* *

*

Government, it is a matter wholly between them and their own Government, and in no way concerns Venezuela. Venezuela is not to be stripped of her rightful possessions because the British. Government has erroneously encouraged its subjects to believe that such possessions were British. Venezuela's claims and her protests against alleged British usurpation have been constant and emphatic, and have been enforced by all the means practicable for a weak power to employ in its dealings with a strong one, even to the rupture of diplomatic relations. It would seem to be quite impossible, therefore, that Great Britain should justify her asserted jurisdiction over Venezuelan territory upon which British subjects have settled in reliance upon such assertion by pleading that the assertion was bona fide without full notice of whatever rights Venezuela may prove to have." (ib., p. 308.)

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"In the opinion of this government," continued Mr. Olney, the proposals of Lord Salisbury's despatch can be made to meet the requirements and the justice of the case only if amended in various particulars.

"The commission upon facts should be so constituted, by adding one or more members, that it must reach a result, and cannot become abortive and possibly mischievous. ·

"That commission should have power to report upon all the facts necessary to the decision of the boundary controversy, including the facts pertaining to the occupation of the disputed territory by British subjects.

"The proviso by which the boundary line as drawn by the arbitral tribunal of three is not to include territory bona fide occupied by British subjects or Venezuelan citizens on the 1st of January, 1887, should be stricken out altogether, or there might be substituted for it the following:

"Provided, however, that, in fixing such line, if territory of one party be found in the occupation of the subjects or citizens of the other party, such weight and effect shall be given to such occupation as reason, justice, the rules of international law, and the equi

ties of the particular case may appear to require." (V. C., vol. iii, p. 309.

The suggestions made by Mr. Olney were substantially adopted. The proposal of Lord Salisbury, providing that the tribunal should not have power to include as territory of Venezuela any territory which was bona fide occupied by subjects of Great Britain, was stricken out. The commission of four was dropped, and the arbitral tribunal was changed from three to five. No change was made in the date as of which the territorial rights of the contending parties were to be ascertained.

The date as of which the true boundary line should be drawn was a vital fact, and its importance could not have been overlooked by either Lord Salisbury or Mr. Olney. It must be ascertained as of some particular date. All the facts bearing upon the rights of the parties as to that date must be investigated and the facts found in order that the true line may be ascertained. This date might have been: first, that of the acquisition by Great Britain of British Guiana, namely, 1814. The investigation would then involve the claims and the acts of two Governments not parties to this Treaty, namely, the Netherlands and Spain. Under such an inquiry, no act or fact arising subsequently to 1814 would be of the slightest materiality or relevancy. All the investigation would be directed to the history of the settlements made by the Netherlands of the territory in question, the character of the government which they had established, the extent of the territory over which they exercised jurisdiction, the nature, character and extent of their settlements; in short, every act or fact tending to prove the title of the Dutch to the territory in question would have been pertinent and essential to the ascertainment of the true boundary line, as showing the character and extent of the Dutch possession, which it asserted adversely to the prior title of Spain.

Or, second, the date of the inquiry might have been fixed as the date of the Treaty. Had the commission been required "to investigate and ascertain the extent of the territories belonging to

or that might lawfully be claimed by British Guiana or by the United States of Venezuela respectively, at the date of this Treaty," a different and much wider field of investigation would have been opened, and other and different facts would require to be investigated, ascertained and determined. The whole history of this territory for nearly a century subsequent to 1814, all the acts and controversies, the correspondence, claims, assertions, denials, and acts of jurisdiction of the two countries respectively, would have been the subject of investigation, and would largely have constituted the basis of determination.

In this correspondence Lord Salisbury nowhere suggests that the boundary line should be ascertained as of the date of the Treaty of Arbitration. The only circumstances arising subsequent to 1814 which are referred to as having a bearing upon the question are stated in the proviso originally suggested, as follows:

"Provided, always, that in fixing such line, the tribunal shall not have power to include as the territory of Venezuela any territory which was bona fide occupied by subjects of Great Britain on the first of January, 1887."

