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the Spanish Government. The Mexican Government, on establishing its independence, succeeded to the trust, and by a law of September 19, 1836, its management was confided to the Catholic bishop of the two Californias. This law was abrogated by a decree of President Santa Anna, of February 8, 1842, and the administration of the fund again devolved on the state. By a further decree of October 24, in the same year, Santa Anna directed the property belonging to the fund to be sold, but recognized an obligation on the part of the Government to pay interest on the capital thereafter. In 1845 the Mexican Congress restored to the bishop of the Californias the administration of the properties yet remaining unsold, but the interest on that part of the fund derived from property which had already been disposed of was not paid by the Mexican Government. It was for the amount of this interest that the claim was made before the commission. On November 11, 1875, the umpire, Sir Edward Thornton, awarded the claimants the sum of $904,070.91, which represented an aggregate of $43,080.99 for the term of twenty-one years. The Mexican agent before the commission presented a statement to be entered in the records to the effect that, although the award referred only to the accrued interest, the claim should be considered as "finally settled in toto," and that any claim in regard to either principal or interest should thereafter be forever inadmissible. This statement was communicated to Mr. Fish, as Secretary of State, who declined to acquiesce in it or to enter into any discussion of the subject. A claim was afterwards made for the payment to the Archbishop of San Francisco and the Bishop of Monterey of interest accruing after the award of Sir Edward Thornton. It was contended on the part of the Mexican Government that the proceedings under the commission barred the presentation of such a claim. The United States, on the other hand, took the ground that the award of Sir Edward Thornton, instead of barring the further claim, constituted in effect a res judicata, in the sense that it fixed Mexico's liability for the future payment of interest on the fund. This difference was referred, under a protocol concluded May 22, 1902, to a tribunal of arbitration selected from the permanent court at The Hague. This tribunal held that Mexico should pay the overdue installments, and should in future in perpetuity pay the interest due in each year, all in money having legal currency in Mexico.
Int. Arbitrations, II. 1348-1352; For. Rel. 1902, Appendix II. 17-18.
(2) AWARD OUTSIDE LIMITS OF SUBMISSION NOT BINDING.
Under the convention between the United States and Great Britain of September 29, 1827, the King of the Netherlands was chosen as
arbitrator to determine the true divisional line between the northeastern part of the United States and the adjacent British possessions under the treaty of peace of 1782-83. The King of the Netherlands, in his award given at The Hague January 10, 1831, held that neither the line claimed by the United States nor that claimed by Great Britain so nearly answered the requirements of the treaty that a preference could be given to the one over the other; and abandoning, therefore, as impracticable, the attempt to draw the line described in the treaty, he recommended a line of convenience. When the award was delivered the agent of the United States entered a respectful protest against it as constituting a departure from the powers delegated to the arbitrator by the high contracting parties. The British Government also recognized the fact that the award was recommendatory rather than decisive, and, while signifying its readiness to acquiesce in the recommendation, authorized its minister at Washington privately to intimate that it would not consider the formal acceptance of the award by the two Governments as precluding modifications of the line by mutual exchange and concession. President Jackson was inclined to accept the award, and, it seems, afterwards regretted that he had not done so. But, as it was unsatisfactory both to Maine and to Massachusetts, he submitted the question of acceptance or rejection to the Senate, which, by a vote of 35 to 8, resolved that the award was not obligatory, and advised the President to open a new negotiation with Great Britain for the ascertainment of the line. The British Government promised to enter upon negotiations in a friendly spirit, and it was agreed that both sides should meanwhile refrain from exercising jurisdiction beyond the territories which they actually occupied.
Moore, Int. Arbitrations, I. 137-138, citing S. Ex. Doc. 3, 22 Cong. 1 sess.; 22 Br. & For. State Papers, 772, 776, 783, 788, 795, 850, 871; Curtis, Life of Webster, II. 139.
The boundary was settled by the Webster-Ashburton treaty of Aug. 9, 1842. (Webster's Works, V. 84; Benton's Thirty Years' View, II. 438.)
By a protocol concluded May 24, 1884, the United States and Hayti agreed to submit to arbitration the claim of Antonio Pelletier, as a citizen of the United States and master of the bark William, growing out of the seizure of the vessel and the imprisonment of her master and crew at Fort Liberté, in Hayti, in 1861, on a charge of piracy and attempt at slave trading. The protocol required that the case should be decided “according to the rules of international law existing at the time of the transactions complained of." An award was rendered in favor of the claimant, but it appeared, by the proceedings in the arbitration, that the arbitrator, while declaring it to be "beyond doubt" that "had the bark been captured and
brought into an American port, when she was seized at Fort Liberté, she would have been condemned by the United States courts as an intended slaver," took the ground (1) that, as a claim had been made, he was restricted to the decision of a pure question of law, and (2) that under the stipulation above quoted the sole question to be decided was whether the claimant had been guilty of piracy by law of nations, as distinguished from piracy by municipal statute, so that an award of damages must be made in case it should be found that piracy by law of nations was not committed.
The Department of State, reporting against the enforcement of the award, held that the arbitrator had misconstrued his powers; that the submission of the case to arbitration implied, in the absence of anything to the contrary in the protocol, that the United States did not desire that its previous action on ex parte information should be regarded as a prejudgment of the merits of the claim, and that the arbitrator was not precluded, by the rules of international law as they existed in 1861, from inquiring whether the claimant was guilty of piracy by Haytian law, since it was then, as it had continued to be, a rule of international law that offences committed within the territorial jurisdiction of a nation may be tried and punished there, according to the definitions and penalties of its municipal law.
Report of Mr. 'Bayard, Sec. of State, to the President, Jan. 20, 1887, For.
