The Venezuelan Government, after having at first refused to discuss during a period of six months any claims for compensation, issued in January, 1901, a decree appointing a commission of Venezuelan officials, to whom such claims were required to be submitted within three months. By this decree it was provided (1) that claims arising prior to May 23, 1899, i. e., before the accession of President Castro, should not be considered; (2) that all diplomatic protest against the decisions of the commission was excluded, an appeal being allowed to the Venezuelan supreme court; and (3) that the claims recognized by the commission should be paid with bonds of a revolutionary debt, to be newly emitted. To these provisions the German Government objected (1) that the Castro government, like all other governments, was responsible for the acts of its predecessors; (2) that the members of the Venezuelan supreme court were "entirely dependent on the Government" and had "frequently been simply dismissed by the President;" and (3) that the new revolutionary bonds would, judging by experience, be worthless. The course of the Venezuelan Government was therefore considered "as a frivolous attempt to avoid just obligations;" and, as was expected, several of the few German claims put before the commission had been rejected, while others had been "reduced in a decidedly malicious way." The German Government had at first sought to induce the Government to change its decree in the three particulars mentioned, but, failing in that, had been forced to declare its refusal to acknowledge the decree, the majority of the powers having similar claims, and especially the United States, making similar declarations. To these declarations the Venezuelan Government replied that foreigners could not be treated in a different way from citizens of the country; that the settlement of the claims in question was a domestic matter, any interference in which by a foreign power would constitute an injury to the national sovereignty; and that, all diplomatic action being repelled, the claimants, after the term of three months mentioned in the decree, must resort exclusively to the supreme court. The German Government, believing further negotiations on that basis to be hopeless, had therefore decided to submit the claims. directly to the Venezuelan Government and ask for their settlement, and, if that Government should continue to adhere to its previous position, would be obliged to consider what measures of coercion should be employed. Promemoria of the German Embassy at Washington, Dec. 11, 1901, For, 4. UNJUST JUDGMENTS NOT INTERNATIONALLY BINDING. § 991. "Grotius states that a judicial sentence, plainly against right, (in re minimè dubiâ,) to the prejudice of a foreigner, entitles his nation to obtain reparation by reprisals: For the authority of the judge,' says he, is not of the same force against strangers as against subjects. Here is the difference: Subjects are bound up and concluded by the sentence of the judge, though it be unjust, so that they can not lawfully oppose its execution, nor by force recover their own right, on account of the controlling efficacy of that authority under which they live. But strangers have coercive power, (that is, of reprisals, of which the author is treating,) though it be not lawful to use it so long as they can obtain their right in the ordinary course of justice.' "So, also, Bynkershoek, in treating the same subject, puts an unjust judgment upon the same footing with naked violence, in authorizing reprisals on the part of the state whose subjects have been thus injured by the tribunals of another state. And Vattal, in enumerating the different modes in which justice may be refused, so as to authorize reprisals, mentions a judgment manifestly unjust and partial;' and though he states what is undeniable, that the judg ments of the ordinary tribunals ought not to be called in question upon frivolous or doubtful grounds, yet he is manifestly far from attributing to them that sanctity which would absolutely preclude foreigners from seeking redress against them." Wheaton, Lawrence's edition (1863), 673–674, citing grotius, de Jur. Bel. See a discussion of this principle in Mr. Mariscal, Mexican min. of for. "The defense of res adjudicata does not apply to cases where the judgment set up is in violation of international law." Wharton, Int. Law Digest, II. 671. "The executive and the judicial departments of the Government being co-ordinate powers, it follows that judicial decisions on questions of international law, while entitled to great respect, do not bind the Department as would rulings of a superior tribunal. In addition to other reasons for this position (see considerations stated in Whart. Com. Am. Law, § 391), the very fact that the judiciary applies municipal law, while the Department of State is bound to consider not merely municipal law, but the relations of the United States to foreign powers irrespective of municipal legislation or adjudication, makes it necessary for the executive to act, in matters of international law, as a power independent of the judiciary. In accordance with this view the supremacy of the political departments of the Government has been acknowledged by the judiciary in respect to territorial boundaries and to recognition of foreign governments. The executive also is regarded by the judiciary as the final tribunal by whom is to be determined the question of the pressure of claims by citizens of the United States on foreign sovereigns. A construction of a treaty, also, by the courts of one of the contracting sovereigns can only have municipal operation; nor can such construction be set up, even by the sovereign by whose courts it is pronounced, as an authority when conducting negotiations with the other sovereign as to the meaning of the treaty. That meaning is a matter of international settlement. If the parties cannot agree in reference to it, it must be referred to arbitration or, as the last resort, to war, Nor can the judiciary control the actions of the executive in either the construction or the application of a treaty. "That a sovereign cannot protect himself by a decision of one of his prize courts, when such decision is in conflict with sound principles of international law, will be hereafter seen. It is important to keep in mind in this connection the striking summary of Mr Cushing, given April 11, 1866, to the Secretary of the Treasury, as indorsed by Sir T. Twiss in his pamphlet on Continuous Voyages, that 'whilst the political department of the American