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 v. 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. § 1083. 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 not been presented to the commissioners; (2) that a reexamination of that evidence would not be likely to alter his opinion; (3) that, as his decisions were known to be final and without appeal, they had probably already been made the basis of transactions which a reopening of the case by him might seriously prejudice; and (4) that, in his opinion, the provisions of the convention did not permit him to grant a rehearing. With respect, however, to the charges of fraud and perjury that were made by the Mexican agent, he expressed a doubt whether either Government would insist on the payment of claims shown to be founded on such evidence, and declared that if perjury should be proved no one would rejoice more than himself that his decision should be reversed and that justice should be done. By an act of June 18, 1878, 20 Stat. 144, 145, sec. 5, Congress, in providing for the distribution of the moneys paid by Mexico on the awards of the commission, requested the President to investigate the charges of fraud that had been made in the two cases above mentioned, and, if he should be of opinion that either case should be reopened and retried, to withhold payments till a retrial should be had in such manner as the two Governments should decide or until Congress should otherwise direct. On August 13, 1879, Mr. Evarts, as Secretary of State, reported that in his opinion a further investigation of both cases should be made. On June 9, 1880, a bill to refer them to the Court of Claims was reported favorably by the House Committee on Foreign Affairs; but it was reported unfavorably by the Senate Committee on the Judiciary on the next day, on the ground that, if the awards were to be reopened, it should be done "by a new convention." On the adjournment of Congress, the Mexican Government attempted to take the matter into the courts, but, on objection by the United States, this proceeding was abandoned. Up to this time three instalments had been distributed on La Abra award, but none on the Weil. On September 3, 1879, Mr. Evarts, acting upon the assumption that the Mexican Government impeached only the amount of the award in La Abra case, advised the President that the three instalments then received on that claim might properly be distributed, reserving the question as to later instalments. This course was taken, but the money received in the Weil case was withheld. On January 31, 1880, another instalment was paid by Mexico. This instalment and the four instalments received in the Weil case were withheld till August 14, 1880, when the President, in the absence of the Secretary of State, directed the Acting Secretary of State to distribute them. The fifth instalment on La Abra claim was distributed by Mr. Evarts on March 5, 1881, and the fifth on the Weil claim by Mr. Blaine, then Secretary of State, on the 8th of the same month. The total amount of the distributions on La Abra claim was then $240,683.06; on the Weil claim, $171,889.64. No further distribu tions were made; but the Mexican Government, in fulfilment of its obligations under the treaty, continued to pay the instalments to the United States as they fell due. Moore, Int. Arbitrations, II. 1324-1337, citing II. Ex. Doc. 103, 48 Cong. July 13, 1882, a convention was concluded for a rehearing of both of La Abra and the Weil case. While this convention was pending in the Senate, John J. Key, one of Weil's original attorneys, applied, as assignee of a part of the award, to the supreme court of the District of Columbia for a writ of mandamus to compel Mr. Frelinghuysen, as Secretary of State, to distribute the installments then in his hands. In due course the case came before the Supreme Court of the United States, by which it was, on January 7, 1884, dismissed. Chief Justice Waite, in delivering the opinion of the court, said: "There is no doubt that the provisions of the convention [of 1868] as to the conclusiveness of the awards are as strong as language can make them... But this is to be construed as language used in a compact of two nations . . . The citizens of the United States having claims against Mexico were not parties to this convention As to the right of the United States to treat with Mexico for a retrial, we entertain no doubt. Each Government, when it entered into the compact under which the awards were made, relied on the honor and good faith of the other for protection as far as possible against frauds and impositions by the individual claimants. It was for this reason that all claims were excluded from the consideration of the commission except such as should be referred by the several Governments, and no evidence in support of or against a claim was to be submitted except through or by the Governments. The presentation by a citizen of a fraudulent claim or false testimony for reference to the commission was an imposition on his own Government, and if that Government afterwards discovered that it had in this way been made an instrument of wrong towards a friendly power, it would be not only its right, but its duty to repudiate the act and make reparation as far as possible for the consequences of its neglect, if any there had been. International arbitration must always proceed on the highest principles of national honor and integrity. Claims presented and evidence submitted to such a tribunal must necsarily bear the impress of the entire good faith of the government from which they come, and it is not to be presumed that any government will for a moment allow itself knowingly to be made the instrument of wrong in any such proceeding. No technical rules of . pleading as applied in municipal courts ought ever be allowed to stand in the way of the national power to do what is right under all the circumstances The United States, when they assumed the responsibility of presenting the claims of their citizens to Mexico for payment, entered into no contract obligations with the claimants to assume their frauds As between the United States and the claimants, the honesty of the claims is always open to inquiry for the purposes of fair dealing with the government against which, through the United States, a claim has been made." Frelinghuysen v. Key, 110 U. S. 63. The case of La Abra Silver Mining Co. v. Frelinghuysen, 110 U. S. 63, See Rustomjee v. The Queen, L. R. 1 Q. B. D. (1876), 487; L. R. 2 Q. See, in relation to the Weil and La Abra cases, a pamphlet by Mr. Geo. See Moore, Int. Arbitrations, II. 1329-1339. April 20, 1886, the convention negotiated by Mr. Frelinghuysen, after pending in the Senate nearly four years, was rejected. On May 11, 1886, the President again brought the claims to the attention of Congress, and on the 15th of June communicated to the House of Representatives, in response to a resolution of that body, correspondence with the Mexican Government since February, 1884. On the 11th of June Mr. Morgan, from the Committee on Foreign Relations, submitted to the Senate a report, accompanied with a bill to provide for à judicial investigation of the charges of fraud. This proposal was discussed in Congress, and further committee reports were made on the one side and the other; and the matter thus stood, when on December 21, 1887, the Senate adopted a resolution calling for correspondence with the Mexican Government since January, 1886. This request was answered by the President in a message to the Senate of March 5, 1888, which was accompanied with a report by Mr. Bayard, as Secretary of State. In this report Mr. Bayard, besides maintaining that it was the duty of the Government to refuse to enforce an inequitable and unconscionable award, also disclosed the fact that he had sought to obtain a judicial investigation of the two awards, without awaiting further Congressional action, under section 12 of the act of March 3, 1887, but that he had been unable to obtain the concurrence of the claimants in that course. In conclusion, he suggested that provision should be made for the reference of the claims to the Court of Claims or to such other court as might be deemed proper, in order that a competent investigation of the charges of fraud might be made. |