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U. S. Supreme Court.

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MAR 17 1923



“ Printed for the Author, Washington, 1885."

Such is the title of a pamphlet which, as announced in the public press, the distinguished author has prepared for circulation in the Senate of the United States. The occasion for its publication is the pendency before that body of a convention between the United States and Mexico, providing for the retrial of two claims on which awards' were rendered by a late commission, and which awards the Mexican government alleges were obtained through fraud and perjury. The writer divests himself of the character of a judicial advocate, in which he has attained such deserved eminence, and, making himself the champion of international arbitration, for which he manifests great devotion, he presents, from the high plane of public policy and peace among nations, a cogent appeal to the Senate to maintain in its integrity the binding character of international adjudications which have given our country such“ an honorable rank among the nations of the earth.” A subject of this importance, discussed under such circumstances, cannot fail to attract the attention of the high body to which it is presented, and secure a careful consideration of the author's views.

Mr. Curtis expresses great alarm lest the whole system of international arbitration may be overthrown by the ratification of the convention mentioned, and thus a matter of “ridiculous insignificance”.may“ bring about the hazard of a

great public mischief.” It is to avoid this serious evil to the nations of the earth, that he enters upon a review of the diplomatic history of the United States, to show, first, that it has been the common practice of our Government to insert in its treaties a clause stipulating and providing for the final and conclusive character of the awards that were to be made; and, second, that all branches of the Government, executive, judicial and legislative, during a period of ninety years since the first claims commission was created by treaty, had recognized and enforced, with steadiness and fullness, their final and conclusive character. This he repeats and emphasizes by various. forms of expression throughout his pamphlet. He avers that there is no formula in our diplomatic records of a more fixed character;” that these commissions have been resorted to in order to effect something “ that was never afterwards to be called in question;" that they are “ tribunals of the first and last resort;” that to disturb the binding character and finality of an international award was contrary to “all the traditions of our diplomacy;" and, finally, that “this is the first time in our diplomatic history that an attempt has been made to overthrow the conclusive character of adjudications made under a treaty which stipulated that both the sovereign parties would abide by the decision."

If these declarations are confirmed by our diplomatic and domestic history, as the author so stoutly affirms, it must be confessed that he has laid a solid foundation for the appeal which he makes "to the good sense and firmness of the American Senate to adhere to the principles laid down

rather than to the unwise and ill-considered experiment" of the pending treaty. In turning aside, for the moment, from his life study and practice of domestic jurisprudence, and in giving assurance that there is nothing technical in the rules of international law, he has emboldened me to attempt a somewhat more critical examination than he appears to have given of the diplomatic and domestic precedents which interpret and fix the extent of the “conclusive character of adjudications made under a treaty."

In the first place, however, I desire to call attention to a material misconception into which Mr. Curtis appears to have fallen, respecting the attitude of the Mexican government on this subject. That government has never questioned the final and binding effect upon itself of the awards of the Commission organized under the treaty of 1868, nor has it done, or omitted to do, a single act which could, in the slightest degree, expose it to the charge of bad faith, or even of hesitation in carrying out the stipulations of the treaty. Its attitude was explicitly stated by its diplomatic representative in Washington immediately after the dissolution of the Commission in 1876. In bringing to the attention of Secretary Fish the action of the Mexican counsel before the Commission, Sr. Avila, respecting the newly discovered evidence of fraud in the Weil and La Abra cases, Minister Mariscal used this language:

“ It is not my intention, nor the intention of Sr. Avila, to open any question whatever, nor to put in doubt the final and conclusive character of the abovementioned awards. As a proof of this, Sr. Avila begins his first statement by say. ing : 'that the Mexican government, in fulfillment of Art. 5 of the convention of July 8, 1868, considers the result of the proceedings of this Commission as a full, perfect and final settlement of all claims referred to said Commission. I beg leave to call your attention to the fact that Sr. Avila only expresses afterwards the possibility that the Mexican government may, at some future time, have recourse to some proper authority of the United States to prove that the two claims he mentions were based on perjury, with a view that the sentiments of equity of the Government of the United States, once convinced that frauds have actually been committed, will then prevent the definite triumph of these frauds. It seems clear that if sud an appeal should be made, it will be resorted to as a means of discarding the obligation which binds Mexico, and that, should it prove unsuccessful, the Mexican government will recognize its obligation as before.” (H. Ex. Doc., 103, 48th Cong., Ist sess., p. 149.)

This declaration has, in substance, been repeated at various times by the representatives of Mexico, and that government has promptly paid to the United States (sometimes under the most embarrassing circumstances) the annual installments stipulated in the treaty. So faithfully has it kept its plighted faith, that it has repeatedly awakened the admiration and called forth the commendation of our Government. Mr. Evarts, for in

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