By Article V. of the modus vivendi between the United States and Great Britain of April 18, 1892, which was entered into for the purpose of suspending the taking of fur seals in certain waters of Bering Sea and limiting the killing on the Pribiloff Islands, during the arbitration under the treaty of February 29, 1892, it was provided, among other things, that "if the result of the arbitration shall be to deny the right of British sealers to take seals within the said waters, then compensation shall be made by Great Britain to the United States (for itself, its citizens and lessees) for this agreemnt to limit the island catch to 7,500 a season, upon the basis of the difference between this number and such larger catch as in the opinion of the arbitrators might have been taken without an undue diminution of the seal herds." The United States, in its case before the tribunal of arbitration, presented a claim for the damages which the Government and its lessee had sustained by reason of the limitation; but this claim was not presented as a claim which the lessee could maintain against the United States under the lease; and, in the argument for the United States, counsel declared, upon the strength of the proofs in the counter case of the United States, that that Government could not have allowed its lessees to have much, if any, exceeded the
number of skins allowed by the modus vivendi of 1892 without an undue diminution of the seal herd." Later, counsel announced that the United States would not ask the tribunal for any finding of damages under Article V. Held, in an action against the United States by its lessees, in which the latter claimed damages for the limitation of the island catch to 7,500, that the provisions of Article V. and the action taken thereunder before the tribunal of arbitration, could not be considered as an estoppel, or an admission against interest, on the part of the United States, so as to preclude its denial of the validity of the claim of the lessees for damages. "There was," said the court, "no element of estoppel about the transaction, and counsel had no authority to bind the Government for any other purpose than the pending cause.”
North American Commercial Company r. United States (1898), 171 U. S. 110, 131.
An act of Congress referring a claim against the Government to an officer of one of the Executive Departments to examine and adjust, does not, even though the claimant and Government act under the statute and the account is examined and adjusted, make the case one of arbitrament and award, in the technical sense of these words, so as to bind either party as by submission to award. Hence a subsequent act repealing the one making the reference (the claim not having been yet paid) impairs no right, and is valid.
Gordon v. United States, 7 Wall. 188.
(3) DECISIONS IMPEACHABLE FOR FRAUD.
In only one case have arbitral proceedings to which the United States was a party been impeached for fraud on the part of the tribunal. This case was that of the mixed commission under the convention between the United States and Venezuela of April 25, 1866, for the settlement of claims against the latter Government. It was alleged that before the commission met a conspiracy was entered into by the United States commissioner, the United States minister at Caracas, and the latter's brother-in-law, who was the moving spirit in the matter, to defraud claimants by exacting of them a large proportion of their awards in the form of attorney's fees; that, in pursuance of this conspiracy, assignments were obtained by claimants of large interests in their claims; that the installation of the umpire of the commission was brought about in an irregular manner, and that certificates of award were made in small amounts and payable to bearer, so as to pass without indorsement, in order that the proceeds might be readily divided. By an act of Congress of February
25, 1873, afterwards known as the "finality act," it was declared that the proceedings of the commission were to be recognized as final and conclusive, but eventually, after a long discussion and much investigation, a joint resolution was adopted by Congress and was approved by the President March 3, 1883, by which the President was requested, in view of the charges which had been made against the commission, to open diplomatic correspondence with the Government of Venezuela, with a view to a rehearing of the claims passed upon under the convention of 1866. A convention was concluded December 5, 1885, for this purpose, and was duly carried into effect. It was held by the new commission that the claims stood before it with respect to hearing and determination substantially as they stood before the previous commission, with the difference that under the convention of 1885 additional evidence was admissible; that the proceedings under that convention constituted a rehearing of the claims and not a mere review of the adjudications of the previous commission; and that the awards of the old commission were not to be considered as continuing to have "force and legal effect."
Moore, Int. Arbitrations, II. 1659-1692, citing S. Ex. Doc. 14, 40 Cong. 3 sess.; S. Ex. Doc. 5, 41 Cong. 1 sess.; H. Ex. Doc. 176, 41 Cong. 2 sess.; S. Misc. Doc. 102, 41 Cong. 2 sess.; H. Rept. 29, 42 Cong. 2 sess.; H. Misc. Doc. 221, 42 Cong. 2 sess.; H. Rept. 4, 42 Cong. 3 sess.; H. Rept. 609, 43 Cong. 1 sess.; H. Rept. 787, 41 Cong. 1 sess.; S. Ex. Doc. 66, 44 Cong. 1 sess.; H. Ex. Doc. 30, 45 Cong. 2 sess.; H. Rept. 702, 45 Cong. 2 sess.; H. Misc. Docs. 11 and 30, 45 Cong. 2 sess.; S. Ex. Doc. 121, 46 Cong. 2 sess.; H. Rept. 2610, 48 Cong. 2 sess.; S. Ex. Doc. 52, 48 Cong. 2 sess.
For the act of February 25, 1873, see 17 Stat. 477; for the joint resolution of March 3, 1883, see 22 Stat. 643.
By the umpire of the mixed commission under the convention between the United States and Mexico of July 4, 1868, an award was made in favor of Benjamin Weil, a naturalized citizen of the United States of French nativity, for the sum of $479,975.95, American gold, as damages for the seizure of cotton by Mexican forces. An award was also made by the umpire in favor of La Abra Silver Mining Company, an American concern, for $672,070.99, American gold, as damages for being dispossessed of a mine in Mexico and for the seizure of ores by the Mexican authorities. The good faith of these claims was impeached before the commission by the agent of Mexico, who, after the awards were rendered, presented to the umpire a motion for a rehearing, accompanied with some new evidence and a reexamination of the old. The convention contained the usual clause to the effect that the contracting parties would consider the result of the proceedings of the commission as "a full, perfect and final" settlement. The umpire refused the motion for a rehearing, on the ground (1) that he had no right to consider any evidence which had