concerned, respecting the fact that the master of the sloop had requested him at Pedernales (when coming from Trinidad) to write a letter for him to Bonttur, advising him that he would go on to Barrancas by the Manamo branch, says (folio 28) that it is true, and that in effect the master, whose name he did not remember, owing to the information he had given him of the occupation of Tabasca, resolved upon going to Barrancas; and cross-questioned by the Fiscal respecting the capture he said that he knew nothing about it.

Thus none of the witnesses were eye-witnesses to the capture. The three first testify from hearsay, and this very vague and varied; and, moreover, the depositions of E. Pimentel and Aloy not only strongly argue against the purpose of not going to Tabasca; but that these witnesses, whilst specially acquainted with the circumstances of the voyage of the sloop, the one is nevertheless absolutely vague in his declaration as respects the capture, and the other absolutely unacquainted with the fact.

With respect to the second interrogatory, the sailors Mendoza and Pinto declare (folios cited) that the sloop was captured in the Manamo branch on the 29th November; and Taylor (folio cited) that she was captured, but he did not know by which Chief, on what date, nor where; Mendoza and Pinto after affirming that the capture was on the 29th November, answer the Fiscal that they did not remember the date. Mendoza, in reply to the Fiscal respecting the manner in which the sloop was taken to Tabasca, says she was taken in tow by the Federal skiffs; and Pinto, in reply to the same Fiscal, on the same subject says "that they all got on board the sloop, and hauled her up the river by means of ropes (à la espia), placing the canoes or skiffs astern. According to Mendoza's version the sloop was towed by the skiffs (or large canoes armed): and according to Pinto's verson, the skiffs astern of the sloop, the latter with all the crew of the skiffs on board of her, was hauled up the river by means of the tow-line, at which all of them on board pulled (and which probably was secured up the river by means of the sloop's boat). Well, then

1st. Mendoza and Pinto have contradicted themselves in affirming in one place that the date of the capture was the 29th November, and in another, that they did not remember that date. Their depositions, therefore, are unworthy of credit (Law 41 title 16, Part 3).

2nd. The same sailors have openly disagreed as to the manner in which the sloop was taken to Tabasca. Therefore their respective depositions stand as solitary ones ("singulares"), under the opposing ("obstativa") or adversative (" adversativa") condition, according to the distinction by expounders ("expositores "), or what explains the same; the moral integrity "integridad") of the complex fact of the capture and taking of the sloop to a certain place is not defined and made precise by similar versions; and in that case neither one or the other have any value (Law 28, ibid).

3rd. The declaration of Taylor does not determine either the date (el tiempo "), or the place, or the Chief, not because he did not remember, but that he did not know, and, moreover, is in no way whatever supported in the process. It is, therefore, at most an indication" indicio " (Law 32, ibid).

7. But even supposing the sloop to have been taken in whatsoever manner to Tabasca by the Federal skiffs, are the circumstances which would characterize as a real capture the act thus qualified, and which it is said took place at Mánamo, at all proved? In no manner. It would have been necessary that the examination and depositions of the witnesses should have had reference to the following circumstances-that, in trying to escape, the sloop had been overtaken; that, in some manner, she was ordered to surrender; that she was boarded by the Federal skiffs; that there were threats of such a nature that the master understood that any resistance would have been of no avail, &c. There is, therefore, no evidence-I will not say of real compulsion on the part of the crew of the skiffs, but even of there having been the slightest motive for fear on the part of the

master.

And not only is there no reason to believe in a real capture, but that everything tends to persuade that the best understanding aud harmony prevailed between Bonttur, Garrido, Gil, the sailors, the crew of the skiffs, the Chiefs Garcia and Vallenilla, and also Colonel Benavides, who was the Chief at Tabasca.

