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," and "determine the boundary line between" British Guiana and Venezuela. In deciding the matters thus submitted, the Tribunal was to "ascertain all the facts" which it might deem necessary to a decision of the controversy, and to be governed by "such principles of international law," not inconsistent with certain Rules agreed upon, as it should deem applicable to the case. The "Rules" were as follows:

"(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."

(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."

"(c) 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."

Such was the agreement. It was some time before Venezuela could be induced to fully accept these terms. The Boundary Commission, which had been tacitly recognized by Great Britain, was still intact; and Venezuela preferred to await the final result of its investi

gations, and to abide by its decision, whatever that might be. Moreover, she did not quite relish the appearance of being ignored; for neither the government at Caracas, nor its accredited agent in Washington, had been very closely consulted as to the terms, and she naturally objected to the fifty years' period of prescription. However, when it was given out semi-officially by the Secretary of State (Mr. Olney) that the Boundary Commission would be dissolved, and that Venezuela could hope for no better terms, the agreement was embodied in the Treaty of Arbitration of February 2, 1897, the ratifications of which were duly exchanged at Washington on the 14th of June following.

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CHAPTER XXV

THE AWARD BY THE ARBITRATION TRIBUNAL OF 1899

I

N the two preceding chapters, we traced the Anglo-Venezuelan boundary dispute in Guayana from its remote origin, early in the seventeenth century, to the date of the treaty of February 2, 1897, whereby the whole question was to be referred to a court of arbitration. It is now in order to review the result of the proceedings of that tribunal, as announced in its final award of October 3, 1899, and to ascertain in how far its decision may be in accord with the conditions of the treaty, or warranted by the law and the facts in the case.

But first, in order to a clear understanding of the subject, let us briefly consider the unique character of the tribunal itself, and the conditions and limitations under which it entered upon its duties.

By the terms of the treaty, the tribunal was to be something of a novelty in the history of international affairs. It was not to be a commission composed of plenipotentiaries invested with diplomatic functions; nor was it to be an arbitral commission in the generally accepted sense. It was to be an international court of special judicature, composed of five jurists.1 Two of these were to be chosen on the part of Great Britain, two on the part of Venezuela, and the fifth

1 Art. ii. Tr. Feb. 2, 1897.

(who was to be president of the tribunal) was to be selected by these four, or, in the event of their failure to agree, by the King of Sweden.1 The two on the part of Great Britain were to be nominated by the Judicial Committee of Her Majesty's Privy Council; and the two on the part of Venezuela were to be nominated, one by the President of that Republic, and the other by the justices of the Supreme Court of the United States. 2

Those selected on the part of Great Britain were Baron Herschel and Sir Richard Hen. Collins, of Her Majesty's Supreme Court of Judicature; but the first named having died soon after his appointment, Lord Chief Justice Russell was appointed to fill the vacancy, as provided in the treaty. Those selected on the part of Venezuela were Chief Justice Fuller and Associate Justice Brewer of the Supreme Court of the United States. Each of the litigants was to be represented by an agent and by counsel.

4

As thus constituted, the tribunal was to have full and final jurisdiction of the case as a whole; and in order to a decision, the concurrent opinion of a majority of the judges was necessary. The high contracting parties obligated themselves to consider such decision "a full, perfect, and final settlement of all of questions referred. ” 5

The judges were 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," and to "determine the boundary line between the Colony of British Guiana and the United States

1 Art. ii. Tr. Feb. 2, 1897.

4 Art. v.

2 Ibid.

8 Ibid.

5 Arts. iii. iv. and xiii.

of Venezuela."1 And in deciding the matters thus submitted, they were to "ascertain all the facts" in the case, and to be governed by certain rules laid down in the treaty; and, also, "by such principles of international law" (not inconsistent with those rules) as the judges might "deem applicable to the case." 2

5

These rules are three in number, marked “a," "b," and "c," in the treaty, and are identical in terms with those in the original protocol. By the first,* "adverse holding or prescription during a period of fifty years" was "to make a good title.' This clause was mandatory. It left to the judges no discretion in the premises. And it was certainly novel and unusual. Up to that time, all writers on international law who had advocated the application of the principle of prescription between nation and nation, had omitted to suggest any exact period of time within which title might be established by continuous material possession. All were agreed that prescription gave presumptive title only; that it was merely evidence of title and nothing more; that it neither created nor destroyed title. It created a presumption, equivalent to full proof, that good title existed, the origin of which had faded from memory. But it differed from full proof in this, namely, that while full proof was conclusive and final, prescription was conclusive only until it was met by counter-proof or by a stronger counter-presumption.

1 Arts. iii. and v. The word "the" was significantly substituted for "a" in the original draft of the protocol.

2 Art. iv.

8 Supra, p. 304.

4 Marked "a" in the treaty.

5 Not merely to create a presumption of title; thus indicating a new departure in the doctrine of prescription.

6 Wharton, Dig. Int. Law, vol. i. § 2; Phillimore, vol. i.; Vattel, Bk. i.; Wheaton's Elements; Twiss, Law of Nations; Lawrence, Law of Nations, etc.