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it embraced in any general settlement of pending claims which it may be found convenient in the future to bring about by a convention between the two Governments or otherwise."
Mr. Porter, Act. Sec. of State, to Mr. Curry, Jan. 2, 1886, MS. Inst.
"This decision of the commission [under the agreement between the United States and Spain of February 11-12, 1871, dismissing a claim for want of jurisdiction], does not prevent this claim from being a proper subject for diplomatic treatment."
Mr. Bayard, Sec. of State, to Mr. Curry, min. to Spain, April 9, 1886,
"The second article of the claims convention of January 15, 1880, with France provides as follows:
"The said commission thus constituted, shall be competent and obliged to examine and decide upon all claims of the aforesaid character, presented to them by the citizens of either country, except such as have been already diplomatically, judicially or otherwise by competent authorities heretofore disposed of by either Government.'
"Under the interpretation put upon the treaty by both Governments, all cases that had been passed upon by prize tribunals were excepted from the jurisdiction of the commission. (Ex. Doc. 235, 48th Cong., 2d sess., p. 235.)
"It is held by this Government that the action of the commission in declaring that it had no jurisdiction of the claim in question in no way bars its presentation to the French Government for payment. I have therefore to request you to recall this claim, including indemnity for the detention of the schooner and the breaking up of the voyage, to the attention of the French foreign office, as one which is believed by this Government to be just and fair, and to urge its early settlement.”
Mr. Bayard, Sec. of State, to Mr. McLane, July 29, 1885, MS. Inst.
The claims convention between the United States and Great Britain of 1853 settled (Art. V.) "every claim arising out of any transaction of a date prior to the exchange of ratifications, whether or not the same may have been presented to the commission." Hence a claim not presented for property confiscated during the war of 1812 was barred.
Mr. Rives, Assist. Sec. of State, to Mr. Gregg, May 12, 1888, 168 MS. Dom.
4. FINALITY OF AWARDS.
(1) RULE OF RES JUDICATA.
The decision of an international tribunal over matters as to which it is made the supreme arbiter is final, and is not the subject of revision, except by the consent of the contesting sovereigns.
Comegys v. Vasse, 1 Pet. 193, 212.
An award of arbitrators, under a treaty between the United States and another nation, by which the contracting parties agree that the decision of the arbitrators shall constitute a final settlement of all questions submitted, becomes the supreme law of the land and is as binding on the courts as an act of Congress.
La Ninfa (1896), 75 Fed. Rep. 513, 21 C. C. A. 434, reversing 49 Fed.
An award was made in favor of R. W. Gibbes, a citizen of the United States, by Mr. Upham, the umpire of the mixed commission under the convention between the United States and New Granada of September 10, 1857, for the sum of $2,500, with interest from July 26, 1826, at the rate of five per cent per annum. The Colombian commissioner declined to sign the award, on the ground that the case. was submitted to the umpire only on the question as to whether a valid claim existed, and that the question of the amount to be paid was not submitted. On February 10, 1864, a convention was concluded between the United States and Colombia for the adjudication of claims which were left undecided by the previous commission. Counsel for Gibbes declined to prosecute the case before the new commission, and it was submitted to the board by counsel for Colombia. The commissioners, on May 18, 1866, made the following order: "Stricken from the calendar and docket, protest being made against the action of the board, and case not prosecuted." After the adjournment of the commission, Gibbes demanded payment from the Treasury. His demand was referred to Attorney-General Hoar, who held that the case was decided by the umpire of the first commission, and that neither the United States nor the second board was able to divest his rights under that decision against his will and without his consent. The Attorney-General, however, expressed a doubt as to whether Gibbes was entitled to payment from the Treasury, since he did not possess a certificate from the commissioners; but Gibbes obtained payment in full, and the amount so paid him was included in the account of the United States against Colombia, and
H. Doc. 551-vol 7-5
the entire amount was afterwards repaid to the United States by the Colombian Government.
Moore, Int. Arbitrations, II. 1398, 1400, 1401, 1410-1411; Hoar, At. Gen., (1869), 13 Op. 19.
"The principle [of arbitration] is one that has been followed on many occasions by this Government in settling disputed claims between its citizens and foreign powers. It has been the custom in these cases to conclude a formal convention with the interested power by which a claims commission is to be formed, to be composed in general of two arbitrators, one to be chosen by the Secretary of State, and one by the minister of the other power, and an umpire, to be likewise agreed upon by the Secretary of State and the minister, whose decisions shall be regarded as final.
"I may add that an agreement so entered into has all the solemnity and finality of a treaty between the powers who are parties to it, and is in no sense an informal reference of a matter of contention between two powers to the decision of the minister of a third party."
Mr. Frelinghuysen, Sec. of State, to Mr. Rosecrans, Oct. 17, 1883, 148 MS.
"The general rule is that when an arbitrator or a referee makes a decision and adjourns without expressly deciding a motion for a rehearing, the decision is left in full force. The motion does not ipso facto reopen the case; and the adjournment without specific action. on the motion by implication denies it.
