November 26.-The Commissioners met for the despatch of business. November 28.-The claim of Philip William was submitted to the Commissioners, and the documents in proof of the same read by the Clerk. The following letter was received from Mr. Leal, declining the appointment of Umpire : (Translation.) "Imperial Legation of Brazil in Venezuela, "Sans Souci, November 27, 1868. "I have just had the honour of receiving the despatch which, under the date of the 25th instant you were pleased to address to me, and in compliance with your wishes, I hasten to inform you that when I verbally declared to my honourable colleague, Mr. George Fagan, that in consideration of the amicable relations existing between Brazil, Great Britain, and Venezuela, I would accept the honourable, as it is delicate charge of being the Umpire in the disagreements which might by chance occur between the Commissioners appointed for the adjustment of the claims of Her Britannic Majesty's subjects against the United States of Venezuela, I based my acceptance on the exclusive hypothesis that both Governments, or their Commissioners, should, in accord, have been disposed to confide their possible disagreements to the Brazilian Diplomatist who, at various periods, and repeatedly, was so fortunate as to lend successfully his good offices and mediation in grave matters wherein the honour and dignity of this Republic were engaged. "But since one of the Commissioners of the contracting parties believes that justice and the interests of his country are better considered by having recourse to the IVth Article of the Convention, copy of which your Excellency has been so good as to send to me, the principal basis for my acceptance no longer exists, and your Excellency cannot be surprised that I should, in this new contingency, decline the honour and confidence with which I am favoured by the agent of Her Britannic Majesty. "Most sincerely hoping that the enlightened Commissioners of the two nations friendly to Brazil may not be under the necessity of appealing to the Arbitrator they may elect, and that in such a case their decision (as it is to be expected) may be so just, equitable, and suitable as to satisfy all the interested parties, it remains to me to avail myself of the opportunity to assure your Excellency of my eternal gratitude for the confidence with which you have honoured me, and to renew to your Excellency the assurances, &c. "To Lewis Joel, Esq., British Commissioner." November 30.-The claim of Michael O'Callaghan was submitted to the Commission, and the documents in support of the same read by the Clerk. The British Commissioner named Mr. William Stürup, Consul-General for Denmark, as Umpire on his part, and the following letter, tendering him the appointment, was transmitted to him : "Sir, : "Caracas, November 30, 1868. I have the honour to inclose copy of the Convention for the adjustment of pending British claims against the Government of Venezuela. "As Commissioner on the part of Great Britain I have strenuously endeavoured to fix upon a person as Umpire mutually agreeable to the Commissioner on the part of Venezuela and myself, possessing the requisites of high position, unimpeachable character, and strict impartiality, but to my deep regret in vain. It has, therefore, become necessary to have recourse to the IVth Article of the Convention, which provides for this contingency by authorizing each Commissioner to name an Umpire, one of the two so named to be elected by lot in each particular case in which the Commissioners may disagree. "The high official position you hold, the duties of which you have for so many years discharged with so much dignity, and your established reputation for integrity and impartiality, have induced me to name you as Umpire on my part, believing that your acceptance of this office will be a source of satisfaction to the claimants, to my Government, and to the Government of Venezuela. "I shall esteem an early reply a personal favour, as in the event of your declining the appointment (a contingency which I sincerely trust will not arise), a new nomination on my part will be necessary. "To William Stürup, Esq., "I have, &c. (Signed) "LEWIS JOEL, British Commissioner. December 2.-The Commissioners met for the despatch of business. The claim of Colin Campbell was submitted, and the papers in reference thereto read by the Clerk. December 5.-The claim of Dr. H. Segur was submitted to the Commission, and the documents in reference thereto read by the Clerk. The following letter was received from Señor Guillermo Yribarren Mora, accepting the post of Arbitrator or Umpire to the Commission: "Sir, 66 "Caracas, November 30, 1868. "I have read your note of the 25th of this month, handed to me by you on the evening of the 27th, in which you are pleased to acquaint me with your wishes that I should accept the nomination with which you have honoured me as Arbitrator on your part, in such cases as are provided for in the 4th Article of the Convention relating to the Mixed Commission, copy of which Convention you inclose; and, in reply, I beg to state that I accept with the greatest pleasure the honourable charge you have been so good as to confide in me, the duties of which I will endeavour to fulfil in a manner worthy of its sacred aim at justice and harmony between the two countries, and of the confidence placed in me. "To Dr. Juan de D. Mendez, Venezuelan Commissioner." "With, &c. The following letter was received from William Stürup, Esq., accepting the post of