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. 8 The position taken by the above named commission in the Williams case was followed in the Cadiz case (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,1o holding that, A right unasserted for over forty-three years can hardly in justice be called a * claim." 66 * * 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 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. He 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. 15 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. Here the acts complained of were committed pursuant to the orders of the highest military authority of the State. The injured party at once. appealed to the judicial authority, which denied relief, and then to the immediate representative of the nation, who, upon a subterfuge, refused his assistance. The responsible constituted authorities knew at all times of the wrongdoing, and if the complaint was baseless an impossible conclusion under the evidence-judicial, military, and prison records must exist to demonstrate the fact. When the reason for the rule of prescription ceases, the rule ceases, and such is the case now. About the same time there was also presented to the same umpire the Giacopini case,19 and thirty-two years having elapsed, prescription was again invoked as a defense by the Venezuelan government. But the umpire said that, Examination of the expediente in the present case shows that the tribunal before which the proofs were made (in November, 1872), directed notice to the fiscal of the nation before their taking; that he was present and vigorously cross-examined the witnesses; that he asked and was accorded by the judge a copy of the evidence. The Government knowing in this manner of the existence of the claim had ample opportunity to prepare its defense. As was stated in the Gentini case, principle of prescription finds its foundation in the highest equity the avoidance of possible injustice to the defendant." In the present case, full notice having been given to the defendant, no danger of injustice exists, and the rule of prescription fails. the In the case of Corwin,20 Little, Commissioner, speaking for the commission, referring to the time of its last presentation, said: Venezuela had then been a state thirty-three years. The demand was thirty-nine years old. It had been presented to the old Republic and not allowed. Venezuela now could not be supposed to have anticipated its resurrection. The witnesses to the transaction in 1824 had presumably, passed away, and other means of defence become dissipated. But owing to the possible incompleteness of the record in this regard, we prefer to base our conclusion upon the other grounds stated, assuming proper and timely presentation of the claim against Venezuela. Quite extended consideration of this subject was given by Plumley, umpire of the British-Venezuelan Commission 21 in the Stevenson case, he stating in the course of his discussion that, 19 Ven. Arb. of 1903, p. 765. 20 Report, U. S. & Ven. Com. of 1889, p. 119. 21 Ven. Arb. of 1903, p. 327. When a claim is internationally presented for the first time after a long lapse of time, there arise both a presumption and a fact. The presumption, more or less strong according to the attending circumstances, is that there is some lack of honesty in the claim, either that there was never a basis for it or that it has been paid. The fact is that by the delay in making the claim the opposing party in this case the Government is prevented from accumulating the evidence on its part which would oppose the claim, and on this fact arises another presumption that it could have been adduced. In such a case the delay of the claimant, if it did not establish the presumption just referred to, would work injustice and inequity in its relation to the respondent Government. We have already referred to the fact that where the government possesses, or may properly be expected to possess, in its archives official records which would control the disposition of the claim, as in the case of bonds, claims for taxes and duties paid, etc., the principle of prescription may not be applied, and this consideration would have been amply sufficient to justify the opinion of Upham, American Commissioner, speaking for the commission in the King and Gracie case, 22 wherein he said: The first question arising for the consideration of the commission is, whether any legal bar on account of lapse of time exists against sustaining the claim for a return of duties. This seems now hardly to be contended for. Where a treaty is made between two independent powers. its stipulations can not be deferred, modified, or impaired by the action. of one party without the assent of the other. If the parties, by their joint act, have established no barrier in point of time to the prosecution of any claims under a treaty made by them, then neither country can interpose such limit. The case admits of no other judicial construction. The legal advisers of the crown concur in this view, and the commissioners have no doubt on the point. It is conceded, as a matter of fact, that an inequality in duties existed in violation of the provisions of the treaty; and, there being no bar to the recovery of the claim from lapse of time, such duties shall be refunded. But negligence on the part of the claimant government in pressing for a disposition of a case to which the attention of the respondent government has once been directed, can not be invoked as a ground of prescription. This appears to have been first recognized by Sir 22 United States and Great Britain Claims Commission of 1855, Report, p. 309; Moore: op. cit., p. 4179. |