scarcity of cheap transport and the high freights. Judging from the half-year's reports furnished by Wheelwright to the Bolivian Government during 1877 and 1878, there can be little doubt but that the exploitation of the mines had been carried on at a loss up till the outbreak of the war.

"The actual effect of the Chilean occupation of the province on the mining operations of the firm of Alsop is not very clear; but the Chilean Government states, and, so far as can be gathered, correctly states, that Wheelwright was left in possession of all the mines of which he had been able to obtain the control. His position, however, was very materially affected in respect of mines of which he had not been able, up till then, to obtain possession. The obligation of the Bolivian Government to assist him to obtain possession of any particular mine was one they were no longer able to carry out, and the rights of the Bolivian Government to these 'estacas' were rights upon which Wheelwright could no longer base his claims to the possession of the mines.

"Two decisions in the Chilean Courts demonstrated the change which the Chilean occupation had effected. The first was the decision in the case of the mine Justicia,' in an action brought by Wheelwright to recover an estaca' which had been erroneously included in other mines. Wheelwright claimed that the owners of these latter mines were bound to put him in possession of the 'estaca.' The Court of Second Instance, on appeal, decided against him on the ground that Wheelwright's contract was, with regard to the mines, one of anticresis'; that the particular estaca' to which the suit related had not existed in fact during the Bolivian dominion, and could not now be created; that with regard to it the 1876 contract had not been actually carried into effect by the handing over of the real property, and that his claim therefore failed.

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"The second decision was one which related to the mine 'Amonita,' where the action was brought against an occupier in possession and a declaration was asked for that the mine belonged to the Bolivian State, whose rights Wheelwright represented. The Court admitted that the Amonita' was a Government'estaca,' but decided that the Government 'estacas' were among the Bolivian Government possessions which had passed to Chile; consequently, as Wheelwright's right to the mine was not a real right, but only a right of anticresis,' and as he had not obtained possession, his title was not one which a conqueror was called upon to respect, nor did it prevail against a private person who was in possession. Against this decision no attempt was made to appeal.

"The effect of these two decisions must have been to deprive Wheelwright of the means of obtaining possession of 'estacas' in the occupation of persons with an adverse title. They probably also rendered it necessary for him to work the mines of which he had obtained possession in order to prevent any third party gaining a good title. They did not, however, deprive

Wheelwright of the possession of any mines of which he was in occupation.

"The deductions which the Government of the United States draw from these decisions are very far-reaching. They contend that the decision deprived Alsop and Co. of private rights which they held under the Wheelwright contract, and constituted a violation of the modern principle of international law that a conqueror must respect private rights. Upon them is therefore based a claim on behalf of Alsop and Co. to a sum of 508,538 dol. 14 c., made up as follows: 333,823 dol. 91 c. represents the profits which the concessionnaires calculate they would have obtained from certain profit-bearing estacas' of which they ought to have been enabled to obtain possession; 61,013 dol. 43 c. represents sums expended in working mines to prevent their being denounced by others; 48,340 dol. 91 c. represents expenses of litigation rendered necessary by these decisions; and 65,359 dol. 89 c. represents the expenses of increased working staff rendered necessary in the same way. In all cases these sums include interest calculated up till the signing of the Protocol of Submission in 1909.

"The essence of the United States contention is that the rights of Alsop and Co. to these mines under the Wheelwright contract, whether the firm were in possession of the ' estacas' or not, were landed property rights, and that Chile was bound to protect such rights, either by applying Bolivian law to the interpretation of the contract, or even by enacting laws for the purpose if her own laws were insufficient, and that, as the Amonita' and 'Justicia' decisions did not protect the rights of Alsop and Co. in the 'estacas,' these decisions constituted violations of international laws for which Chile is liable in damages. No suggestion is made that the decisions were corrupt, and with regard to one of them it has been stated that there was no appeal.

"These contentions do not appear to us to be well-founded. The right which Alsop and Co. possessed under the Wheelwright contract to work a particular 'estaca' was merely a contractual right against Bolivia; until they had secured possession of the 'estaca' they had nothing which could fairly be described as 'property."

"The outbreak of the war and the occupation of the province by Chile deprived Bolivia of these Government 'estacas.' It also put it out of her power to carry out her obligation under the Wheelwright contract to facilitate the acquisition of the 'estacas' by Alsop and Co., but though the 'estacas' passed to Chile she did not thereby become bound by Bolivia's contract to put Alsop and Co. into possession; she was under no obligation to facilitate the transfer of the 'estacas' to Alsop and Co. in order that they might use them to obtain money for the payment of a debt owing by Bolivia.

"Where the rights of Alsop and Co. to a particular estaca' had been converted into 'property' by the firm obtaining possession, their rights were not affected by the 'Amonita' and

the Justicia' decisions, except that it might become necessary to work the mine, which, if it were worth working, would have been no injury. Where no possession of a particular 'estaca' had been obtained, the firm had merely a contractual right, which the war put an end to so far as regards Bolivia, and which was not valid against Chile.

"The decisions of the Chilean Courts, therefore, in the cases of the Justicia' and the Amonita' do not, in our opinion, afford any real ground for the contention put forward by the United States.

"This matter may be regarded from another point of view. Your Majesty is acting as amiable compositeur,' and is free to look at the essence of things without too strict a regard to technicalities, and from that point of view also it appears to us that the claim put forward on this head is not one which should be approved by your Majesty.

"It is to be observed that in respect of the mines of which Wheelwright had obtained possession and which he had worked, the general result, though one or two mines might have been remunerative, was not favourable to him, and with regard to the 'estacas,' of which he had not obtained possession before the Chilean occupation, it can hardly be assumed for the purpose of assessing damages that, even if the imposition of Chilean law denied him the right of entering into possession of other mines which he might possibly have obtained under Bolivian law, the result would have been profitable to him.

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Further, it is fairly clear from the facts that, whatever might have been the theoretic strength of his position under Bolivian law, he had not in fact been able under that law and Administration to obtain possession of the mines which he alleged to be Government estacas' which were in the occupation of other persons. His complaints to the Bolivian Government on this head show that in fact he was no better off under the Bolivian Administration than he was under the Chilean, and there is really nothing to indicate even a probability that he would have obtained possession of these 'estacas 'if Bolivia had continued in occupation of the territory in which they were situated. So far as it goes, the evidence is all the other way.

"Chilean law and Chilean Administration left him in possession of the mines he had occupied. They did not help him to oust others who were in possession of mines he had not occupied, and which were being worked by other people, and of which under Bolivian law and Bolivian Administration he had not been able up till then to obtain possession.

"Further, if your Majesty should be pleased to adopt the recommendation we shall venture to make, at a later stage of this report, the principal object of the concession will be satisfied, which was to provide for the repayment of the debt of 835,000 bolivianos and interest. If this obligation be met, we do not think that Wheelwright can substantiate any equitable claim for damages in respect of possible profits he might have

made for himself if he had been able to get possession of more of the 'estacas.' There is really nothing to indicate that such profits would have arisen.

"The only plausible ground from his point of view on which to claim damages is that he spent money to prevent strangers acquiring a title by adverse possession, which would not have been necessary if Bolivian law had been applied in the construction of the contract.

"If, however, the mines could be made profitable, this involved no hardship and no ultimate loss, and if they were worthless, there was no occasion for him to spend the money, while the requirement itself is reasonable, and may be justified as being in the public interest. The claim to retain possession of an 'estaca' indefinitely without developing or working it is one of a very objectionable character, and is not, we think, in accordance with the spirit of the contract itself.

"We do not think that, either technically or on grounds of equity, the claimants are entitled to damages under this head, and we can only report to your Majesty that, in our opinion, the claims put forward by the United States based upon an alleged wrongful deprivation of the mining rights of the firm of Alsop and Co. should not be admitted.

"The third ground upon which the United States contend that Chile should pay the Alsop claim is that she has undertaken to do so. Such undertakings are alleged to have been given both to the United States and to Bolivia.

"None of the undertakings given directly to the United States, which are enumerated in their Case, amount to anything in the nature of a contract or agreement to pay the claim. They cannot be regarded as undertakings to pay the claim either in the form in which it is now put forward or in the form in which it was put forward at the time. There is no need to deal with them in detail; many of them are of the vaguest character, others are mere assurances that the claim will be dealt with in the definitive Treaty of Peace when one is concluded between Bolivia and Chile; others are only announcements that the claim has been provided for in such a Treaty, but come to nothing because the Treaty in question was not ratified; others relate to the contemplated Treaty, which was completed in 1904, and are merely announcements as to what will happen when that Treaty is ratified.

"The only one which, as we think, needs express mention is the statement made by the Chilean agent before the Claims Commission which dealt with American and Chilean claims in 1901. The case of Alsop and Co. was brought before that Commission by the United States Government, but the Chilean agent filed a plea to the jurisdiction on the ground that Alsop and Co. was a Chilean firm and that the claim was therefore not within the jurisdiction of the Commission, because the Treaty gave the Commission no power to consider claims on the part of Chilean citizens against Chile.

"The Commission upheld this view, but in doing so they referred to the following passage in the brief of the agent for Chile :

"The Chilean Government has always regarded it (the Alsop claim), and does still regard it, as a liability on the part of Bolivia towards the claimant; and in order to induce the Bolivian Government to sign the definite Treaty of Peace which has been negotiated for many years, the Chilean Government offers to meet this and other claims as part of the payment or consideration which it offers to Bolivia for the signature of the Treaty.'

"The Commission therefore remitted the claimants to the Government of Chile for relief.

"There is in the above passage nothing more than an undertaking to pay the Alsop claim as a claim against Bolivia, and as part of the consideration for a permanent settlement between the two Governments. This was in effect the attitude of the Chilean Government towards the claim throughout the period which followed the occupation of the coast province of Bolivia. The Chilean Government were aware that the Government of Bolivia could not pay the debt, and they had themselves obtained possession of both the sources to which the claimants were to look, under the Wheelwright contract, for money to pay it off. They were willing, therefore, to take over the liability for that and other claims, as part of the general settlement which they desired with the neighbouring republic.

"Offers on the part of Chile to pay the claim as a claim against Bolivia can only be made upon the assumption that Bolivia is still liable for the debt, and the question must first be considered whether anything has happened to terminate Bolivia's liability.

"Bolivia has not paid the sum which she admitted in the Wheelwright contract she owed to Alsop and Co., but it is suggested in the Chilean Counter-Case that Bolivia had in effect been discharged from liability under her contract by reason of the absence of any effort on the part of the firm or of the United States of America to obtain payment of the debt from her, and bankruptcy and the principle of the limitation of actions are referred to as affording by analogy arguments of substance in support of this view.

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It is undoubtedly true that from the time of the Chilean occupation no real effort was made to secure payment of the debt by Bolivia, or even to treat her as the principal debtor, until 1906. But the explanation is not difficult to find. It is the plain fact that Bolivia was not in a position to pay, and no advantage would have accrued from attempts to make her do so.

"The principle of the limitation of actions does not, in our opinion, operate as between States. It is based upon the theory that the party had a right of action capable of being enforced by legal proceedings, neglect of which should in time relieve the debtor from further liability, but as against, or between,