Arbitrator or Umpire to the Commission : "Sir, 66 "Danish Consulate-General, Caracas, December 2, 1868. "I have had the honour to receive your much-esteemed note of the 30th ultimo, accompanied by a copy of the Convention dated September 21st, for the adjustment of pending British claims against the Government of Venezuela. "You request me by the said note to act as Umpire, in accordance with clause fourth of the Convention, for the decision of such points that you and the Venezuelan Commissioner may not be able to agree upon; and, in reply, I beg to state that, considering it an honour to have been selected by you for deciding the important questions that may arise during the discussions of the Commissioners, and being, as I am, desirous that due justice should be conceded to British subjects, I accept the said position, and shall do the utmost in my power to award an equitable settlement. "The friendly relations which fortunately exist between my Government and that of Great Britain is another motive for me to embrace with pleasure an opportunity for being useful to British interests. "To Lewis Joel, Esq., British Commissioner. دو 66 "I have, &c. December 7.-The claim of José Trinidad de Castillo was submitted to the Commission, and the papers in reference thereto read by the Clerk. The following letter was sent by the Venezuelan Commissioner to the British Commissioner : (Translation.) "Caracas, December 11, 1868. Sir, "The admissibility by the Mixed Commission (for the effects stated in the Diplomatic Convention which created it) of documents consisting of depositions of witnesses taken, or certificates issued, without the intervention of a legitimate representative of the nation, and, at all events, not ratified in presence of the employé to that effect nominated by the National Executive, in conformity with what is prescribed in the 4th rule of the 28th Article of the Law of the 16th of June, 1865, and other resolutions on public credit, dictated by the Executive, is not a subject which ought to be decided by the Arbitrator, who has only to fix the amount or value of each claim when the Commissioners should differ in opinion on that point, whatever the difference may be in the case or cases which may take place. This, taking for granted, which you have not denied, nor could not but acknowledge, that positively there are several depositions and certificates subject to this defect. "In our case, having recourse to an Arbitrator is similar to that of appealing in cases of jurisprudence, because of the different manner in which the proofs for the establishment of facts whence right is derived, may be appreciated; always supposing that the case has been instituted or substantiated in conformity with the formalties prescribed by the laws of judicial procedure. Nor is it to be supposed, without offence to the good sense and the decorum and uprightness of the principles of the Contracting Parties, that they should have agreed upon assigning merit, any merit whatever, to every collection of papers appearing in the Chancery of the British Legation, or in the Venezuelan Foreign Office, bearing the title of "claims" given to them by interested parties. "In fact (puridad), on this subject there is no question between us, as you have circumscribed your reply, in the notes of the 26th of October and 3rd of November last, to upholding that the law, and other resolutions alluded to in public credit, did not affect the depositions taken and certificates issued prior to the said law and resolutions, or what comes to the same, that the said law and resolutions cannot have a retroactive effect, which would be the case if the said depositions and certificates had to be ratified in conformity with the terms of the above-mentioned 4th rule of the 28th Article of the Law on Public Credit of 1865, and other Executive Decrees having reference to it. "But the question being placed on this footing, since I have upheld and do uphold that depositions taken beforehand are of no value if not ratified in a suit at law, in conformity with the laws of judicial procedure, the nation could well have established as a condition for its responsibility, in the cases alluded to, the formality of ratifying in order. to save the ever undeclinable right of defence, I venture to ask : "May we submit to the Arbitrator, and can he decide whether the law alluded to is or not of a retroactive effect in the cases in question? And I answer, no, Sir, because, as we have seen, neither the Commissioners nor the Arbitrator can resolve any question that is not reduced to the fixing of the amount of the claims according to the Convention. "Because the submitting of such a question to the Arbitrator involves the acknowledgment of his having the faculties to decide it. "Because it being acknowledged that the Arbitrator had such faculty he might decide with his discretional power that the decree of law respecting ratifying was of a retroactive effect, annulling the law thereby. "Because it can hardly be supposed that the Contracting Parties should have stipulated the possibility of making the law nugatory by an Arbitrator, in defiance of the Sovereignty of the nation. "And because any decision presupposes the faculty in the Arbitrator of interpreting the clauses of the Convention respecting the powers of the Commissioners and his own, when such attributions have not been assigned to him by the Contracting Parties, the only ones called upon to interpret in the form and terms acknowledged by the law of nations. "I