(Translation.)

Mr. Oliver Romberg.

Judgment of Dr. Mendez, Venezuelan Commissioner.

In February 1859, Mr. Rupert Beauperthuy passed over to the citizen Simon Nuñez in payment of the sum of 600 dollars, amount due to this latter, being balance of a liquidated credit, the right of reclamation for injuries inflicted on his estate "Monte Cristo," owing to the Revolution of 1853.

Nuñez at once took advantage of this transaction, and with a justification ad pepetuan, which he instituted respecting certain forces under the orders of General José Tades Monagas, which in July of that year were encamped at a distance of a fourth of a league from the said estate, occasioned thereto injuries to the amount of 3,239 dollars, entered into a suit against that General, who at the time did not reside in the Republic, and the suit being continued with the intervention of citizen Luis Mijares Crespa, officiating on behalf of the absent party. Nuñez obtained a sentence in April 1860, by which the defendant was condemned in the payment of the 3,239 dollars, together with interest from July 1853 up to the date of payment, at the rate of 1 per cent. per month, and thus obtained a mandate of execution on the properties of the party condemned. Afterwards, (April 28, 1860) an arrangement was entered into between Nuñez and Mijares Crespa, in which it was estipulated that the debt should be paid (5,894 dollars), together with 371 dollars 25 cents for expenses, by means of cattle taken from the "Tigre" (a stock estate belonging to General Monagas), which Nuñez would receive at the price of 5 dollars per head, not to be under 1 year old, the expenses of their collection being for his account. This arrangement was approved of by the Judge of the cause on the 1st of the following May.

Thirty-four months after, (February 12, 1863) Romberg makes a representation to the Government of Maturin in opposition to a resolution of that Government which forbad the extraction of cattle from the "Tigre," showing that he was owner of the rights of Nuñez, and that being occupied in pursuance of said rights, he had suffered interuption in his work through the above-mentioned resolution, and thus subjected to considerable loss; and he presented, together with the titles of Nuñez, a document of a private character in his favour, signed by Nuñez, under date of December 30, 1862. The Governor maintained his Decree (14th February), and said that its principal bases were that the cattle had been taken from the "Tigre" by the authorities for the public use, in conformity with the Decree of the 4th of April 1859, and in conformity with the law of the 13th of July, 1860, it being left to the plaintiff to repeat against the values for which, on this account, General Monàges had been given credit, in consequence whereof Romberg made his protest (February 18), which protest remained valueless as to its effects, inasmuch as no person was notified in respect thereto. Such are the facts.

It is natural to inquire at once, why did Romberg not present his claim in 1863? Why did it not appear among the affairs which in 1865 occupied the attention of Mr. Edwardes, or why had not the Government of Venezuela even knowledge of its existence? I cannot reply to these questions; but to judge from the nature of the case it appears that some special opportunity was waited for, which was found in the meeting of the present Commission, to which it has just now been sent after a lapse of six years.

It is not my province to investigate what are the rights of Romberg, nor against whom he should exercise them according to the laws of the Republic. I prescribe myself to sustaining that this claim ought not to be treated diplomatically, and that therefore it should not be resolved upon by the Mixed Commission of which I form a part. Let us enter upon the question.

Can the purchase made by Romberg be considered as part of his property of which he was despoiled by the Governor of Maturin for public use? By no means.

Romberg did not purchase, in fact, cattle; and even had he so purchased, there is no evidence that the purchaser, being in full and peaceable possession of cattle, these had been taken away from him by orders of the Governor of Maturin.

What Romberg bought was a contract entered into between Nuñez and Mijares Crespa (April 28, 1860) by which the former acquired the right to receive in payment of the sum of 5,894 dollars and 371 dollars 75 cents, cattle from the "Tigre" at the rate of 5 dollars a head, the expenses to be paid by Nuñez. And was that contract confiscated by the Governor of Maturin, to turn to the benefit of the nation the rights which might be derived through it? No! The Governor of Maturin did not take possession of any such rights possession of which Romberg held, and holds, and can make them good according to the laws of the country. Nor could such rights exclude in any way the rights

of another party, much less those of the Government, to take with preference the same cattle, as no judicial embargo had been granted in favour of the credit of Romberg, the only measure which would have given him a right over such part of the cattle corresponding to his entire credit.

