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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 H. 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 necessarily 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 a 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.
Moore, Int. Arbitrations, II. 1339-1345, citing S. Ex. Doc. 140, 49 Cong. 1 sess.; II. 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, ast 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 v. 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 r. 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 $112,572.70 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