have to state, in conclusion, that under these circumstances there is but one course traced to me by duty, that of insisting upon our frankly delining to take cognizance of the evidence of losses which are said to have taken place between the 20th of February 1859 and the 24th of July 1865 (the period to which No. 1 of the 23rd Article of the Law of Public Credit of 1865 makes reference), which have not been ratified in conformity with what is stipulated in the 4th Rule of the 28th Article of the said Law. '' I harbour the hope that we will thus proceed, such is the confidence I have in your enlightenment, in the characteristic uprightness of the English people, and in the high discretion with which the Agents of that great nation carry on its relations with the incipient South American Republics. "To Lewis Joel, Esq., "I have, &c. "Sir, British Commissioner." The following is the reply of the British Commissioner : "Caracas, December 15, 1868. "I have to acknowledge the receipt of your note of the 11th instant.. "It is so evident that you have determined to maintain that the Law of the 16th of June, 1865, has a retroactive effect, that it would be useless for me to occupy your time or my own in any further correspondence on this subject; but the extraordinary determination you communicate to me not to submit the question for decision by the Umpire leads me to believe that you must be convinced that your position is untenable. "Had you been named sole arbitrator to decide on these claims your letter would have been a defence or apology, such as it is, for the position you have taken; but, under existing circumstances, your authority being only equal to my own, your arrogating to yourself the right to decide, in opposition to my views, a question vital to so many claimants, and your refusal to submit the point at issue to the decision of the Umpire, is an usurpation of power against which I must in the most solemn manner protest. "Under the attributions you arrogate to yourself you could to-morrow object to entertain a claim, proved beyond the shadow of a doubt, because the depositions were not taken in red ink instead of black, on blue paper instead of white, or any other pretext equally preposterous, and I should be obliged to submit, having, according to your theory, no remedy or appeal from your decision. Thus your objection, no matter on what grounds, would be fatal to any or all of the claimants. Permit me to ask you if this could have been the intention of the Contracting Parties to the Convention? "That this was not their intention is clearly proved by the 4th clause of the Convention, which reads as follows: The Commissioners shall appoint some third person as an Arbitrator or Umpire to decide upon any case or cases concerning which they may disagree, or upon any point of difference that may arise in the course of their proceedings.' "The question as to whether or not the Law of the 16th of June, 1865, can have a retroactive effect is 'a point of difference' between us, which, I insist must be submitted for the decision of the Umpire, as I shall continue to insist that any other points of difference that may arise in the course of our proceedings must be so decided. "If the Law of the 16th of June, 1865, has the effect which your interpretation would give it, how is it that claims adjudicated upon by the Hon. Mr. Edwardes and your Government in November 1865, in which the depositions were taken in the same way as those you refuse to entertain, were not objected to? It is, then, only in 1868 that the convenience of this Law has been ascertained. "You say, in your communication now before me, 'May we submit to the arbitrator, and can he decide whether the law alluded to is or not of a retroactive effect in the cases in question? and I answer, No, Sir; because, as we have seen, neither the Commissioners nor the Arbitrator can resolve any question that is not reduced to the fixing of the amount of the claims according to the Convention.' "If our attributions are solely to fix the amount,' by what authority do you arrogate to yourself the right to refuse to entertain claims because the depositions were not taken agreeable with your ideas? Our power being limited "to fix the amount," we have no right whatever to enter into discussion on points of law or judicial procedure. "It will be quite pertinent to the subject if I here repeat what I have on more than one occasion told you verbally, that my Government naturally supposed that claims submitted to this Commission would be investigated and adjudicated upon, on their equity, as is the custom in these cases, and it could not for a moment have been supposed that my offer to determine with you the amount of these claims, guided by the law of reason, should have been met by such obstacles as a want of form in judicial procedure, and the supposed retroactive effect of Venezuelan laws. "I cannot conclude this communication without expressing my deep regret that the frank and friendly spirit in which I have so often offered to consider with you the equity of these claims, should have met with no reciprocal response from you, and that these offers should have been received on your part with uncompromising hostility. "I have no recourse but to submit this correspondence for the consideration of Her Majesty's Government; and, pending the receipt of a reply, we can proceed to examine those claims which cannot be affected by the objections you have raised. "To Señor Juan de D. Mendez, "I have, &c. (Signed) "LEWIS JOEL, British Commissioner. December 15.