Government was engaged in the early part of the present century in combating the overstrained construction of the laws of maritime war, set up by the courts and publicists of England, not a few of the most exceptionable of these constructions were at the same time being transported, one by one, into the jurisprudence of the United States by the judicial department of its Government, with a prevailing tendency to exaggerate the rights of prize in the interests of the captors.' Sir T. Twiss adds that it would ill become an English jurist not to admit that the prize tribunals of the United States had ample justification, in the early part of the present century, in reciprocating the rigorous rules which Lord Stowall applied to the trade of neutrals during the wars of the French revolution, and which were traditions from the wars of the previous century.' As a further illustration of this tendency may be cited the Springbok case. On this subject see, in general, Judge Cooper's opinion on the effect of a sentence of a foreign court of admiralty;' edited and approved by Mr. A. J. Dallas, Philadelphia, 1810." Note of Dr. Francis Wharton, Wharton's Int. Law Digest, § 238, II. 672. Where the determination of a claim belonged of right to the judicial tribunals of the country in which it was made, "their decision could not justly be disputed by this Government, in behalf of one of its citizens, except when palpable injustice had been done, or a manifest violation had been committed of the rules and forms of proceeding. To arraign the judgment of a foreign court of competent authority regularly pronounced in a controversy respecting which opinions might reasonably differ, would be a denial of the jurisdiction of the court and a violation of the law of nations." Mr. Forsyth, Sec. of State, to Mr. Welsh, March 14, 1835, 27 MS. Dom. Where a claimant on a foreign country has, by the law of such country," the choice of either the judicial or the administrative branch of the Government through which to seek relief," and selects the latter, this does not make the arbitrary decision of the latter against him final and conclusive. Mr. Fish, Sec. of State, to Mr. Nelson, min. to Mexico, Jan. 2, 1873, MS. A collusive or irregular judgment by a foreign court is no bar to diplomatic proceedings by the sovereign of the plaintiff against the sovereign of the court rendering the judgment. Mr. Evarts, Sec. of State, to Mr. Foster, min. to Mexico, April 19, 1879, The treaty with Colombia of 1850 having empowered the consuls of the contracting parties to sell the "movable property" of deceased citizens of their respective nations, a question arose as to whether certain property which the United States consul at Colon had assumed to sell under this stipulation was to be considered under the laws of Colombia as movable or as immovable property. On this question the two Governments, after taking the advice of Colombian counsel, differed. Finally, the Colombian courts decided that the property in question was not movable property, and that the sale by the consul was therefore void. "The local courts undoubtedly had jurisdiction to pass upon this question and, in view of the difference of legal opinion entertained concerning it, it cannot be said that the decision amounted to a denial of justice." Hence there appeared to be no ground for presenting to the Colombian Government a claim for indemnity for the purchase money originally paid to the consul. Mr. Gresham, Sec. of State, to Messrs. Hunter & Popham, Jan. 5, 1894, 195 MS. Dom. Let. 48. As to the case of Mrs. Smith, here referred to, see supra, § 722. "An international reclamation, the rejection of which may justify reprisals or even be treated as a casus belli, ought not to rest on pure technicalities when the facts and evidence are against the claim. It should be founded upon something more than the mere nonobservance of legal formalities-upon something more than irregularities originating in ignorance or inadvertence rather than in intention, and not necessarily nor actually working any substantial wrong or injustice." Report of Mr. Olney, Sec. of State, to the President, Feb. 5, 1896, in relation to the case of John L. Waller, H. Doc. 225, 54 Cong. 1 sess. 7; For. Rel. 1895, I. 257-258. A question arose before the mixed commission under Art. VII. of the Jay treaty, as to the power of the board to award compensation in cases in which the sentences of condemnation of the English prize courts had been affirmed by the lords commissioners of appeal, who constituted the court of last resort in prize cases. By the advocate of the British Government, the position was maintained that the judgments of the lords commissioners of appeal were final, and that for this reason the mixed commission could but acquiesce in them; while, on the part of the United States, it was contended that the judgments in question might be examined, in order to ascertain whether they were in conformity with the law of nations, and that if they should be found not to be so damages should be awarded to the claimants. As the mixed commission was prevented by the action of the British commissioners, who withdrew and destroyed a quorum, from rendering a decision on the point, the question was brought by Rufus King, the minister of the United States in London, to the attention of Lord Grenville. His lordship referred it to the Lord Chancellor, Loughborough, who held that although the mixed commission did not constitute a "court of appeals" above the lords commissioners, yet it was competent to examine questions decided by the latter, and to give redress, "not by reversing the decrees already passed and restoring the identical property, but by awarding compensation." Awards were afterwards regularly made by the mixed commission in favor of claimants wherever the condemnations appeared to be unjust. Moore, Int. Arbitrations, I. 324–327. See the opinions of the members of the mixed commission on the question of finality, Moore, Int. Arbitrations, III, 3160 et seq., and especially the great demonstration of Pinkney, in the case of the Betsey, id. 3180. See, also, Wheaton's Life of Pinkney, Appendix. "Those acts [of a sovereign], however binding upon his own subjects, if they are not conformable to the public law of the world, can not be considered as binding upon the subjects of other states. A wrong done to them, forms an equally just subject of complaint on the part of their government, whether it proceed from the direct agency of the sovereign himself, or is inflicted by the instrumentality of his tribunals." |