to the law adverted to as a bar to them can be viewed in no other light than as an ungenerous requital and in fact be construed as a notice to our representative that he had arrived too late. An acquiescence by us in the position assumed, would subject us to the imputation of sacrificing the rights of our injured citizens to a mistaken forbearance towards their aggressors. If, therefore, the law referred to should again be mentioned as an impediment to the adjustment of the claims, you will in a firm, decided yet respectful manner declare that it can never be acknowledged as such by this Government." Mr. Clayton, Sec. of State, to Mr. Van Alen, min. to Ecuador, No. 1, Even admitting that a government may fix a limitation of time for the presentation of international claims, this would afford no justification for fixing a time unreasonably brief, and the tacit consent of a claimant government to such a measure can not be deduced from the fact that it did not expressly object to it. Mr. Hay, Sec. of State, to Mr. Dudley, min. to Peru, No. 190, March 28, 1899, MS. Inst. Peru, XVIII. 159. There is no statute of limitation as to international claims, nor is there any presumption of payment or settlement from the lapse of twenty years. Governments are presumed to be always ready to do justice, and whether a claim be a day or a century old, so that it is well founded, every principle of natural equity, of sound morals, requires it to be paid. Mr. Crallé, Act. Sec. of State, to Mr. Crump, Oct. 30, 1844, MS. Inst. Chile, "It was the wish of this Government that the private property of both Mexicans and foreigners in Mexico should be unharmed by the forces of the United States in that country or should not be taken for their use without a just compensation. This intention was exemplified in numerous instances of redress when injuries were committed by volunteers and others. Probably it would also have been fulfilled in the case which Baron Gerolt has been instructed to present, if the complainant had not neglected to appear at the time and place appointed for the investigation. This Government has a right to consider this as a waiver of the cause of complaint, which could scarcely at this late period be examined with any prospect of reaching the whole truth in regard to it." Mr. Marcy, Sec. of State, to Baron Gerolt, Prussian min., June 15, 1854, See Mr. Blaine, Sec. of State, to Mr. Amadore, March 10, 1881, 136 MS. Dom. Let. 472. "I recommend that some suitable provision be made, by the creation of a special court or by conferring the necessary jurisdiction upon some appropriate tribunal, for the consideration and determination of the claims of aliens against the Government of the United States which have arisen within some reasonable limitation of time, or which may hereafter arise, excluding all claims barred by treaty provisions or otherwise. It has been found impossible to give proper consideration to these claims by the Executive Departments of the Government. Such a tribunal would afford an opportunity to aliens other than British subjects to present their claims on account of acts committed against their persons or property during the rebellion, as also to those subjects of Great Britain whose claims, having arisen subsequent to the 9th day of April, 1865, could not be presented to the late commission organized pursuant to the provisions of the Treaty of Washington." President Grant, annual message, Dec. 7, 1875, For. Rel. 1875, I. XIII. "When claimants on whom ostensibly rests the charge of aiding an insurrection against the United States decline to press their claim before a tribunal before which, when the evidence was on all sides attainable, the charge could have been judicially disposed of, and then wait twenty years before bringing the claim before this Department, which, by reason of its organization, has no means of taking testimony as to disputed facts, and which, even if it could, would at this late date find these facts obscured by the lapse of time, then such claimants can not, under that common system of ethical jurisprudence which is acknowledged by Spain as well as by ourselves, be admitted to a hearing unless they produce a strong array of testimony to disprove their culpability, but also give satisfactory explanation for their delay in presenting their case. The same presumption may be almost as strongly drawn from the delay in making application to this Department for redress. Time,' said a great modern jurist, following therein a still greater ancient moralist, while he carries in one hand a scythe by which he mows down vouchers, by which unjust claims can be disproved, carries in the other hand an hour-glass, which determines the period after which, for the sake of peace, and in conformity with sound political philosophy, no claims whatever are permitted to be pressed.' "The rule is sound in morals as well as in law, and applies with peculiar force to claims infected with taints which the claimants refuse to submit to judicial examination when the facts are attainable." Mr. Bayard, Sec. of State, to Mr. Muruaga, Span. min., Dec, 3, 1886, For. "When by treaty or diplomatic arrangement a tribunal is constituted for the settlement of international claims, a party who neglects to present his case to the tribunal, before which it is cognizable, and delays subsequent action until the evidence on both sides must necessarily have more or less passed out of reach, will be required to present, by affidavits, a very strong and plain case accounting for such delay and laches, in order to induce the Department to interpose." Mr. Bayard, Sec. of State, to Mr. Sutphen, Jan. 6, 1888, 166 MS. Dom. It may be observed that treaties or diplomatic arrangements by which Delay in the presentation of a claim to the Department of State till lapse of time and change of circumstances have rendered it impossible to establish all the facts in the case with the certainty that contemporaneous investigations alone can afford, is a good ground for refusing to present the claim to the foreign government against which it is asserted. Mr. Bayard, Sec. of State, to Messrs. Morris and Fillette, July 28, 1888, 169 MS. Dom. Let. 