In effect, why did Bonttur, Garrido, Mendoza, Pinto, and José Cleto Gutierrez (who was also a sailor) remain silent in the preliminary proceedings of the 12th of December, respecting the serious fact of the capture and taking of the sloop to Tabasca; a fact which it is easy to understand could have been made use of to give some explanation with respect to the charge on account of the sloop having cleared from that port for foreign parts? Why was there no proof formalized in the interrogatory of the sailors with respect to the master, Gil, having made some resistance, some opposition, or

that some phrase had escaped him at the moment of the said capture, showing that the act was an unexpected and surprising one to him? How can the declaration of Alloy be explained, stating in one case that the master, with whom he had spoken at Pedenales, being informed of the occupation of Tabasca, had resolved to go to Barrancas; and in another, that the said master, before resolving to go to Barrancas, had told him he was going to Barrancas? Why did Bonttur, who affirms that, when he heard that the sloop had been captured, he had gone to Colonel Benavides to prove to him his rights and "to protest, if necessary, against that outrage," why did he not make any such protest and even did not make it appear in any manner that he had made any such statement to Benavides? How is it that Bonttur could not do this, if not as a recourse against the captors, as a declaration of innocence, and yet could hasten to formalize a protest at Pedernales, abandoning the sloop on the 13th of December, when the investigation had hardly commenced as to whether there was or not sufficient cause for a suit for confiscation of the sloop? What is the meaning of the sloop being convoyed as far as Pedernales by two large armed canoes of the Federals to save her from being captured by the Government forces, a convoy which would have proved effective but for the presence of a steamer and superior forces of the Government?

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8. It is argued that in 1861 the Republic was at war, and that, therefore, the de facto authorities of Tabasca were lawful ones for foreigners, and that Bonttur's sloop could well have been dispatched from that place. The effects of a fiscal suit for confiscation must not be confounded with those of an imaginary one respecting war prizes. Had the suit in reality been respecting the sloop being a prize or not, never would a better prize been declared than the sloop Grace," as she was found at Pedernales on the 17th of December, nor any one more properly made a prisoner than Bonttur and Garrido. Had even a Decree or Resolution of any one or those in function as the Government of the Revolution in December of 1861, habilitating the port of Tabasca, been cited, I might be excused for entering into some discussion on the subject, which could never be justified on my part in a matter on the whole foreign to the suit and sentence for confiscation. No, I cannot now agree to enter into a discussion respecting a case of confiscation sentenced and carried into execution upon bases having reference to an imaginary case relating to prizes, because I would to-morrow have to agree to a discussion on a case sentenced and carried into execution relating to prizes upon bases having reference to an imaginary case of confiscation.

9. Annexed to the minutes of proceedings ("expediente") appear a certificate of Señor Toma Garcia, as the Administrator ad interim of the Custom-house of Barrancas, dated the 20th of May, 1862; and a note of Colonel Andres N. Benavides, dated the 30th of November, 1862, addressed to Bonttur. These documents were not brought forward in the suit, and therefore no one has the right to take them into consideration to resolve the question in ventilation respecting notorious injustice.

Could the said papers be taken into consideration they would in result prove contrarywise. The former, because showing that Bouttur having, from Tabasca, consulted the above-mentioned Administrator, in December of 1861, as to whether he might despatch the sloop "Grace" from Uracoa or Tabasca for Trinidad, “notwithstanding," as he says, "that the enemies" (Federals) "are in the suburbs of those parishes, he obtained a flat negative in reply; and the latter, because one skiff, the 13th of November, is mentioned therein" (contrary to what is declared respecting two in the suit),-"as finding and taking-the sloop to (contrary to what was declared respecting capture); and because in all the rest of its contents it is explicitly expressed that the sloop had full guarantees and perfect liberty of action. This document bears the appearance of not having been written on the 30th of November, 1861, but on some other date of 1862. It was probably applied for in June 1862: they placed the date, 30th November, which was of importance to the interested party, and from habit the writer added the current year 1862 (it is not probable that a person writing should inadvertently date with a year yet to come). We can thus explain how the British ViceConsul at Barrancas could certify the authenticity of the signature of Benavides on the 20th of June of 1862.

Mr. Francisco V. Bonttur.

Judgment of Mr. Joel, British Commissioner.

