should be recognized and known for what it is-as an arbitration only in name, while, in fact, nothing but an uncommonly ceremonious and elaborate investigation.

It is suggested that the United States admits the principle of the British proposals, but gets security against a miscarriage of justice in respect of a territorial claim by reserving to itself a "liberty of refusal" prior to the arbitration. But the United States' proposals contemplate no rejection of an Award when once arbitration has been resorted to-they reserve only the right not to go into an arbitration if the territorial claim in dispute involves the national honour and integrity. The British proposals also reserve the same right. The vital difference between the two sets of proposals is therefore manifest. Under the British proposal, the parties enter into an arbitration and determine afterwards, when they know the result, whether they will be bound or not. Under the proposals of the United States, the parties enter into an arbitration having determined beforehand that they will be bound. The latter is a genuine arbitration-the former is a mere imitation which may have its uses, but, like all other imitations, cannot compare in value with the real article.

It is further suggested that under the proposals of the United States, fear of a miscarriage of justice might induce the parties to make undue use of the plea that a claim is not arbitrable because involving the national honour and integrity. The possibility of such an abuse undoubtedly exists, and must continue to exist, unless the principle of Article V of the proposals is to be altogether abandoned. The fact was fully recognized in my despatch of the 11th April last, where it was suggested that the risks of improper refusals to arbitrate questions on the ground of their affecting the national honour or integrity would be reduced, perhaps minimized, if the decision in each case were left to the Legislature of each country. It cannot be necessary to now reiterate the considerations there advanced in support of that suggestion. It is sufficient to refer to them, and to add that thus far no satisfactory answer to them has occurred to me, or has been indicated in any quarter.

Lord Salisbury favours the practical exclusion of territorial claims from the category of proper arbitral subjects on two grounds. One is that the number of such claims is unknown, and that, if arbitration respecting them became obligatory, there would be danger of an enormous multiplication of them. What grounds would exist for this apprehension were General Arbitration Treaties comprehending territorial claims universal and in force as between each civilized State and every other, it is difficult to judge, and certainly need not now be considered. A Treaty of that sort between Great d the United States being the only thing now

contemplated, it is not easy to imagine how its consummation can bring about the perils referred to.

From what quarter may these numerous and speculative claims to territory be expected to come? Is the British Government likely to be preferring them against the United States, or the United States' Government likely to be preferring them against Great Britain? Certainly this objection to including territorial controversies within the scope of a General Arbitration Treaty between the United States and Great Britain may justly be regarded, if not as wholly groundless, as at least of a highly fanciful character.

It is said in the next place that the rules of international law applicable to territorial controversies are not ascertained; that it is uncertain both what sort of occupation or control of territory is legally necessary to give a good title, and how long such occupation or control must continue; that the "projected procedure" will be full of "surprises;" and that the modern doctrine of "Hinterland" is illustrative of the unsatisfactory condition of international law upon the subject under discussion. But it cannot be irrelevant to remark that "spheres of influence" and the theory or practice of the "Hinterland" idea are things unknown to international law, and do not as yet rest upon any recognized principles of either international or municipal law. They are new departures which certain great European Powers have found necessary and convenient in the course of their division among themselves of great tracts of the Continent of Africa, and which find their sanction solely in their reciprocal stipulations. "Such agreements," declares a modern English writer on international law, remove the causes of present disputes; but, if they are to stand the test of time, by what right will they stand ? We hear much of a certain Hinterland' doctrine. The accepted rule as to the area of territory affected by an act of occupation in a land of large extent has been that the crest of the watershed is the presumptive interior limit, while the flank boundaries are the limits of the land watered by the rivers debouching at the point of coast occupied. The extent of territory claimed in respect of an occupation on the coast has hitherto borne some reasonable ratio to the character of the occupation. But where is the limit to the Hinterland doctrine ?' Either these international arrangements can avail as between the parties only and constitute no bar against the action of any intruding stranger, or might indeed is right."

แ

Without adopting this criticism and whether the "spheres of influence" and the "Hinterland" doctrines be or be not intrinsically sound and just, there can be no pretence that they apply to the American continents or to any boundary disputes that now exist there or may hereafter arise. Nor is it to be admitted

that so far as territorial disputes are likely to arise between Great Britain and the United States, the accepted principles of international law are not adequate to their intelligent and just consideration and decision. For example, unless the Treaties looking to the harmonious partition of Africa have worked some change, the occupation which is sufficient to give a State title to territory cannot be considered as undetermined. It must be open, exclusive, adverse, continuous, and under claim of right. It need not be actual in the sense of involving the possessio pedis over the whole area claimed. The only possession required is such as is reasonable under all the circumstances-in view of the extent of territory claimed, its nature, and the uses to which it is adapted and is put-while mere constructive occupation is kept within bounds by the doctrine of contiguity.

It seems to be thought that the international law governing territorial acquisition by a State through occupation is fatally defective because there is no fixed time during which occupation must continue. But it is obvious that there can be no such arbitrary time limit except through the concensus, agreement, cr uniform usage of civilized States. It is equally obvious and much more important to note-that, even if it were feasible to establish such arbitrary period of prescription by international agreement, it would not be wise or expedient to do it. Each case should be left to depend upon its own facts.

A State which in good faith colonizes as well as occupies, brings about large investments of capital and founds populous settlements, would justly be credited with a sufficient title in a much shorter space than a State whose possession was not marked by any such changes of status. Considerations of this nature induce the leading English authority on international law to declare that, on the one hand, it is "in the highest degree irrational to deny that prescription is a legitimate means of international acquisition;" and that, on the other hand, it will " be found both inexpedient and impracticable to attempt to define the exact period within which it can be said to have become established-or, in other words, to settle the precise limitation of time which gives validity to the title of national possessions."

Again, "the proofs of prescriptive possession are simple and few. They are principally publicity, continued occupation, absence of interruption (usurpatio), aided, no doubt, generally, both morally and legally speaking, by the employment of labour and capital upon the possession by the new possessor during the period of silence, or the passiveness (inertia), or the absence of any attempt to exercise proprietary rights by the former possessor. The period of time, peatedly said, cannot be fixed by international law

as ha

between nations as it may be by private law between individuals: it must depend upon variable and varying circumstances; but in all cases these proofs would be required.”

The inherent justness of these observations, as well as Sir Robert Phillimore's great weight as authority, seems to show satisfactorily that the condition of international law fails to furnish any imperative reasons for excluding boundary controversies from the scope of General Treaties of Arbitration. If that be true of civilized States generally, à fortiori must it be true of the two great English-speaking nations. As they have not merely political institutions but systems of jurisprudence identical in their origin and in the fundamental ideas underlying them, as the law of real property in each is but a growth from the same parent stem, it is not easy to believe that a Tribunal composed of Judges of the Supreme Court of each, even if a foreign jurist were to act as umpire, could produce any flagrant miscarriages of justice.

Lord Salisbury puts the supposed case of a territorial controversy, involving multitudes of people whose prospects may be darkened and whose lives may be embittered by its pendency and its decision. The possibility of such a case arising may be conceded; but that possibility can hardly be deemed a valid objection to a scheme of general arbitration which is qualified by the proviso that either party may decline to arbitrate a dispute which in its judgment affects the national honour or integrity. The proviso is aimed at just such a possibility, and enables it to be dealt with as circumstances may require. The plan of Lord Salisbury in view of such a possibility is, that all the forms and ceremonies of arbitration should be gone through with, but with liberty to either party to reject the Award, if the Award is not to its liking. It is respectfully submitted that a proceeding of that sort must have a tendency to bring all arbitration into contempt; that each party to a dispute should decide to abide by an Award before entering into arbitration, or should decide not to enter into it at all, but, once entering into it, should be irrevocably bound.

The foregoing observations seem to cover such of the suggestions of Lord Salisbury's despatch of the 18th May last as have not already been touched upon in previous correspondence. By the original proposals of Lord Salisbury, contained in the despatch of the 5th March last, a protested Award is to be void unless sustained by the Appellate Tribunal of six Judges by a vote of He has since suggested that such protested Award may be allowed to stand unless a Tribunal of five Supreme Court Judges of the protesting country shall set it aside for some error of fact or some error in law. Without committing myself on the point, it occurs to me as worthy of consideration whether the original

five to one.

proposals might not be so varied that the protested Award should staud unless set aside by the Appellate Tribunal by the specified majority. Such a change would go far in the direction of removing that want of finality to the proceedings, which, as has been urged in previous despatches, is the great objection to the original proposals.

I have the honour to request that you will lay the foregoing before Lord Salisbury at your early convenience, furnishing him, should he so desire, with a copy, which is herewith inclosed for that purpose. I have, &c., Sir J. Pauncefote.

RICHARD OLNEY.

PRELIMINARY STATEMENT on behalf of Her Britannic Majesty's Government, on the Question of Boundary between British Guiana and Venezuela.*-February 1896.

THE purpose of the present Statement is to explain the general outline of the position of Great Britain in the long-pending dispute with Venezuela as regards the boundary between British Guiana and that country.

It will be convenient to state generally in the first instance the nature of the question which has arisen and which will be discussed in the subsequent Statement, and to make a brief reference to the geography of the district involved.

The territories now known as British Guiana and Venezuela had been discovered before the year 1520.

Between the date of discovery and 1648 the Spaniards and the Dutch had occupied portions of this territory. The extent of such occupation by each country will be a matter for consideration.

In 1580 the United Provinces of the Netherlands threw off their allegiance to the Spanish Crown, and a war ensued which lasted almost uninterruptedly for nearly seventy years.

In January 1648 peace was concluded by the Treaty of Münster, by which Spain acknowledged the independence of the Netherlands, and the two countries were respectively confirmed in their then possessions on the South American Continent.

From 1648 down to 1796, with the exception of a short interval between 1781 and 1783, the Dutch remained in possession of the territory which they had occupied prior to the Treaty of Münster, and extended their settlements within it.

* From Parliamentary Papers "Venezuela No. 1 and No. 2 (1896).”