263. "While international proceedings for redress are not bound by the letter of specific statutes of limitations, they are subject to the same. presumptions, as to payment or abandonment, as those on which statutes of limitation are based. A government can not any more rightfully press against a foreign government a stale claim which the party holding declined to press when the evidence was fresh than it can permit such claims to be the subject of perpetual litigation among its own citizens. "It must be remembered that statutes of limitations are simply formal expressions of a great principle of peace which is at the foundation not only of our own common law, but of all other systems of civilized jurisprudence. It is good for society that there should come a period when litigation to assert alleged rights should cease; and this principle, which thus limits litigation when wrongs are old and evidence faded, is as essential to the administration of justice as is the principle that sustains litigation when wrongs are recent and evidence fresh. 'Rules for the application of such limitations,' said Mr. Justice Swayne in Wood v. Carpenter, 101 U. S., 139, are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They 6 promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extending to the limit prescribed, is itself a conclusive bar. The bane and antidote go to.gether.' "In the English common law, long before statutes of limitation took formal shape, this principle of peace was applied in the rulings that indebtedness, which has existed for so long a period as to enable its payment or its extinguishment to be logically inferred, is to be presumed to have been paid. What this period is varies, so it has always been held at common law, with extraneous conditions. In newly-settled communities, or in communities in which men come and go on comparatively brief business errands, the period in which a debt is presumed to be still alive is much shorter than it would be in a community of persons of continuous residence, of settled business habits, and with facilities which enable the vouchers of the past to be carefully guarded, and witnesses of past transactions to be, within the ordinary limits of life, appealed to. When the question is one of diplomatic negotiation, then the circumstances of the nations interested, as well as of individual claimants, is to be taken into consideration; the fact of intermediate war, for instance, when it does not extinguish a claim, operates to excuse delay in pressing it. But, in all cases, when the rule to be applied is not one of statute, but of common or public law, then the question of the presumption of the effect on indebtedness of lapse of time is one to be settled by taking into consideration not merely the general principle of peace above stated, but all the conditions which would divert the application of that principle to the particular case." Note of Dr. Francis Wharton, Wharton's Int. Law Digest, § 239 (Appendix), III. 972. "Great lapse of time is known to produce certain inevitable results, among which are the destruction or the obscuration of evidence, by which the equality of the parties is disturbed or destroyed, and, as a consequence, renders the accomplishment of exact or even approximate justice impossible. Time itself is an unwritten statute of repose. Courts of equity constantly act upon this principle, which belongs to no code or system of municipal judicature, but is as wide and universal in its operation as the range of human controversy. A stale claim does not become any the less so because it happens to be an international one, and this tribunal in dealing with it can not escape the obligation of an universally recognized principle, simply because there happens to be no code of positive rules by which its action is to be governed." Findlay, commissioner, delivering the opinion of the commission in the case of Ann Eulogia Garcia Cadiz v. Venezuela, No. 47, United States and Venezuelan Commission, convention of Dec. 5, 1885, Moore, Int. Arbitrations, IV. 4199, 4203. See, also, to the same effect, the able and exhaustive opinion of Little, commissioner, speaking for the same commission, in the case of John H. Williams v. Venezuela, No. 36, Moore, Int. Arbitrations, IV. 4181. 3. EFFECT OF WAR. § 1053. "It was, among other causes, for the aggressions upon our commerce under the orders in council, that the United States made war upon Great Britain; and, having negotiated a peace without stipulation for indemnity in that particular, her case is widely distinguishable from that of France. If we were now to prefer a claim against France for the many millions of which the citizens of the United States were despoiled by her previous to the year 1800, and for which no provision was made by the treaty of that year, there might be some analogy in the cases, and, consequently, more force in the argument." Mr. Van Buren, Sec. of State, to Mr. Rives, minister to France, July 20, See, as to the limited war with France of 1798, Mr. Gallatin to Mr. "Mr. Gallatin having been applied to in 1827, to advocate a claim. for indemnity of an American citizen on the British Government arising out of the capture and condemnation of vessels and cargoes in 1809, and consequently prior to the war of 1812, wrote to the Secretary of State: You will perceive by the inclosed copy of the Treasury answer that this is one of the numerous cases of vessels condemned by the British courts either under illegal decrees or under false pretenses, and for which no indemnity was obtained by the treaty of peace. You may remember that at Ghent we made a kind of protocol for the purpose of preserving the rights of the United States and of their citizens, notwithstanding that omission. The claim may at any time be made, though certainly not with any expectation that it will be entertained by Great Britain. I am not aware that this has ever been done. However desirous to be useful to our citizens, I would not venture on a step of this kind before the subject had been fully examined and the President had decided thereon.' (Mr. Gallatin to Mr. Clay, April 3, 1827, MS.)" Lawrence's Wheaton (1863), 878. |