But the right purchased by Romberg being limited to receive in payment cattle from the "Tigre," agreeably to this phrase:-"With cattle which he will receive on the above said stock estate, at the rate of 5 dollars per head, which he will collect at his own expense." Could Romberg allege then when he collected cattle in order to pay himself, he exercised a legitimate right? No! On the contrary, he committed, in fact, an act of spoilation. The transfer of a thing is only perfected by its delivery to the person who acquires it:-"Quia non pactionibus sed traditionibus dominia rerum transferuntur," says the law. This being the case, under what authority did Romberg proceed to take possession of the cattle? It was not under the contract between Nuñez and Mijares, because it was stipulated explicitly that the delivery was to be made, "With cattle which he will receive," It was not under the law which admits a transfer as the title of property. Whence arose, then, the right of Romberg to collect cattle at his discretion, and much less his pretension that he acted with an exclusive right? Be careful, sir, that on the contrary a serious responsibility does not affect Romberg on account of his discretional proceedings.

Besides, it was a point of law, that when the cession, or transfer, of titles was to be carried into effect it should be done with certain formalities, the person making the transfer having to deliver to the person in whose favour it was made sufficient power for him in his own name to make good the rights ceded to him, although for account and risk of the person who made the transfer; for which reason the latter was styled "the procurator of his own cause." This rule, acccording to jurisconsults, removed the impediment to the transfer of rights involved in the purely personal character of the stipulation. And it was likewise, and is yet, a point of law that such cession or transfer must be notified in due form to the person on whom it was made, in order that the latter may properly comply therewith in respect to the person holding the transfer, and also that he may in due time make the objection of a right to compensation, or of any other right to which he may be entitled in regard to the said party. Well, none of these forms have been complied with. Nuñez did not cede his rights in due form in his sale to Romberg (1862); nor did Romberg notify Monàgas, or his representative, according to law, of the acquisition he had made of the rights of Nuñez; on the contrary, after some time, taking advantage of the circumstance that the Government of Maturin had placed a body of troops on the estate "Tigre" for the purpose of collecting cattle for the use of the National army, he hurriedly proceeded, hospite insolitato, to collect cattle on the said estate at his discretion.

I have been obliged to touch upon some points of law in order to bring clearly before you the fact that affairs similar to that of Romberg, speculations more or less exposed in this country, and much more so during the period of Revolution which terminated in July 1863, are not, nor can they be, matter for diplomatic intervention, but must be submitted to judicial decision within the Republic. If, every time that a foreigner thinks, or pretends to believe, that a right emanating from one of the many transactions (not unfrequently sordid transactions, owing to the abuse of his condition as foreigner), has been disallowed him or has been infringed, his demands are attended to by the Legation of his country, and discussed diplomatically, the laws and authorities of the Republic would be reduced to nullity in respect to the affairs of foreigners, and the Venezuelans who deal with them must understand that they are subjected to diplomatic jurisdiction.

Let Mr. Romberg, therefore, make good his rights as, when, where, before whom, and against whom the laws of Venezuela allow him to proceed. And, in fine, let him suffer the consequences of that class of speculations, with the understanding, for his Government and that of others who may be claiming, or who may pretend to claim as he does, by diplomatic means, the rights and questions of civil jurisdiction, that the Treasury of Venezuela is not an Insurance Company, from which indemnifications are always to be obtained, with the advantage of there being no premiums to be paid.

I therefore trust that you, Sir, in whose sound judgment and characteristic rectitude I confide, will not contribute with your vote to foster the pretension of the claimants to convert the Legations of friendly Governments into Courts of Justice, whereby many vexations and embarrassments are caused to them, and many complications and troubles occasioned to the Republic.

Mr. Oliver Romberg.

Judgment of Mr. Joel, British Commissioner.

THIS is a claim against the Government of Venezuela for denegation of justice. The facts of the case, which are briefly as follows, are fully recited in the voluminous documentary evidence presented by the claimant to substantiate his claim.

A French subject named Beauperthuy commences a suit at law against General Monágas, Commander-in-chief of the forces at Maturin, for the value of property violently taken from his estate by the General's orders, and during the progress of the suit Beauperthuy assigns, for value received, his interest to a Mr. Simon Nuñez, who continues the suit, which terminates March 29, 1860, with a judgment against General Monagas and execution against his property.

On the 28th April, 1860, the attorney of General Monagas enters into an agreement with Nuñez, which agreement is ratified on the 1st of May by the Court which issued the execution, that the execution shall be liquidated by the removal of cattle from an estate of General Monágas called El Tigre, at the rate of 5 dollars per head, all the expenses attendant on the removal to be paid by the remover.

On the 30th December, 1862, Oliver Romberg, a British subject, engaged in the cattle trade, purchases from Nuñez, for the sum of 2,000 dollars, the judgment and execution against General Monágas, with the object of removing cattle in liquidation of the judgment. The document constituting and proving the purchase (page 26) is in due form of law, on stamped paper, and duly subscribed to by three witnesses.