This proposition was rejected, and at Mr. Olney's suggestion a rule was inserted in its place, which became Rule (c) of the Treaty, as follows:

"In determining the boundary-line, if territory of one Party be found by the Tribunal to have been at the date of this Treaty in the occupation of the subjects or citizens of the other Party, such effect shall be given to such occupation as reason, justice, the principles of international law, and the equities of the case shall, in the opinion of the Tribunal, require.”

Thus, every question, both of fact and of law, involved in the question of Dutch and Spanish rights in regard to the ownership of all portions of the disputed territory at the time of the cession of Guiana to Great Britain, was submitted to the ascertainment and determination of a single tribunal, with the express provision that the rights of ownership thus established in one of the parties. over any territory should not be affected by the fact that such ter

ritory had subsequently been occupied by the subjects or citizens

of the other.

5. THE POSITION ADOPTED BY GREAT BRITAIN IN THE

COUNTER-CASE.

Finally, the foregoing contention is expressly admitted in the British Counter-Case. At page 114 her position is stated as follows:

"Great Britain denies that her present occupation (extending to the Schomburgk line) does in fact include any greater extent of territory than. was occupied or politically controlled by the Dutch and by Great Britain since her succession to the Dutch title."

This important admission of the British Case shows the reason why Great Britain was willing to take the line of 1814 as the boundary to be fixed and to eliminate any acts subsequent to that date from the controversy, except as provided in Rule (c) That Great Britain should have agreed to the establishment of the line of 1814 was quite reasonable, in view of the fact that she does not now put forward any prescription based upon the extension by her of that line. It was not claimed in the diplomatic correspondence that led up to the Treaty, nor is it claimed in the British Case that Great Britain extended the line of Dutch occupation to any territory that she might now prescribe for under Rule (a) of the Treaty. It was also well known to Great Britain that the Agreement of 1850 cut off any possible claim by her to such a prescription. The British settlers, in whose behalf Lord Salisbury's solicitude was excited, had not entered the disputed territory before 1880, and, so far as their case might be regarded as matter of international consideration, it was provided for in Rule (c). It was because, as Great Britain herself states, her present occupation, meaning thereby her occupation not only up to the date of the Treaty, but up to the very filing of the Case, does not include any greater extent of territory than the Dutch occupied at the time of the cession. This is the fundamental fact in the interpretation of this clause of the Treaty-that British occupation of the present

day extends no farther than the Dutch occupation which preceded it. Upon that statement, made solemnly in her own Case, Great Britain stands or falls. The fact once admitted that the present occupation is not in excess of the occupation of 1814, no reason can be shown for admitting evidence as to occupation since that date.

IV. THE THREE RULES OF THE TREATY.

The Treaty, having stated the general subject-matter of the arbitration as being the determination of the boundary line in accordance with the extent of the territories of Spain and the Netherlands respectively in 1814, proceeds to lay down three Rules, which, as well as the appropriate principles of international law not inconsistent with such Rules, are to govern the decision of the Arbitrators. Article IV is as follows:

"In deciding the matters submitted, the Arbitrators shall ascertain all facts which they deem necessary to a decision of the controversy, and shall be governed by the following Rules, which are agreed upon by the High Contracting Parties as Rules to be taken as applicable to the case, and by such principles of international law not inconsistent therewith as the Arbitrators shall determine to be applicable to the case:

RULES.

"(a) Adverse holding or prescription during a period of fifty years shall make a good title. The Arbitrators may deem exclusive political control of a district, as well as actual settlement thereof, sufficient to constitute adverse holding or to make title by prescription.

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"(b) The Arbitrators may recognize and give effect to rights and claims resting on any other ground whatever valid according to international law, and on any principles of international law which the Arbitrators may deem to be applicable to the case, and which are not in contravention of the foregoing rule.

"(e) In determining the boundary-line, if territory of one party be found by the Tribunal to have been at the date of this Treaty in the occupation of the subjects or citizens of the other Party, such effect shall be given to such occupation as reason, justice, the principles of international law, and the equities of the case shall, in the opinion of the Tribunal, require."