-The Commissioners met for the dispatch of business. The claim of Woodbury Brothers was submitted, and the papers read by the Clerk. The claim was admitted. December 19.-The Commissioners met for the despatch of business. A claim of H. G. Schimmel was submitted, and the depositions in support of it read by the Clerk. December 21.—The Commissioners met for the despatch of business. The following correspondence passed between the Commissioners : (Translation.) "Sir, "Caracas, December 17, 1868. "I reply to the note you were pleased to address me on the 14th instant, and which I received on the 15th. "I have not been able to understand what it is that, in your opinion, I have decided authoritatively. I have only limited myself to opposing the submitting of the case respecting the retroactiveness of the Law on Public Credit of 1865 to the decision of the Arbitrator, as it is to me indisputable that the said question, the same as any other question relating to the extent of the powers we exercise, can only be decided by the Contracting Parties. If I am, therefore, not aware of any other circumstance, and try to find therein, considering it the only source, the true meaning of the Convention, whilst you have thought it can be arrived at in the decision of the Arbitrator, how is it that I arrogate to myself faculties and commit usurpation? "You observe, if our attributions are solely to fix the amount,' by what authority do you arrogate to yourself the right to refuse to entertain claims because the depositions were not taken agreeable with your ideas? Our power being limited "to fix the amount," we have then no right whatever to enter into discussions on points of law or judicial procedure. Accordingly in your absolute opinion, be it on account of the extent or restriction, the excess or deficiency of powers, is the phenomenon always to be realized that the Commissioners or the Arbitrator can interpret and decide everything. Behold, Sir, how in the search for reasons you have, perhaps unwittingly, fallen into an absurdity. "Allow me to state that your views are quite unfounded. In all affairs in which a judgment has to take place for the establishment of a right, we cannot prescind from what is called " Subjecta materia;" that is to say, of the logical element which authorizes reasoning, and of the power of the law which authorizes its being carried into effect. In our case the subjecta materia is the circumstance that the proofs of claims, the amount of which you and I must fix, or the Arbitrator, as the case may be, should be substantiated in conformity with law; that is to say, that they be qualified subjects. "You mention arrangements with the Honourable Mr. Edwardes in November 1865. I am not acquainted with the documentary evidence, and I must suppose there were no difficulties, be it that the fiscal representation was not wanting in the personal evidence, or that the term allotted for ratifying the depositions had not elapsed. But, whatever the circumstances, the argument of analogy is of no importance, as it does not refer to an equal situation to the present, wherein a previous Convention and a Commission ad hoc exist; nor does an abuse, if such there was, committed in given cases, by a mandatory, even morally bind the nation with respect to other claims. "Strange, in reality, is the way in which you apply the principles of equity to the affairs we are engaged with. You believe that out of regard to that equity we should prescind from all forms. That opinion of yours may be very good, and most assuredly it is very convenient to the Claimant's purposes; but if it were brought forward by me in identical demands against the British Government, based upon the wording of the Convention, you would surely object to such an equity as monstrous, and would refuse to acknowlege in toto that the Commissioners or the Arbitrator had the right to exercise it ; and with superabundance of reason, because, as by the principle of judicial morality 'deceptis non decipientibus jura subvenient;" fraud in contracts is always understood to be protested against; we must thus understand in the Convention, in honour of those who signed it, all evidence wherein the Government has not been allowed to preserve themselves from fraud, as protested against, no less than against the possibility of the same gaining admission through a positive usurpation of faculties to interpret the extent of the power assigned by the Convention. What sort of equity is this, Sir, which shows itself an irreconcileable enemy to sound reasoning? "It was not worth while that so simple a matter should have had so lengthy a discussion, and much less that it should engage the attention of the British Government, as you inform me will be the case. It would suffice, as I have before begged to observe to you, that at our request, the Minister of Foreign Relations of the United States of Venezuela, and Her Britannic Majesty's Chargé d'Affaires who signed the Convention, should clearly explain its true meaning in such matters as have been the subjects of difference between us. On this account I have thought proper to accompany herewith, as I do, a formal copy of the decree of the Venezuelan Executive, dated the 1st July, 1865, calling your attention to the peremptory disposition of its IIIrd Article. 66 "I cannot conclude this note without expressing to you my surprise at the harshness, personal, in which you clothe the arguments addressed to me. It is my impression that |