This is a claim for the value of the British sloop "Grace" and cargo, and for damages and prejudices caused by her alleged wrongful capture and confiscation.

On the 21st November, 1861, the sloop "Grace" duly cleared in ballast from Port of Spain, Island of Trinidad, for Barrancas, a port on the Orinoco, having on board, in addition to the necessary clearance papers from the authorities of Port of Spain, the usual certificate from the Venezuelan Consul resident at that place.

On the 29th November, while ascending the Manamo branch of the Orinoco, the "Grace" was boarded by two armed canoes under the orders of Commander Cruz Garcia, and taken to Tabasca or Amador, where she was released by order of the Colonelin-chief, Andres N. Benavides, who, in notifying the consignee of the vessel's release, concludes his note in the following terms, (accompanying document marked No. 4 B) :"And it being the aim of the Federal system to guarantee property and to respect the Treaties entered into with foreign nations; and, moreover, also to protect commerce and navigation, if lawfully carried on, it is hereby decided that you may dispose of your vessel. I have also to state to I have also to state to you that you may load the same in any way possible, provided you pay the respective export duties."

In consequence of this notification by the de facto authority of the port, the captain of the "Grace" was induced to take on board eighteen head of cattle and twentyfive hides, on which he paid the export duty as prescribed by the tariff, the receipt for which (document marked No. 4 A) is herewith transmitted.

The "Grace" cleared from Tabasca on the 9th December and proceeded to Pedernales; and while at anchor there (the crew being engaged in cutting grass for the maintenance of the cattle on the voyage from the Main to Trinidad, as is customary), was boarded by a boat from the war steamer "Orinoco," and, notwithstanding that the Captain of the "Grace" exhibited to the officer in charge his clearance from the authorities of Tabasca, the receipt for the export duties paid on the cattle and hides, as well as his clearance from Port of Spain and certificate from the Venezuelan Consul there, his vessel was forcibly taken possession of, under the pretext that the cattle had been smuggled, taken in tow by the "Orinoco " and brought to Guiria, where a Court was held, the vessel and cargo condemned, and the Captain sentenced to a fine of 2,000 dollars or two years' imprisonment; and the sentence of this Court was upheld on appeal to the Tribunal of First Instances of Cumaná.

These are the facts of the case; and, in my judgment, the capture was unjustifiable, and the condemnation of the vessel and cargo contrary to the law and every principle of justice.

The first step in the downward path of wrong is taken by the Commander of the "Orinoco," in taking forcible possession of the "Grace" and towing her to Guiria. The second is taken by the Administrator of the Custom-house there, who, instead of releasing the vessel or consulting his Government on the exceptional character of the capture, proceeds with indecent haste to obtain her condemnation. The last, and most notable, is that of the Judge who confiscated the vessel.

That the "Grace" sailed from Trinidad on a lawful voyage is incontrovertible, and there can be no better proof of honesty of intent than in showing that this voyage was in regular sequence to four preceding voyages, the "Grace" having loaded at Barrancas on the 17th July and 20th August, and at Pilones, with the permission of the authorities of Barrancas, on the 19th September and 20th October, 1861, as proved by document marked No. 5.

It may be argued that she ought to have proceeded to her port of destination, but it must be borne in mind that the authorities at Tabasca would not permit her to ascend the river, and that it is a matter of history that in December, 1861, the third year of the war of the Federation, Barrancas, the port of destination, was also in possession of the Federal party, and that it is not pretended that commerce, either in the Manamo branch of the Orinoco, or at Barrancas, was either then, or at any subsequent period, interdicted by the Government at Caracas.