Romberg at once proceeded to purchase horses, engage labourers, and to incur other expenses necessary in the recovery of cattle in the wild state in which they exist in the estates in this country; but as soon as he commenced to recover the cattle the Governor of the province, without authority of law and in direct violation of every principle of justice, interfered by sending an armed force to prevent their removal, assigning as his reason, "that the cattle may be required for the sustenance of the troops, and to meet the expenses of the civil war in which the province was then engaged."

On the 16th February Romberg protested against the arbitrary proceedings of the Gobernador, and now seeks to recover the amount of the judgment, still unsatisfied, from the Government of Venezuela.

That Nuñez did not, from the date of his agreement with the attorney of General Moriágás, April 28th 1860, to the date of his sale to Romberg, December 30th, 1862, make any attempt to recover cattle in liquidation of the judgment need create no surprise or prejudice against the claim, when we remember that during the whole of this period the war of the Federation was raging and the country in a state of anarchy. Nor does the fact of the claim not having been presented by the Honourable Mr. Edwardes to this Government in 1865 at all affect its merits. The claimant would have been in no better position had this been done, for though the Honourable Mr. Edwardes did arrange with the Government of Venezuela some claims of this nature, no payment has been made on account of them up to this date.

In my judgment the sole point for consideration of the Arbitrator is, whether the acts of the Gobernador of Maturin constitute such a case of denegation of justice as to render his Government responsible to the claimant.

Mr. Oliver Romberg.

(Translation.)

Judgment of Stürup, Umpire.

Caracas, March 15, 1869. MESSIEURS, the Members of the Mixed Commission charged with the adjustment of British claims.

I have received the collection of documents (expediente), of the claim of Oliver Romberg, a resident of Maturin, which you transmitted to me with your notes of the 18th and 22nd of January last, submitting the decision of the case to my judgment as Arbitrator or Umpire; and having, within all the attention that the case calls for, made myself acquainted with the proofs contained in the said collection of documents, and taken into consideration the observations you have been pleased to make to me, I proceed to reply.

In the first place I must express my opinion that I consider the Commission as a

Court of Equity which has to judge the affairs submitted for its decision, having in preference, regard to what it believes to be just and equitable, than to exactness in the fulfilment of legal formalities and proceedings; and with this impression and based on the same principle, it is that I am going to give my judgment in the present case free from every other consideration but that of justice.

From the documents it appears that the Tribunal of first instance of Maturin by sentence of the 29th of March, 1860, condemned the late General José Tadeo Monágas to pay to Simon Nuñez the sum of 3,239 dollars (for losses suffered in a property of Felipe Beauperthuy, who had ceded his right to Nuñez), with interest at the rate of 1 per cent. a month, from July, 1853, up to the date in which the payment should be made, as also the costs of the lawsuit; for the payment of which the attorney of Monágas offered the cattle estate called "El Tigre" that the interested parties entered into an agreement, which was afterwards ratified before the Parochial Court of the same City; that to avoid further expenses, Nunez would be content to be paid the 5,894 dollars 98 cents, the then amount of the claim, with the interest due thereon, in cattle, which he was to receive in the said cattle estate, at the rate of 5 dollars for each head of cattle of not less than one year old, the animals being caught by him at his own expense; which agreement was transmitted by the said Tribunal to that of First Instance, and was afterwards formally approved by the latter in sentence of the 1st of May, 1860, that on the 30th of December, 1862, Simon Nunez sold the right he held in virtue of the abovementioned sentence and subsequent agreement, to Mr. Oliver Romberg, for the sum of 2,000 dollars, which he received on the spot, the document of sale being signed by three witnesses that Romberg immediately proceeded to purchase animals, and to take other measures necessary for catching and receiving the cattle in the said cattle estate "El Tigre;" but that he had hardly commenced operations when they were interdicted and stopped by orders of the Governor of the province; and finally, that the said Governor in his despatch of the 14th of February of 1863, in reply to a representation of Romberg, in no manner disputes the rights of the claimant, and only assigns as the reason for his order that the cattle existing on that and other cattle-estates ought to remain as a resource wherewith to attend to the subsistence of the troops of the Government and other expences which the war occasioned.

The result, therefore, is that Romberg acquired a lawful right to catch and receive from the cattle estate called "El Tigre" the number of head of cattle sufficient to liquidate the amount in question, and that he was interdicted in the exercise of that right by order of the Supreme Executive authority of the province, who thus interrupted the execution of a judicial sentence.

I must here observe that I do not at all approve of foreigners speculating in the political events of the country, and that they should make themselves the possessors of the rights of the natives to bring the same forward afterwards in the form of a claim; and, in proof of which, I have disallowed the presentation of several claims of Danish subjects of the same nature. But I do not see that Romberg could have had such an intention at the time he acquired the rights of Nuñez, since he purchased them on the 30th of December of 1862, and towards the beginning of February he was ready to catch the cattle, which proves that he acted in good faith, and only intended to possess himself of what belonged to him.

