Moore, Int. Arbitrations, II. 1339-1345, citing S. Ex. Doc. 140, 49 Cong. 1 sess.; H. Ex. Doc. 274, 49 Cong. 1 sess.; S. Rept. 1316, 49 Cong. 1 sess. S. Rept. 1454, 49 Cong. 1 sess.; H. Rept. 3474, 49 Cong. 1 sess.; S. Ex. Doc. 109, 50 Cong. 1 sess. When Mr. Blaine again became Secretary of State, in March, 1889, he adhered to the course of his two immediate predecessors in refusing to distribute the moneys on hand applicable to the two awards in question. In consequence, Sylvanus C. Boynton, as assignee of a part of the Weil claim, on October 23, 1889, filed a petition in the supreme court of the District of Columbia to compel Mr. Blaine, as Secretary of State, to make a distribution. The case eventually came before the Supreme Court of the United States, which, on March 23, 1891, affirmed the decree of the court below dismissing the petition. The court held that the inaction of Congress was not equivalent to a direction by Congress that the money should be paid out, that the political department had not parted with its power over the matter, and that the intervention of the judicial department could not be invoked. Boynton . Blaine, 139 U. S. 306. August 30, 1888, the Senate adopted a resolution authorizing the Committee on Foreign Relations, or a subcommittee thereof, to conduct a special investigation of La Abra claim. The result of this investigation was embodied in a report by Mr. Dolph on March 1, 1889, which declared that the whole claim was fraudulent, that the power of Congress to reopen the award was unquestionable, and that the Attorney-General should be authorized to proceed against the company in the Court of Claims in order to determine whether the award was obtained in whole or in part by fraud. By an act of Congress of December 28, 1892, 27 Stat., 409, 410, both cases were at length referred to the Court of Claims to determine whether the charges of fraud were well founded. The Court of Claims found that the award in La Abra case was obtained" by fraud effectuated by means of false swearing, and other false and fraudulent practices," and adjudged that the company and its agents be forever debarred from receiving the money. The case was carried on appeal to the Supreme Court, which, in affirming the decision of the Court of Claims, held that the person who invoked the intervention of his Government in order to collect a claim against another Government impliedly engaged to act in good faith; that, as between him and his Government, the honesty of the claim was always open to inquiry by judicial or other means; that, if his claim proved to be fraudulent or fictitious, it was the duty of his Government to withhold from him any money paid on account of it; that the genuineness of the newly discovered evi dence, which Mexico was not fairly chargeable with negligence in not having discovered sooner, was fully established; and that, as the whole story of losses inflicted by the Mexican Government was upon the evidence "improbable and unfounded," the decree of the Court of Claims must be affirmed. La Abra Silver Mining Co. v. United States (1899), 175 U. S., 423, citing For the judgment of the Court of Claims, see United States v. La Abra The investigation of the Court of Claims in the case of Weil resulted in a judgment similar to that in the case of La Abra Company. United States v. Alice Weil et al. (1900), 35 Ct. Cl. 42. This judgment became final by the failure of the defendant to perfect an appeal. (S. Rept. 28, 57 Cong. 1 sess.) In 1900 the United States returned to Mexico the undistributed balance of the moneys paid by the latter on the two awards in question. Mr. Hay, Sec. of State, to Mr. Azpiroz, Mexican min., No. 78, March 28, 1900, For. Rel. 1900, 781; same to same, No. 130, Nov. 10, 1900, id. 783. See S. Docs. 249 and 271, 56 Cong. 1 sess.; H. Doc. 596, 56 Cong. 1 sess. Not only was the undistributed balance of the moneys paid by Mexico refunded, but Congress appropriated the sum of $412,572.70 for the repayment to that country even of the instalments which were. distributed in both cases by the United States. Act of February 14, 1902, 32 Stat. I. 5. See, as recommending the refunding to Mexico of the distributed installments, report of Mr. Cullom, Committee on Foreign Relations, Jan. 7, 1902, S. Rept. 28, 57 Cong. 1 sess.; Mr. Cousins, Committee on Foreign Affairs, Feb. 5, 1902, H. Rept. 420, 57 Cong. 1 sess. June 13, 1885, an award was made under the protocol of May 24, 1884, in favor of Antonio Pelletier, a citizen of the United States, in respect of a claim against the Republic of Hayti, growing out of the seizure of the barque William in 1861 and the imprisonment of her master and crew on a charge of piracy and attempt at slave trading. The Haytian minister at Washington afterwards filed in the Department of State a formal protest, in which he maintained that the award was induced by a clear mistake by the arbitrator as to his. jurisdiction under the protocol. The Department decided that the award should not be enforced, on the ground (1) that the arbitrator, as appeared by the text of his decision, was induced by an erroneous construction of his powers under the protocol to make an award in favor of the claimant, although he considered the claim to have been originally bad; (2) that it was the duty of the Executive to refuse to enforce an unconscionable award; (3) that, assuming the claimant's naturalization to be proved, his right, being a tort feasor, to claim compensation for the consequences of his tort must be denied; (4) that, upon the general question of turpitude, the claim was one that could not be pressed by the United States, "either as a matter of honor or as a matter of law;" (5) that the principle that a sovereign could not honorably press an unjust award, even although it was made by a tribunal invested by law or treaty with ample judicial powers, applied with still greater force to the award of an arbitrator whose acts in administering oaths to witnesses, determining what questions were to be put, and issuing commissions to take testimony must, if sanctioned only by the Executive, be regarded as ultra vires. Report of Mr. Bayard, Sec. of State, to the President, Jan. 20, 1897, Moore, June 13, 1885, an award was rendered under the protocol of May 24, 1884, in favor of A. H. Lazare, a citizen of the United States, in respect of a claim against the Government of Hayti, growing out of a contract for the establishment of a national bank at Port au Prince. Counsel for Hayti endeavored to obtain