefore damages inflicted by other troops operating concurrently in other parts of the country were to be suffered without redress!

XI. COBHAM CASE

Umpire Plumley had a "tender regard for the claimant's rights in this matter," for he so confesses (see Ven. Arb., 1903, p. 410). Let us therefore read the facts, as found by him, and his judgment thereon:

"The Commissioners having failed to agree in this case, it has come to the umpire for his determination.

"The evidence shows two distinct instances of losses to property and injury thereto and of gross indignities toward, and injuries of, the person of the claimant.

"Concerning the instance of October 26, 1902, resting upon the acts of Colonel Guillermo Aguilera, Captain Pedro Diaz, and their fifteen soldiers, constituting a part of the army of the revolution libertadora, it is impossible to charge responsibility upon the national government against which these men were at war and over whose conduct it had lost all control. This part of the claim must be disallowed, in accordance with the umpire's opinion of justice and equity and in accordance with his previously expressed judgment before this tribunal. Cruel and unjust as such conduct must appear to all right-minded men, proper reparation is not to be found in mistakenly and therefore wrongfully charging it upon the government.

"Concerning the acts occurring on October 14, 1902, and testified to by H. Fischbach and Ramon Guerra and five others, if these were perpetrated by soldiers and officers forming a part of the army of the government, it is to be regretted that such fact is not clearly in proof. The charges involved are all of too grave and compromising a character to be accepted without clear, definite, and convincing evidence. As the testimony stands, it may or may not mean government troops. The government must not be held responsible for such a serious outrage on property and personal liberty by evidence in which upon this essential fact the language is distinctly ambiguous and indefinite. The injuries to the claimant were incurred in and because of his resolute efforts on behalf of his employer's property; and his personal bravery and his loyalty to his trust incite the umpire to give him all the protection within his power, and had he warrant therefor from the evidence, he would be glad to award him ample indemnity. The ambiguity of the claimant's evidence in that part of it which names the troops who did the injury is such that it would not justify the umpire in making an award against the government in his behalf.”

Later, as a mark of Mr. Plumley's "tender regard," this victim was awarded one hundred English pounds sterling. His claim was for 18,180 bolivars, about $3600. The damages inflicted by the army of the "revolution libertadora" were entirely disallowed, and the

paltry sum of $485 is given him as compensation for losses of seven or eight times that amount, to say nothing of the personal indignities suffered.

XII. THE FABIANI CASE

The Fabiani claim was for 9,509,728 bolivars, or about $1,900,000. It was wholly disallowed by Mr. Plumley.

I am not able to devote the space necessary to a full exposition of this celebrated controversy. The reader who cares to study it in detail is referred to Moore's "International Arbitrations and to Ralston's "Report of the French Venezuelan Claims Commission,"

1902.

Antoine Fabiani, a French citizen, had claims against Venezuela amounting to 46,994,563.17 francs, growing out of outrages and denials of justice by the authorities of Venezuela, extending from 1878 to 1893. France and Venezuela concluded a protocol on February 24, 1891, by which the case was referred to the arbitration of the President of the Swiss Federation. The arbitrator was to decide: "Whether, according to the laws of Venezuela, the general principles of the law of nations and the convention in force between the two contracting powers, the Venezuelan government is responsible for the damages which M. Fabiani says to have sustained through denial of justice.

The Swiss arbitrator decided that the words "denial of justice applied exclusively to wrongs by the judiciary department of the government. He therefore held that he had no jurisdiction to decide any claims having their origin in executive outrages, or damages inflicted by the legislative or military power of the government. This, of course, was an exceedingly narrow view to take of the meaning of the words "denial of justice." It would seem that these words should be construed to cover any wrong or injustice suffered at the hands of any department of the government.

As most of the damages to Mr. Fabiani had been caused by executive usurpation and at the hands of the military, the redress granted him by the Swiss arbitrator was very small, — less than one tenth of his total claim.

A new protocol was made between France and Venezuela, February 19, 1902, and claims of Fabiani amounting to 9,509,728.30 bolivars against Venezuela were submitted to the Commission, being a portion of the claims disallowed by the Swiss President. The Venezuelan Commissioner denied the claims on the ground that they were res judicata. The French Commissioner insisted that, as the Swiss arbitrator had refused to pass upon the claims at all, because of alleged lack of jurisdiction under the protocol of 1891, therefore they were in full vigor; and on a disagreement of these

Commissioners the case was referred to Mr. Plumley as umpire (see Ralston's Report, Venezuelan Claims Commission, 1902, pp. 81–184).