If Monágas or his attorney, or any other private individual, had impeded his taking the cattle, I would also say that it was a question to be simply ventilated by the Judicial Authorities, before whom Romberg would have to appear, and it would not have been permitted that he should present a claim through the Representative of his nation; but the fact of the Governor of the Province intervening in the affair, and of his own authority, impeding Romberg in the exercise of a right he lawfully possessed, subjecting him to a denial of all justice, since against that mandate there was neither appeal or resistance of any avail, this totally changes the nature of the question, for the Governor intervened without being therein authorized by any law of the country; and, as a Governor is an agent of the National Government, it is the latter who must indemnify the claimant for the losses he has been subjected to. The said conduct of the Governor is the more serious, inasmuch as he only reserved the cattle for necessities that might occur, whilst he occasioned a positive and immediate loss to Romberg.

However, I do not wish the speculations of foreigners in affairs which may become the subject of international claims to be favoured, 'no matter how lawful in other respects, and as it appears from the document of sale that Romberg only paid 2,000 dollars for the right he purchased, I judge that he should be only paid the same sum, with interest at the rate of 6 per cent. per annum, to count from the date of the purchase to the present day, which gives as a result the sum of 2,750 dollars, the capital to be recognized

in favour of the above-mentioned Olivier Romberg, which capital will gain interest for the future at the rate which the Commission may establish for all the other British claims.

Such is the conclusion I have arrived at, judging the affair to the best of my knowledge and understanding; and I have the honour to communicate the same to you for the subsequent ends, returning, at the same time, the collection of documents ("expediente.")

I am, &c.

(Signed)

GUILLO. STURUP, Umpire by Lot.

(Translation.)

Mr. John Giuseppi.

Judgment of Dr. Mendez, Venezuelan Commissioner.

AS you have been elected by lot to resolve the following case of difference between the British Commissioner and myself, I proceed to present to you the reasons on which I base my opinion.

Mr. John Guiseppi claims from the Venezuelan Government above 24,000 dollars, as the capital only, according to the bases he presents, for the value of animals, he says, were taken from him out of the cattle-estate called "El Roble," belonging to the late General José Tadeo Monágas, in the province of Barcelona, during the war of the Federation, by the forces of both belligerent parties. Mr. Guiseppi does not adduce any documentary proof, circumscribing himself to the depositions of witnesses obtained in Barcelona by his attorney, Mr. Pacifico Monágas.

The justification instituted on the 15th of July of 1865 contains in the first particular the details respecting eight kinds of animals of different ages, specifying the number which existed of each kind in the year 1859; and in the third particular it also contains the details respecting the value at that time of the said animals according to their ages. All the witnesses, with the exception of the citizens John A. Sotillo and Francis Deffendini, answer in perfect conformity respecting those points, and most of the others of the interrogatory. This in itself predisposes our animus against such depositions, because it is not acceptable to a good criterion that amongst eight individuals there should not be the slightest divergence in a case in which there are eight different combinations of numbers respecting the number of each of the eight kinds, and the ages of the animals, between the numbers of 30 and 175 each one, and in which there are many more combinations in reference to their value, according to their respective ages; unless each witness had assigned as the reason for his statement that the eight witnesses had gone collectively, on a given day, to count the animals and form the due estimate of their value, taking correct notes of everything.

In the first place I discard in full the statement of the citizens Fernando and Fabriciano Rojas (folios 4 and 6), because deficient in the form, not having been ratified in presence of the Fiscal Representative, as provided for in the 4th rule of the 28th Article of the Law on Public Credit of the 16th of June of 1865, a formality which could have been fulfilled up to the 31st of December of the same year, in conformity with the 3rd Article of the Decree of the Executive of the 1st of July of that year, fixing a term for the presentation of claims. And I avail myself of the opportunity to observe to you that the legality or illegality of depositions not ratified in the form above-mentioned, and the faculty itself of resolving upon such a point are not matters which are within your competence to decide; because this very subject, which, in my opinion, involves the understanding of the clauses of the Diplomatic Convention of the 21st of September last, having reference to the powers of the Commissioners and of the Umpire, is as yet pending, after long discussion, on account of a consultation addressed to the British Government by their Commissioner.

All the remaining witnesses are the citizens Juan A. Sotillo, Francisco Deffendini, Vicente and Francisco Carvajal, Miguel and Elias Castillo, Florencio Colon, and Francisco Javier Barboa. Let us examine their depositions.

Witnesses must be legally able to declare, must be eye-witnesses, and their depositions must accord as to the person, fact or case, time or place, and they must manifest in what manner they are aware of what they affirm. Thus it is prescribed by