It may also be argued that the "Grace," under the circumstances, ought to have left Tabasca without taking in cattle. No doubt it would have been more prudent to have done so, but to have returned to Trinidad without taking in cargo would have entailed a severe loss upon the owners, which the captain was naturally anxious to avoid; and even supposing that the captain did wrong in taking in these eighteen head of cattle, it cannot be denied that the punishment meted out was terribly hard and disproportionate compared with the wrong alleged to have been committed; but it must be borne in mind that the legal export duties on the cattle taken on board were paid to the authorities de facto at the port of lading, that everything was done openly and without any attempt at concealment. Where, then, is the proof of smuggling? To smuggle is secretly to export or import dutiable goods without paying the duties imposed by law. The duties in this case were paid, and the Commander of the "Orinoco" or the Administrator of the [193]

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custom-house at Guiria at most could have demanded a repayment of these duties, which the captain of the "Grace" could have paid under protest, reserving to himself the right to claim their return. But no, the Commander of the " Orinoco" and the Administrator of the custom-house at Guiria were both interested parties, as we shall presently see, and precedent was against any such demand for repayment of duties, as I am informed the Federal party under General Aguado held La Guaira for some time in 1859, and when retaken the Government at Caracas made no demand on the merchants of La Guaira for a repayment of duties paid by them during the period the Federal party were in possession of that port.

We come now to the sentence of the Court held at Guiria, which confiscated the vessel and cargo, and condemned the captain to a fiue of 2,000 dollars or two years' imprisonment; and it will be well to compare the judgment of this Court with the sentiments expressed by the Federal Colonel Andres N. Benavides in releasing the vessel at Tabasca.

That the Judge in passing sentence was morally convinced of the injustice he was about to commit is proved by his own words, as he starts with the hypothesis that the judgment he is about to pronounce may give rise to an international question, and he

elaborates this idea as follows:

"The Tribunal in sentencing this case is well aware of the moral and pecuniary responsibility it may incur, is aware that its decision may give rise to an international question, and is also aware that in such a case the Republic would have to come in contact with a Power extremely sensitive to the interests of its subjects, as from the increase or detriment of the same arises the increase or diminution of mercantile transactions, the sole basis of its economical system."

Would a judge conscious of the rectitude of his purpose, strong in the faith of the justice he was about to administer, have premised the judgment he was about to deliver with remarks like these? Does not this very introduction show the inward conviction he felt that his judgment would be questioned, would be the subject of an international claim by reason of its partiality, its sophistry, and its straining of every point of law, so as to show a colourable pretext, false in law and faise in fact, to enable him to condemn the vessel and cargo? I think a brief review of the judgment will clearly prove this.

The Judge proceeds to say, The depositions in the Sumario,' having been taken without the requisite formalities by the Commander of the steamer Orinoco,' are of no value in law (Art. XXXIV, 4th Law, 1st Title of the Code of Judicial Procedure). The depositions of Bonttur, although ratified under oath, are of no avail either, he having declared that he was an interested party (8th Law, 16th Title, 3rd Part). Those of the Master Ruperto Garrido, are in the same case, because, being the Chief of the vessel, his declaration in his own cause is of no value, according to the same law, and, finally, those of the sailors are radically vitiated, because, in addition to their wanting impartiality, as explained by Escriche in his doctrine respecting personal evidence (the 4th Law, 1st Title, 31st Art. of the Code of Judicial Procedure) declares servants unable (inhabiles) to bear witness in favour of their owners ('duénos'). It may be argued that sailors cannot be so called, as neither Gregorio Lopez, in his Glossaries, nor the Dictionary of Legislation, nor the Spanish Codes of Commerce, nor the Home Legislation (Leiges Patrias'), call a sailor a servant, but in this case (situacion'), and aiming at giving designations (calificaciones') according to the principles of legislation, we would, without effort, deduce that, for the effects of law, sailors may be considered servants, be it on account of their serving in the dwelling or house of a captain, which is his vessel, be it on account of the amount of the salaries which are in proportion with those of servants ('domesticos), be it on account of the rights that their state of dependence give to those to whom they have engaged their services, or be it from the degree of delicacy and monetary position of those engaged in the duties of sailors. These assertions are coǹfirmed by the doctrines of Domat, who, in his Civil Laws, states: Those who are under the dependence of him who wishes to make use of their testimony may not declare,' and, by the author of the Manual del Abogado Venezolano, which establishes that an individual may not be a witness for a person on whom he should be so dependent, that it is not probable he would otherwise bear witness but in the form demanded (13th Title, sect. 7th). Nevertheless, under the supposition that the depositions of the sailors, as competent witnesses (legitimad de personas '), should be placed in the balance of justice, they would be null and void, according to the 41st Law, 16th Title, 3rd Part, from their having contradicted themselves on essential points. But, supposing they had not contradicted themselves, they would still be singular (singulares'), and their asseverations would not be valid in law (no havian fé'), because their singularity (singularidad ') would be of an adversative ('adversativa') and not of a cumulative (cumulativa') character, which,

