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PRESCRIPTION 1

Of the two kinds of prescription, acquisitive (acquisition by usucaption) or extinctive, the latter has more frequently received the consideration of claims commissions and to it we desire first to particularly address ourselves.

In the Pious Fund case before a tribunal of the Hague Permanent Court of Arbitration, it was held that the rules of prescription related exclusively to the domain of civil law and could not be applied to the international conflict between the United States and Mexico.2 Nevertheless, in the Gentini case, the umpire pointed out the distinction between rules of prescription, which were such as would be established by a government, and the principle of prescription which he said was “ well recognized in international law,” and could be applied as well in a conflict to which a state was a party as to a conflict between private individuals.

One of the earlier cases in which the matter was discussed was that of Black and Stratton before the Mexican-American Claims Commission of 1868,4 Thornton, umpire, not feeling justified in condemning the Mexican government upon weak evidence as to the illegality of the acts of its authorities and after more than fifteen years had elapsed without the claimants having made any complaint whatever of the conduct of those authorities.

In the Mossman case the same umpire said:

It seems unfair that the latter (the Mexican government) should be first informed of the alleged misconduct of its inferior authorities more

1 Chapter from a forthcoming work on the subject of “Arbitral International Law and Procedure,” being a résumé of law and practice as laid down by arbitral tribunals; prepared by Jackson H. Ralston, late Umpire of the Italian-Venezue. lan Mixed Commission, and editor of “Venezuelan Arbitrations of 1903," etc.

2 U. S. Agent's Report, Pious Fund Case, pages 17 and 876.
3 Ven. Arb. of 1903, p. 720.
4 Moore: Arbitrations, 3139.
5 Moore: op. cit., p. 4181.

The umpire

than fifteen years after the date of the acts complained of. can not under this circumstance consider that the Mexican Government can be called upon to give compensation for a very doubtful injury, and he therefore awards that the claim be disallowed.

The preceding umpire of this commission, Colonel Lieber, evidently felt the influence of the ideas above expressed, for in the Selkirk case 6 he refers disapprovingly to the fact that the claimant had allowed nearly twenty full years to elapse before the presentation to Mexico of his claim.

The same question as to the right to invoke prescription in favor of a nation before a mixed claims commission arose in the United States and Venezuelan Claims Commission of 1889,7 in the Williams case, wherein the commission argued at great length and with marked ability in favor of the application of the principle of prescription. Among other things, they say:

It thus appears then that the claim was not brought to the attention of the Venezuelan government until twenty-six years after its inception. Its ownership, nature and amount were such as would have made a delay in presentation to the debtor for a single three-months a matter of surprise. By lapse of time the means of defence have been impaired and there is total want of excuse for the long delay by claimant. Under such circumstances, what does the law require at our hands?

It is a well settled principle in common law jurisdictions, and a recognized one in civil law countries, that obligations are to be enforced according to the lex loci fori which here is the treaty and the public law. Beyond the requirement that its decisions must be according to justice, the treaty furnishes no guide to the Commission respecting the operation of the lapse of time in extinguishing obligations. It is left to the direction of international law on the subject. Does that recognize the doctrine of such extinguishment as between states, in controversies life these?

It may be well preliminarily to note that, while individual interests are involved, these controversies, as elsewhere seen, are between States in some sense, and stand much as if so originating; and, further, that while the texts will be seen largely to relate to territorial acquisitions, the prin ciples announced comprehend the acquisition and loss of personal property and pertain to other rights as well.

Prescription is a "rule of inference; not necessarily perhaps that debts have been paid or titles granted, or other particular thing done, but

6 Moore: op. cit., p. 3130.
? Report, p. 51; Moore: op. cit., p. 4181.

that something at least has transpired which, in the natural order, as the Civilians say, forms a basis and demand for its operation. It is no more the creature of legislative will than is any other induction. That the lapse of time variant according to circumstances, needed to raise a rational presumption of a past occurrence, happens to coincide in a particular case with the statutory period in that behalf, does not make prescription and statutory limitation one. They are always distinct. The former relates to substance, is the same in all jurisdictions, and aims at justice in every case. While the latter pertains to process, varies as a rule in all jurisdictions, and from time to time often arbitrarily in the same one, and admits occasional individual injustice. Lord Coke, as seen, thought prescription “abideth” at common law notwithstanding the “estate.'

To withhold causelessly a demand for goods sold until the witnesses to the transaction and other usual means of ascertaining the facts have, in ordinary course, passed away, is negligent conduct; while to withhold a bond issued by public authority and of which presumptively a public register is kept for a like time after maturity, may not be.

*

Wharton in his second edition remarks (appendix to third volume) “ While international proceedings for redress are not bound by the letter of specific statutes of limitation, 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 limitation 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.”

The commission cited in support of its position the opinions of many law writers in addition to those above referred to, among others being Vattel, Phillimore, Hall, Polson, Calvo, Vico, Grotius, Wheaton, Taparelli, Sala, Sir Henry Maine, Brocher, Domat, Burke, and Markby.

The position taken by the above named commission in the Williams case was followed in the Cadiz case 8 (also cited as the case of Loretta G. Barbarie), wherein it was said:

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

8 Moore: op. cit., p. 4199; Report of Commission, p. 73.

so because it happens to be an international one, and this tribunal in dealing with it can not escape the obligation of a universally recognized principle, simply because these happens to be no code of positive rules by which its action is to be governed.

*

Again, in the Driggs case, this commission used the following language:

Twenty-eight years had elapsed since the alleged wrong by the Columbian Government, and not a complaint had been made by Driggs! There is not a case on our list that better illustrates the wisdom of the prescriptive rule. The evidence is contradictory, and the actual witnesses to the essential transactions on the part of the Government had presumably passed away, for their evidence was not procured when the claim was asserted.

Before the commissions sitting in Caracas in 1903, the question first arose in the Spader case, Bainbridge, American Commissioner, speaking for the commission,1° holding that,

A right unasserted for over forty-three years can hardly in justice be called a

claim." It is doubtless true that municipal statutes of limitation can not operate to bar an international claim. But the reason which lies at the foundation of such statutes, that “great principle of peace,” is as obligatory in the administration of justice by an international tribunal as the statutes are binding upon municipal courts.

This subject received more lengthy consideration in the Gentini case, 11 above referred to, than in any other before the Caracas commissions. In this case the claimant, seeking to recover for injuries inflicted upon him in 1871, did not appear before the Venezuelan authorities, or even ask the legation of Italy, his country, to make his demand until 1903, a period of thirty-two years. After distinguishing, as above indicated, between national rules of prescription and the principles of the same subject, and adding to the many international law authorities cited in the Williams case, the names of Bello 12 and Bluntschli,13 the umpire referred to the civil law writers, including

9 Report, p. 403.
10 Ven. Arb. of 1903, p. 161.
11 Ven. Arb. of 1903, p. 720.
12 Derecho Internacional, p. 42.
13 Droit International, section 279.

Savigny,14 Troplong,15 and Laurent,16 as showing that prescription was a right of humanity. He found the common-law writers on prescription and the cognate title of laches reaching a like conclusion and considered that all the arguments in favor of it (prescription] as between individuals exist equally as well when the case of a national is taken up by his government against another, subject to considerations and exceptions noted at the end of this opinion. For may not a government equally with an individual lose its vouchers, particularly when, if any existed, they are in the hands of far distant subordinate agents? If there be collusion between claimant and official, will not government witnesses die as readily as those of private individuals? If the claimant's own action be the cause of the misfortunes of which he complains, will not knowledge of the fact be lost with the flight of time? May the claimant against the government, with more justice than if he claimed against his neighbor, virtually conceal his supposed cause of action until its investigation becomes impossible? Does equity permit it? And this brings us to a further point. We are told with truth that this is a Commission whose acts are to be controlled by absolute equity, and that equity will not permit the interposition of a purely legal defense as prescription is said to be. But is this position correct? As appears from the foregoing citations, the principle of prescription finds its foundation in the highest equity — the avoidance of possible injustice to the defendant, the claimant having had ample time to bring his own action, and therefore if he has lost, having only his own negligence to accuse.

The umpire referred to the King and Gracie case,17 to be hereafter discussed, as constituting a possible exception, as well as to the fact that in the Williams case (supra) it had been recognized that the time which would bar an account might not affect a bond as to which a public register had been kept. IIe also adverted to the fact that presentation of a claim to competent authority within proper time would interrupt the running of prescription.

Shortly after there was presented to the same umpire the Tagliaferro case, 18 in which Venezuela insisted upon prescription as a sufficient defense. But the umpire said:

14 Droit Romain, volume 5, sections 237 and 245.
16 Droit Civil Expliqué, title Prescription," vol. 1, page 14.
16 Vol. 32, page 23, section 12.

17 United States and British Claims Commission of 1855, Report, p. 309; Moore: op. cit., p. 4179.

18 Ven. Arb. of 1903, p. 764.

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