"With respect to the objection to the decision of the arbitrators, that it is not altogether sound in law, it is to be noticed that by the convention under which the United States and Spanish Claims Commission was organized, the two Governments expressly agreed that they would accept the awards made in the several cases submitted to the proposed arbitration as final and conclusive. This provision was adopted by the contracting parties as an essential part of the arrangement for the settlement and disposition of claims, and with the understanding that it was to be kept as faithfully as any other provision of the treaty."
Mr. Bayard, Sec. of State, to Mr. Rodriguez, Mar. 22, 1886, 159 MS. Dom.
"I have received your letter of the 27th instant, in relation to the claims of M. C. Rodriguez & Co. against Spain, which were rejected by the United States and Spanish Claims Commission.
"I have failed to discover in your letter any reason for changing the opinion expressed in my letter of the 22d instant, that it would be improper, upon the grounds which you allege, for this Government to
seek to reopen the claims in question after their dismissal on the merits by the Commission. It is conceived that the distinction which you draw between a claims commission under a treaty, duly ratified by the Senate, and such a commission under a diplomatic agreement, while material in some relations, does not affect the binding force of the decisions in either case, as between the contracting governments, upon all claims which properly fall within the scope of the commission. The case of the brig General Armstrong, which you cite, does not appear to lend any strength to your argument. For, notwithstanding the denunciations of the award of the arbitrator, no effort was made to reopen the question with Portugal; and in the opinion of Chief Justice Gilchrist, to which you refer, there was an express disclaimer of any denial of the power of the United States to submit to arbitration the claim of one of its own citizens upon a foreign government which it has been prosecuting in such a way as to preclude itself from again pressing that claim upon such foreign governments.'
It is also to be observed that in the cases which you are now seeking to have reopened, the claimants submitted themselves to the commission without protest, and had their cause ably and fully presented. In this regard their present position is the reverse of that of the claimants in the case of the General Armstrong, when they presented their petition to Congress for relief. The only act by which it was attempted to show that they had consented to the submission of their claim to arbitration was the request of their agent to be permitted to present an argument in support of their claim to the arbitrator, and the request the Secretary of State denied.
"Under all the circumstances, I must decline to reopen the awards of the United States and Spanish Claims Commission in the cases now under consideration."
Mr. Bayard, Sec. of State, to Mr. Rodriguez, March 31, 1886, 159 MS.
For the decision of the Claims Commission in this case, see Moore, Int.
As to the case of the General Armstrong, see Moore, Int. Arbitrations, II.
"Motions to open or set aside international awards are not entertained unless made promptly, and upon proof of fraudulent concoction or of strong after-discovered evidence."
Mr. Bayard, Sec. of State, to Mr. Morris, May 12, 1886, 160 MS. Dom.
The rule that the Department of State will not hear, after any considerable delay, applications to reopen cases adjudicated by it, applies even more strongly to final judgments rendered by international commissions on international claims, even apart from the special
stipulations of treaties by which claims not submitted for the adjudication of such commissions may be barred.
Mr. Rives, Assist. Sec. of State, to Mr. Shipman, Feb. 2, 1888, 167 MS.
This letter related to the case of Danford Knowlton & Co. v. Spain, which
"While the decision of the arbitrator has been noted with much regret, as a different decision was hoped for, yet this Government is bound by the usage in such cases to abide by the decision as made, inasmuch as it stipulated in the agreement for arbitration that any award made by the arbitrator should be final and conclusive. The award, therefore, must be deemed as a final disposition of the case."
Mr. Day, Assist. Sec. of State, to Mr. Oberlander, January 7, 1898, 224
For the award in the Oberlander-Messenger case, above referred to, see
The claim of Pedro D. Buzzi against Spain, which was dismissed by the commission under the agreement of 1871, was, after the conclusion of the labors of the commission, presented to the Spanish Government, which declined to entertain it, on the ground that it had been definitely disposed of under Article VI. of the agreement, which provided: "The two Governments will accept the awards made in the several cases submitted to the said arbitration as final and conclusive and will give full effect to the same and as soon as possible." On May 15, 1896, Mr. Buzzi again brought his claim to the attention of the Department of State. Mr. Olney, on the 15th of the following month, held that it must, in conformity with Article VI., be regarded as "finally adjudicated and disposed of." This conclusion was subsequently reaffirmed by Mr. Hay.
Mr. Hay, Sec. of State, to Mr. Sparkman, June 6, 1899, 237 MS. Dom.
For the action of the commission in Buzzi's case, see Moore, Int. Arbitra-
A claim was made, before the mixed commission under the convention between the United States and Mexico, of July 4, 1868, by the Bishop of Monterey and the Archbishop of San Francisco against the Mexican Government for arrears of unpaid interest on what was known as the "Pious Fund," which represented the proceeds of donations made to Jesuit fathers in the Californias for the conversion of the heathen in those provinces. On the expulsion of the Jesuits from Mexico in 1768, the administration of the fund was undertaken by