according to Tapia, is the only kind of evidence which can in such cases fully establish a proof. The deduction, consequently, is, that under all points of view, the depositions of sailors are of no avail according to law."

Do these remarks read like the sentence of a Judge who had carefully weighed the evidence in the case, and who was anxious to mete out justice tempered with mercy, or like specious special pleading in favour of the confiscation of the vessel and cargo?

The evidence of the sailors clearly proved that the captain's proceedings were bond fide throughout; and, if admitted, the vessel and cargo must have been released, so to effect the purpose of the Judge, the evidence of the sailors had to be declared inadmissible; and it is notable that neither the "Procurador" of the nation, or the Judge, objected, either before the sailors had given their evidence, or at any subsequent period anterior to the delivery of the sentence of the Court, to the reception of their evidence. Had they done so, it would have given the advocate for the captain and owners an opportunity of arguing the point; and it is still more notable that this point on which appeal is made, the point vital to the applicants, is passed over in silence by the Court of Appeal, which, to mark its virtuous indignation, confirms the sentence of the Court of Guiria, with the addition of a fine of double the amount of duties it is pretended ought to have been paid, half to go to the National Treasury, the other half, together with the proceeds of the sale of the vessel and cargo to be placed in the hands of the Administrator of the Customhouse at Guiria, to be by him divided amongst the captors.

The sailors were not made parties in the case; and it was not pretended either by the "Procurador" of the nation, or the Judge, that they were participes criminis; but it is on the ground that they were domestics that their evidence is declared invalid; and this conclusion is arrived at by the wonderful chain of reasoning, that a vessel is a captain's house, and that sailors being employed on board, must necessarily be his domestics, and therefore incompetent, not by the Spanish codes of commerce in force in this Republic, nor by the laws of the country, but by this extraordinary deduction, to declare the facts under oath, because those facts were favourable to the case of the captain and owners.

I contend that the weight of the authorities quoted by the Judge himself are in favour of the admission of the sailor's evidence, and that the ruling of the Judge was contrary to law and every principle of justice, and that therefore the claimant has a right to recover, through the medium of this Commission, the value of the vessel and cargo wrongfully confiscated, as well as a fair compensation for the injury sustained.

There is a clerical error in the document No. 4, B, which, however, is of no importance, as the error is self-evident, and proved by the succeeding line of the samedocument. It is in the date which reads, "Novembre 30 de 1862," which should have been "1861," as proved by the line which follows, "Ano 3, de la Federacion," which was 1861; and further proved by the certificate appended to the document by the late Major Mathison, British Vice-Consul at Ciudad Bolivar, on the 20th June, 1862, while, on an official visit to Barrancas, thus showing that the document must have been issued in November 1861, and not 1862; and still further proved by documents of the same nature, presented to the Court in Guiria, December 13, 1861, which form part of the proceedings of that Court.

Mr. Francisco V. Bonttur.
Judgment of Señor Mora, Umpire.

Caracas, June 2, 1869.

In this case of Mr. F. V. Bonttur, subject of Her Britannic Majesty, my award is, that the Government of Venezuela pay to him, or his legal representatives, the sum of 13,000 dollars (pesos, legal currency of Venezuela), for the value of the sloop "Grace," and its cargo, and for all losses, damages, and consequences whatsoever, arising therefrom.

(Signed)

GUILLO. TRIBARREN MORA,
Umpire by Lot.

To the British Commissioner in the Mixed Commission

of British Claims on Venezuela.