The decision of Mr. Plumley in this case is unique. He holds "that no jurisdictional questions were before the Swiss arbitrator, none were urged by either party, and none in fact were determined; that all claims of Fabiani were in fact submitted by the protocol to the decision of the Swiss arbitrator, and all were in fact decided by him.' This declaration by Mr. Plumley seems extraordinary in view of the very precise and definite statement made by the Swiss arbitrator in his judgment, as follows:

"Venezuela does not incur any responsibility, according to the agreement, on account of facts foreign to the judicial authority of the defendant State. The claims which the petition bases upon faits du prince, which are either changes of legislation, or arbitrary acts of the executive power, are absolutely withdrawn from the decision of the arbitrator, who eliminates from the procedure all the allegations and means of proof relating thereto."

My own opinion is that the Swiss arbitrator was grievously mistaken in his interpretation of the meaning of the words "denial of justice" as used in the protocol, and limiting their application to wrongs committed by the judiciary. This interpretation was strenuously opposed by the French government, while the cabinet of Caracas declared as strongly in support of it, claiming that damages inflicted by other departments of the government were not included in the terms of the protocol, and arguing that "it is absurd and monstrous, from a judicial point of view, to maintain that the party signatory of an agreement, or one of them, have had in view to settle a question outside of the agreement."

In view of this plain decision of the arbitrator, and this unequivocal argument by the respondent government, how is it possible for Mr. Plumley to make the statement above quoted from him?

To follow the tortuous processes of this judge's mind as displayed in this lengthy decision could only interest a student of psychology. Mr. Plumley holds, for instance, that when two governments enter into a protocol touching a given matter, a compromise is thereby effected which shall make any award whatever final and conclusive upon the whole of the original controversy. Where he finds any warrant in law or reason for such a preposterous doctrine, is not stated. It has heretofore been supposed that a contract is limited to the subjects comprised within its express terms; that if there are matters or things not comprehended in such contract, they may be made the subject of additional or future contracts; that because a government makes a protocol on one subject, it is not thereby precluded from making other protocols on other subjects.

Mr. Plumley says, speaking of the governments, parties to a protocol:

"Concerning the meaning, form, and effect of their agreement, they may essentially and antipodally disagree, but that they have agreed that their contention is all included within the terms of the protocol, is not, and never can be, a matter of disagreement."

Is there a sentence or a word or a syllable in the protocol in question which would give the umpire any pretext for such a doctrine as this? Absolutely none.

Pursuing his line of argument, Mr. Plumley holds that the whole Fabiani controversy was obliterated by the decision of the Swiss arbitrator under the protocol of 1891; that those portions of the claims which he refused to consider, as being outside the protocol, died a natural death, or were extinguished by some sort of hocus-pocus, and could not now be resuscitated, even by the new protocol of 1902. Indeed, he was seriously worried and vexed to know how this case ever got before him; but he concluded that bringing it before this tribunal was wholly the work of an individual, and that France had not at all passed upon the claim. The umpire came to this strange conclusion, notwithstanding the fact that the case was strongly presented by the French government, and made the basis of two lengthy and powerful arguments by the French Commissioner.

CHAPTER VI

INDEMNITY CLAIMS FOR OUTRAGES AGAINST
FOREIGNERS IN TIMES OF REVOLUTION

S all Latin America suffers from violent revolutions, occasional in some countries thereof, perennial in others, let us consider what protection or redress, if any, foreign residents or property owners may have against or for the spoliation and destruction that follow in revolution's train.

Latin-American revolutions are sui generis. They never originate among the masses, the peons, who know little of the government and care even less than they know. The peon soldiers serve as an unthinking attachment to their immediate leaders, and know nothing of any "principles" involved. They fight as readily on one side as another. As for peons generally, those who are criminals gravitate naturally to the army, but the vast majority go to war only when "recluted."

Revolutions, then, always start among the "generales" and "coroneles." A revolution's only raison d'etre is the rapacious longing of a group of military Jefes to get control of the custom houses, and to become intrenched in a position whence they can levy extortion and blackmail upon business enterprises. Each new leader, with his blatant camp-followers and sycophants at his heels, professes a causa; and his "revolution" will be given a high-sounding name, from which the neophyte might surmise that principles were at stake, or that a good administration lay in the balance, or that the vociferous professions of patriotism were grounded in some worthy purpose. Men unversed in the Latin-American temperament might attribute at least a grain of good faith to some of these uprisings; but the naked truth is that no beneficial reforms are being contemplated, no patriotic purposes are being cherished, and that every revolutionary movement is but a contest between different flocks of the same feather, one gang of gambling, murdering, looting, blackmailing swashbucklers on the outside trying to dispossess a similar gang on the inside, with the custom houses and other fat pickings as the stakes.

During these turmoils foreigners are placed in a desperate position. They have as much to fear from troops of the "ins" as from those of the "outs." In most sections they are so few that they are unable to defend themselves against the raids of either side.