AVES ISLAND. 345 



be the subject-matter of tlie contract, tben tbe following doctrine must 

 be applied to him : 



"The second point which we have noted down, is not susceptible of 

 much controversy, and all the doctors agree in proclaiming the fol- 

 lowing maxim: Protestatio contra factum nil 7'elevat. In fact, what 

 should a protest avail when the act, against which the protest is made, 

 cannot be maintained on any other ground than on that of renuncia- 

 tion?" 



For instance, if I pay an amount which I owe, protesting in the act 

 that I do not renounce the right of prescription, there is, in that case, 

 in my conduct a flagrant contradiction, which destroys entirely the 

 value of my protest, and warrants its being considered as unwritten ; 

 because, if my indebtedness be barred by limitation, there is nothing 

 to compel me to pay it, and if I pay it, it is because I renounce the 

 right of prescription. The act is bound to carry more effect than can 

 empty words ; a real, eflective, and voluntary payment is more telling, 

 more worthy of consideration than lip reservations and words, often 

 scarcely weighed. (Troplong's Treatise on Prescriptions.) 



Mr. Eames does this, and nothing else. He sustains a claim which 

 necessarily implicates the sovereignty and dominion of Venezuela over 

 the Aves Island ; but, at the same time, he protests against the effects 

 that must result from his intervention in the matter, by closing the 

 door against another matter. In other words, the island belongs to 

 the republic, when she is wanted to grant its usufruct to Wallace's 

 transferees ; but it no longer belongs to the republic when she wishes 

 to discredit the pretentions of the claimants. If the guano be not 

 given to Pickrell she is threatened with a rupture of the friendly rela- 

 tions existing between the two countries : if the value of the preten- 

 sions of the present claimants be not acknowledged, the same good 

 understanding is brought into jeopardy. In requirements thus con- 

 flicting it is no easy matter to alight on the means of pleasing and of 

 securing the peace and friendship of the two States. There is no as- 

 surance that what is requested and preferred as necessary and most 

 pressing may not, in other circumstances, be converted into a wrong 

 which would also suggest a necessary and most urgent reparation. 



Be this as it may, there is, from what has been shown, abundani 

 reason for denying -any value or consequence to the reservation made 

 by Mr. Eames in behalf of the claimants ; at the very time, too, when 

 he was working, sustaining as he did, even to the extent of threats, 

 the reinstatement of the rights conferred on Wallace, or, what amounts 

 to the same thing, the inclusion of Aves Island in the Pickrell contract. 

 Venezuela, therefore, is bound to insist on all the arguments which she 

 has alleged on this head. 



Mr. Eames has not confined himself to pretending that the Ameri- 

 cans are not held to prove the legality of their conduct, but he actually 

 shifts the burden over to Venezuela, which he calls the aggressor. He 

 has gone further, and declared that whatever pretension to title is pre- 

 ferred by Venezuela in Aves Island does not present sufficient grounds 

 to justify a discussion ; and he said this after having stated that he had 

 not expected to be told that Aves Island belonged to the republic pre- 

 vious to 1854^ as the successor to the rights of Spain that discovered 

 that island . So that, whilst he wishes to put the burden of proof on 



