by Venezuela in the Treaty of Arbitration is concerned, no extension of Dutch settlement or control beyond the boundaries heretofore named has brought the Dutch occupation during this period within the terms of the rule, and that the boundaries existing in 1814 are, therefore, the same as those existing in 1648.

No question as to the boundary arose between Venezuela and Great Britain until 1841, when the British Surveyor Schomburgk set up boundary posts along a certain line, afterwards known as "the Schomburgk line," upon territory to which Venezuela claims title. Upon the protest of Venezuela, Great Britain disclaimed any intention of asserting dominion by the placing of the posts, and removed them. A negotiation between Lord Aberdeen and Señor Fortique thereupon took place in reference to the boundary, which, however, came to no result.

As to the period from 1814 to 1897, Venezuela contends that, under the terms of the Treaty by which the Arbitrators were directed to "investigate and ascertain the extent of the territories belonging to, or that might lawfully be claimed by, the United Netherlands or by the Kingdom of Spain respectively at the time of the acquisition by Great Britain of the Colony of British Guiana," the consideration of acts performed by Great Britain subsequent to this period is excluded, in so far as the question of establishing the title by adverse holding is concerned.

The apprehension of attempts to occupy the territory in dispute led, in 1850, to an exchange of notes between the two parties, embodying an agreement on the part of each not to occupy or encroach upon the territory in dispute. Charges have been made on one side or the other of violations of the agreement, and, in consequence of Great Britain's refusal to withdraw her stations and officials from the disputed territory, diplomatic relations were broken off by Venezuela in 1887. The agreement has never been abrogated, however, and was appealed to by Great Britain as late as the year last mentioned.

Negotiations have from time to time been attempted in reference to the boundary, in the latest of which, that in 1893, Great Britain laid claim not only to the territory bounded by the Schomburgk line, but to a vast region to the west of it, including territory which had been occupied by the Spanish settlements of the eighteenth century. These negotiations have proved fruitless.

During the last twelve years settlements have been made in the disputed territory under the authority of Great Britain, lands have been allotted, plantations established, numerous police stations and Government offices have been erected, and an enormous revenue has been derived by the Colonial authorities from the royalty on gold mining.

CHAPTER II.

THE TREATY OF ARBITRATION.

Before proceeding to the consideration of the facts which are made, by the Treaty, the subject of inquiry in the present controversy, it is necessary to examine the provisions of the Treaty itself.

I. THE PURPOSE OF THE TREATY.

The purpose of the Treaty of Arbitration entered into by and between the Governments of Great Britain and Venezuela is stated in the preamble as follows:

"Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and the United States of Venezuela, being desirous to provide for an amicable settlement of the question which has arisen between their respective Governments concerning the boundary between the Colony of British Guiana and the United States of Venezuela, have resolved to submit. to arbitration the question involved."

II. THE QUESTION IN CONTROVERSY.

The duty imposed upon the Tribunal is stated in Article I of the Treaty as follows:

"An Arbitral Tribunal shall be immediately appointed to determine the boundary-line between the Colony of British Guiana and the United States of Venezuela."

The first point to be noticed in the Treaty is that the question in controversy, as established both by the preamble and by Article I, is "to determine the boundary-line between the Colony of British Guiana and the United States of Venezuela." This fact is of prime importance. What is to be determined is the boundary line, and the boundary line between two States. It is a single line. The States are recognized as coterminous. The territory in question is territory that belongs either to one or to the other. There are not two boundary lines to be fixed. There is no inter

mediate stretch of territory between the two States which belongs to neither. The boundary is a line which marks not only the frontier of one, but the frontier of the other.

This statement of the question in controversy is in accordance with the history of the dispute. From the time the question of frontiers first arose by the confirmation of the Dutch title to what they "held and possessed" in 1648, it has been a question of a boundary line between two coterminous States. It has never been regarded otherwise by either the present contestants or by their respective predecessors in the title, Spain and the Netherlands. There never has been a time when either party admitted or in any way implied the existence of an unappropriated belt of territory between them. Nor has any third party ever suggested the existence of such a belt.

The British Counter Case, however, ignoring the fundamental article of the Treaty that the question to be decided is a single boundary line, and that the territories of the parties to the Treaty are thereby recognized as coterminous, advances an extraordinary proposition, of which no intimation is conveyed by the Case, as to the acts of Great Britain during the present century as a foundation for British territorial claims. It states (p. 108):

"Moreover, there has been nothing to prevent the extension of British settlement and control if the regions into which such extension was made were at the time lying vacant. Territory added to the British Colony by such extension cannot be awarded to Venezuela, however recent the British possession may have been."

The meaning of the above passage depends entirely upon the significance of the word "vacant." If by that word is meant merely unoccupied by settlements," no more extravagant pretension was ever made as to the right of territorial extension. It would amount to saying that any State may extend its settlement and control into adjoining regions which were unoccupied by actual settlement, irrespective of any question of title to those regions. It would mean, for example, that the United States

might, by means of settlement and control, extend the boundaries of Alaska, or even of the States lying on its northern frontier, by the mere encroachments of settlers under its political control into the neighboring territory of British Columbia, on the ground that "the regions into which such extension was made were at the time lying vacant." It is an attempt to make frontiers dependent not upon title, but upon settlement; and if such a theory were correct, no State would be safe from encroachment unless its frontier territory was populated throughout its whole extent. If, on the other hand, by the words "lying vacant," as used in the above passage, it is meant, "not under any claim of title by a civilized State," then the proposition has no application to the present controversy, unless, at the time of the encroachments, there was a region of territory, intermediate between Venezuela and British Guiana, which belonged to neither; which was under no claim of title by any civilized State; or, in fine, which was terra nullius.

The Counter-Case, however, leaves no doubt that of the two meanings above suggested the latter is the one intended to be conveyed. It makes the statement, on page 114:

"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. The only change has been that in the last fifteen or twenty years her occupation of the outlying districts has been marked by more complete political administration. But even if that were not so Her Majesty's Government would be entitled to retain the whole territory up to the Schomburgk line, on the simple ground that at the date of the Treaty of Arbitration they were in possession, and that the territory in question cannot be shown to have ever belonged either to Spain or Venezuela." (B. C.-C., p. 114.)

The above passage makes it clear that in the previous citation the regions that are referred to as "lying vacant" were regions that belonged to nobody. The passage lays down three propositions: