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for this document, because it is a document involving matters of high State policy, and therefore a document which I cannot be called upon to produce.
The President then said that all the members of the Tribunal agreed that if a Government refused in view of consideration of high policy to produce a document, it had not only the right, but from its own point of view the duty to refuse, and that it was sufficient for the Tribunal to have the statement that the document could not be produced in view of the consideration of high policy.
This decision will probably form a very important precedent, but it might be advisable that in any future treaties of arbitration the precedent should be embodied in a formal clause. In such manner a set of rules decided by great jurists can well be built up for the use of tribunals in the future. But at the same time a most difficult question must always arise how either nation is to be required to produce all the material documents relating to the facts that are in question. Venezuela not only did not produce documents relating to the later portion of the case, but, while asserting that they existed and yet deliberately withholding them, suggested that the extent of her political control would have been shown by these absent documents. The Lord Chief Justice of England pointed out that for a whole year there had been opportunity to apply for leave to put in documents relating to the period in question, and counsel for Great Britain warmly opposed any imaginative value being given to documents which were deliberately kept back. But if Venezuela chose not to produce them, however material to the facts they might be, how was she to be compelled to produce them, or how were the material facts to be before the Tribunal ?
The President of this Tribunal claimed that twenty-four rules adopted at the Hague had been followed in the arbitration, as if a code of arbitration had already been established. If the discussions at the Hague are examined it will be found that the delegates discussed and considered rules of procedure under the titles of facultative and auxiliary rules. Although in a general sense the rules adopted by the delegates may have been followed at Paris, it may be doubted if these rules can give more than an indication of methods that may be pursued. Some portions of procedure must invariably be determined by the discretion of the judges or the agreement of the parties.
. With more justice M. de Martens could claim the value of a unanimous decision, and hold it up as 'un idéal vers lequel il faut tendre, parceque, s'il y a force légale pour les Puissances en litige dans une sentence arbitrale adoptée à la majorité, il y manque cette force morale qui • est d'un bien autre prix encore. In view of the fact that Great Britain received the Schomburgk line with very small variations, it can scarcely be said that this unanimity was gained by any yielding of the British attitude or by a compromise in the strict sense of the word. There may have been a little give and take. The modification in the interior was to select the river Wenawu in preference to the upper reaches of the Cuyuni, which Schomburgk had proposed as the best line for a boundary. The upper portion of the Cuyuni had not been surveyed, and was only marked by a dotted line upon the maps. Schomburgk descended the Wenamu, and not the Cuyuni, and in his first report proposed the Wenamu as the boundary river. No white man lived in the small district between the rivers. The site of the Spanish missions was much nearer than any Dutch settlement, and there was evidence tending to show that while the Dutch hunted through it for slaves, the Spaniards had raided through it for converts. As a piece of land, on which Venezuela warmly urged that a supposed Spanish fort had formerly existed, was assigned to Great Britain on the south bank of the Cuyuni, there was at least plausible claim for Spanish action in the immediate neighbourhood, and little or no evidence of Dutch control, except that the Carib inhabitants hated the Spaniards and brought slaves to the Dutch.
The modification on the coast was more important. The new line starts at Point Playa, a few miles down the coast from Point Barima, and runs across the river Barima to the river Amakuru, giving about thirty square miles to Venezuela which Schomburgk, who took the line up from the mouth of the Amakuru, included within his line. Almost the only portion of firm ground within this district is a small sandbank with a police station in the neighbourhood of Point Barima. This sandbank is fast being eaten away by the current of the Orinoco. Behind it the land is swamp, through which every tide soaks, and nobody but a few migratory Indians, living practically in the trees, can reside upon it. A few acres of land near the police station have been drained. The slice cut off is consequently, in its present condition, almost absolutely useless, and does not include any part of the great outward curve of the
Schomburgk line along the course of the river Amakuru, within which the gold fields of Arakaka and the Upper Barima, now being worked by British subjects and annually producing increased quantities of gold, have hitherto been tentatively developed. Barima may have had more solid ground in its neighbourhood in old days. Before 1649 the Dutch seem to have used the district as a starting-place for expeditions against the Spaniards, and about 1683 proposed the erection of a small post there. But they made no practical use of the spot, and in the following century the Governors of Essequibo doubted where the boundary line ought to be drawn, although they alleged that the Dutch held the right bank and the Spaniarols the left bank of the Barima River. Gross confusion arose as to the position of the Barima River, because upon many of the early maps the Barima and Amakuru Rivers were transposed, and Great Britain bad to say that the Dutch governors took the names from the maps, and meant the Amakuru when they said the Barima. The Spaniards, on the other hand, were too distant to exercise any continuous control over the district, but they did, at least on one occasion, send an armed boat to turn out some piratical Dutchmen, without any protest from the Governor of Essequibo.
In the present century neither side did anything there until, in 1836, the British Consul at Caracas actually asked the Venezuelan Government to erect a lighthouse on Barima Point for the safety of ships passing through the Grand Mouth of the Orinoco. The Foreign Office were not informed of this request, and subsequently repudiated it. But although Barima was generally included within British territory upon maps, no map extended the boundary to the Amakuru before Schomburgk selected that river as the best natural boundary, and in the attempts at arrangement with Venezuela every British minister proposed to give up the mouths of both rivers.
Barima lay close to the mouth of the Orinoco, in a position which some authorities claimed to be a strategical position ; and Venezuela claimed it on the ground of national security, even if she was not entitled to have it by absolute proof of ownership or control. Within the last few years Great Britain had, indeed, put up a police station in order to guard the entrance of the Barima River and to protect the few Indians in the neighbourhood, who looked to the British in preference to the Venezuelans. This action, however, was strongly objected to by Venezuela, and as a question of right the possession was contested and debated from very early times. On this matter, therefore, it would appear that the Tribunal have exercised a kind of equitable jurisdiction, for which on the strict wording of the treaty it might be difficult to find full authority. They found the starting point of the line at Point Playa, probably after considerable debate, as the line was discussed for six days after the oral hearing had been concluded. The records do not say whether the offers of British ministers, the writings of a few British globe-trotters, and the unsupported claims of Venezuelan jurists were pressed as legal arguments in the discussion of the arbitrators against the possession of Barima Point by Great Britain, but there are traces to show that this debateable land was not at once and without question assigned to the territorial sovereignty of Venezuela. An open waterway up both the Barima and Amakuru Rivers was specially insisted upon, and Great Britain received a line in the interior going along the north bank of the Cuyuni, and not in the midstream or 'thalweg.' This line gives the islands and the entire waterway of the Cuyuni as far as the river Wenamu to Great Britain, and is an extension of the Schomburgk line. The result is scarcely worthy of the name of compromise, but it implies discussion. It may be hoped that the discussion was legal, and not too much tinctured by supposed admissions on the part of a country which had only sought a reasonable settlement with a refractory neighbour.
Whether Venezuela was in earnest or not in desiring a decision as of strict right may be open to question. It was a broad extension of the ideas of right to claim all the territory up to the Essequibo. But South America teems with jurists, and each State, as an inheritance from Spain, puts in the forefront of its action the theory of law.
It may be remarked that the decision of the Tribunal took no notice whatever of the status of the inhabitants of the district assigned to one side or the other. Individual occupation or adverse holding under Rule (a) for fifty years did not in the result affect the question. Such matters might possibly have done so in the interior if the red race, as distinct from the white, had entered into consideration. There was no white man resident between Wenamu and the Cuyuni, but there were some Arecuna Indians, a domestic and resident tribe. It might have been impossible to ascertain whether they had been there for fifty years, and whether they considered themselves, or were considered to be, British subjects. Their position, except so far as it indicated evidence of control by white men, was not, however, considered. Before American judges, steeped in the views held by Chief Justice Marshall with regard to the Red Indians of North America, any contention would doubtless have been useless. No natives could hold sovereignty, confer territorial rights, or interfere with the claims of white men to sovereignty in the wbole of America if that judge's views were to hold in the South as well as the North. It may be doubted whether the very wide language used by the Chief Justice as long ago as 1823 would have altogether commended itself to the treaty-making old Dutch settlers at New Amsterdam in 1623, and certainly both Spaniards and Dutch made and relied upon alliance with the natives in South America. The exact legal effect of such alliances it might be difficult to define; but they existed, and formed the groundwork of policy. Certain free tribes of Indians, such as the Caribs, the Akawois, and Warraus, were never enslaved by the Dutch; and where their tribes lived or wandered, Dutch influence and the tradition of Dutch brotherhood, largely fostered by the Dutch babit of seeking one or two native wives, spread, and were handed down from generation to generation. Far away in Spanish territory, when some unexpected expedition of Spanish soldiers was sent to watch the extension of the Portuguese and met with rude opposition from the slave-raiding Carib tribe, Caribs were heard to say, We will call in our brothers the Dutch:' The remnant of an expedition would return to say how the Dutch were invading the territories of Spain and cutting off the great hinterland of the Orinoco, though no Dutch Governor dreamed that the territory there could be lawfully claimed by their High Mightinesses the States-General; or if wandering Dutchmen had been killed, would have demanded redress from the Court of Spain. Such redress was, however, at once demanded when the Dutch were attacked in 1758 upon the river Cuyuni. It would be a difficult question to decide how far such influence is to be examined, and to lay down the principles upon which control can be definitely claimed. They are varied and complex ; but as the eleinents of control gradually built up the Dutch rights in Guiana, so similar elements have tended to impress German rights in the Cameroons, Togoland, and Angra Pequena; and British rights throughout the vast Niger Protectorate, and in all the territories adjacent to the Gold Coast have progressed by gradual