a rehearing on the ground of alleged newly discovered evidence, but the arbitrator declined to .grant their application for the reason that, in his judgment, he was functus officio. Counsel then appealed to the Department of State and asked to have the award set aside. The Department held that the award should not be enforced, basing its decision (1) on certain. papers in the Department of State which were not shown to have been laid before the arbitrator, (2) on irregularities in the arbitrator's proceedings, (3) on errors in the award, (4) on alleged newly discovered evidence, (5) on an oral statement of the person who had acted as arbitrator that this evidence would have affected his judgment, and (6) on the conclusion that the claim as it stood could not be honorably pressed. Report of Mr. Bayard, Sec. of State, to the President, Jan. 20, 1887, The duty of the executive to refuse to enforce an award which turns out to have been inequitable or unconscionable, has been maintained in repeated rulings of this Department, and is anctioned by the Supreme Court of the United States. The awards under the treaty with Mexico of 1848 were set aside by act of Congress in the Atocha case, and by the courts in the Gardiner case (13 Stat. 595; 16 Stat. 633). Two of the awards under the Chinese claims treaty of 1858 were reopened in behalf of rejected claimants (15 Stat. 440; 20 Stat. 171). The Secretary of State, in the case of the Caroline, returned to Brazil, against the claimant's protest, money to be paid him under a diplomatic settlement. (See Senate Rep. No. 1376, Fortieth Congress, first session.) "The precedents in this Department therefore fully sustain the principle stated by Chief Justice Waite, that 66.6 As between the United States and the claimants, the honesty of the claim is always open to inquiry for the purpose of fair dealing with the government against which, through the United States, a claim has been made.' (Frelinghuysen . Key, 110 U. S. 63.)” Report of Mr. Bayard, Sec. of State, to the President, in the case of See, also, Moore, Int. Arbitrations, II. 1794-1800. As to the case of the Caroline against Brazil, see Moore, Int. Arbitrations, 5. GENERAL ARBITRATION. (1) PROJECT OF INTERNATIONAL AMERICAN CONFERENCE, 1890. § 1084. November 29, 1881, Mr. Blaine, as Secretary of State of the United States, extended, in the name of the President, an invitation to all the independent countries of North and South America to participate in a general congress to be held in Washington on the twenty-fourth of November, 1882, "for the purpose of considering and discussing methods of preventing war between the nations of America." Mr. Blaine added that the President desired that the attention of the congress should be "strictly confined to this one great object." On the 'ninth of August, 1882, Mr. Frelinghuysen, Mr. Blaine's successor, gave notice that the President was constrained to postpone the projected meeting till some future day. As one of the grounds for this action he stated that the peaceful condition of the South American republics, which was contemplated as essential to a profitable and harmonious assembling of the congress, did not exist. The original proposal, however, was never entirely relinquished; and on May 28, 1888, the President gave his approval to the act under which was convoked the International American Conference of 1889-1890. this conference one of the results was the celebrated plan of arbitration adopted April 18, 1890. By this plan it was declared that arbitration, as a means of settling disputes between American republics, was adopted" as a principle of American international law;" that arbitration should be obligatory in all controversies concerning dip Of lomatic and consular privileges, boundaries, territories, indemnities, the right of navigation and the validity, construction, and enforcement of treaties; and that it should be equally obligatory in all other cases, whatever might be their origin, nature, or object, with the sole exception of those which, in the judgment of one of the nations. involved in the controversy, might imperil its independence; but that, even in this case, while arbitration for that nation should be optional, it should be "obligatory upon the adversary power." The conference also adopted a resolution recommending arbitration to the nations of Europe. Moore, Int. Arbitrations, II. 2113-2117. During the nineteenth century there were eighty-four international arbitrations to which an American nation was a party. In forty, or nearly one-half, of these the other party was a European power, the arbitrations between American nations being forty-four. To about two-thirds of these the United States was a party, the number of arbitrations between other American powers being fourteen. Of this number there were ten that related to questions of boundary. After the adjournment of the International American Conference the plan of a treaty of arbitration was signed by the following nations: Brazil, Bolivia, Ecuador, Guatemala, Hayti, Honduras, Nicaragua, Salvador, the United States, Uruguay, and Venezuela. It was provided by Art. XIX. that the treaty should be ratified by the nations approving it, according to their respective constitutional methods, and that the ratifications should be exchanged at Washington on or before May 1, 1891. No ratifications were filed on or before that day, and on October 22, 1891, the United States sent out to the eleven original signatories a proposal to extend the Favorable responses were received from Bolivia, Ecuador, Guatemala, Honduras, Nicaragua, Salvador, and Venezuela; but it was stated in December, 1895, that "as the original treaty was rejected by some important governments of South America," and its revival had only been advocated by a few," the negotiations had "not advanced." Mr. Adee, Act. Sec. of State, to Mr. Abbott, min. to Columbia, Oct. 24, 1890, For. Rel. 1890, 269; Mr. Wharton, Act. Sec. of State, to Mr. Conger, No. 89, Oct. 22, 1891, MS. Inst. Brazil, XVII. 544; Mr. Wharton, Act. Sec. of State, to Mr. Trueblood, Feb. 27, 1893, 190 MS. Dom. Let. 456; Mr. Olney, Sec. of State, to Mr. Paine, Dec. 9, 1895, 206 MS. Dom. Let. 371. **It is, in my judgment, incumbent upon the United States to conserve the influential initiative it has taken in this measure by ratifying the instrument and by advocating the proposed extension of the time for exchange." (President Harrison, annual message, Dec. 9, 1891, For. Rel. 1891, XII.) H. Doc. 551-vol 7--6 |