2

of the condemnation being hopeless, an appeal was excused;1 but this rule was most strictly construed, and if a substantial right of appeal existed, failure to prosecute an appeal operated as a bar to relief. Where the question is presented as to whether the government of a country has discharged its duty in rendering local protection to the citizens of another nation, the United States has contended that that government cannot be the final judge of its own conduct.3

A palpable denial of justice in the lower courts has on several occasions been held by the Department of State and by arbitral tribunals 5 to relieve a claimant from the necessity of exhausting his local remedies.

6

A claimant is not, however, relieved from exhausting his local remedies by alleging his inability, through poverty, to meet the expenses involved; his ignorance of his right of appeal; 7 the fact that he acted on the advice of counsel; or a pretended impossibility or uselessness of action before the local courts.9

We have already adverted to the attempts of the states of LatinAmerican to restrict aliens to their recourse to the local courts. When foreign governments deem the conditions of such recourse too onerous,

1 Kane's notes on commission of July 4, 1831 between U. S. and France, Moore's Arb. 4472; Bark Jones (U. S.) v. Great Britain, Feb. 8, 1853, ibid. 3046.

2 Schooner Peggy, 1 Cranch, 103, 107; Ship Tom, 39 Ct. Cl. 290; Brig Freemason, 45 Ct. Cl. 555, 560.

3 Mr. Blaine, Sec'y of State, to Mr. Dougherty, Jan. 5, 1891, Moore's Dig. VI, 805. 4 Mr. Bayard, Sec'y of State, to the President, Feb. 26, 1887, Moore's Dig. VI, 667; Mr. Bayard, to Mr. Copeland, Feb. 23, 1886 (dictum), ibid. 699; Mr. Marcy, Sec'y of State, to Mr. Clay, May 24, 1855, ibid. 659; Mr. Fish, Sec'y of State, to Mr. Pratt, March 20, 1875, ibid. 661.

5 Glenn (U.S.) v. Mexico, July 4, 1868, Moore's Arb. 3138 (“general unsympathetic attitude of the lower court"); Prize cases (Gt. Brit.) v. U. S., May 8, 1871, ibid. 3152, 3159 (misfeasance or default of capturing government in preventing appeal, dictum by Frazer, commissioner); Montano (Peru) v. U. S., Jan. 12, 1863, ibid. 1630, 1634.

6 Mr. Adee, Act'g Sec'y of State, to Signor Carignani, Oct. 10, 1901, For. Rel., 1901, 310; Mr. Olney, Sec'y of State, to Mr. Dessaw, Nov. 19, 1896, Moore's Dig. VI, 670; Gravely (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3158; McLeod, ibid. 3158; Horton, ibid. 3158; Napier (U. S.) v. Great Britain, ibid. 3152.

7 Carson (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3157; Creighton, ibid. 3158.

8 Heycock (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3157.

9 Diaz v. Guatemala, Central American Court of Justice, 39 Clunet (1912), 274.

e. g., as in the case of the Venezuelan law of Feb. 14, 1873, or consider the local remedy provided as insufficient to afford the necessary relief or redress, they will not regard their citizens as bound to resort to or exhaust their local remedies, but will in their discretion make the claim a subject of diplomatic negotiation.1

3

When the two governments have by agreement made a pecuniary claim the subject of diplomatic negotiation the claimant is considered as relieved of the necessity of having recourse to the local courts, unless his own government so consents and directs. It has already been observed that an agreement to arbitrate has been construed as having the same effect. The agreement is deemed to withdraw the case from the courts, the local remedy being superseded by the international remedy. Even apart from any agreement, when a citizen has appealed to his government for protection and the government has undertaken to support his claim diplomatically, recourse to the local courts is no longer necessary, unless required by his own government.4

LACHES, LIMITATION AND PRESCRIPTION

§ 384. Effect of Delay in Presenting Claim.

Closely related to the failure to exhaust local remedies is the unnecessary delay in resorting to a remedy. The claimant who permits too long a time to elapse before making known his claim, loses his remedy and therefore his legal right in all systems of jurisprudence. Domat well said: "The indolence of those who are dilatory in recovering their property and claiming what is due them, should be punished, and . . . those who are indolent shall impute to themselves the punishment." 5 This principle has been denominated as a loss of right by prescription, a term which requires explanation for the lawyer of

1 Wharton, II, § 242, Moore's Dig. VI, § 990.

2 Moore's Dig. VI, § 989. See also U. S. v. Diekelman, 92 U. S. 520, 524, where the Court of Claims was designated as the appropriate forum with consent of Prussian government.

3 Day, Arbitrator, in Metzger (U. S.) v. Haiti, Oct. 18, 1899, For. Rel., 1901, 262 and supra, p. 819, note 2.

Mr. Hill, Act'g Sec'y of State, to Mr. Merry, Sept. 29, 1900, For. Rel., 1900, 809, Moore's Dig. VI, 685–686.

5 Domat, Civil and public law (Strahan's ed., 1732), Lib. 8, t. 7, § 4.

the common law, in that acquisitive prescription, or the acquisition of right or title by long-continued and uncontested possession must be distinguished from extinctive or negative prescription, by which is meant the limitation of action or loss of a remedy.1

The principles of public policy-based upon such practical considerations as the destruction and loss of evidence, the inability to call witnesses, etc., which place a bar upon the prosecution of stale and aged claims, hardly require discussion. The necessity for peace from litigation after the lapse of a certain period of time is as applicable to public law as it is to private law. "Time itself is an unwritten statute of repose," and while states, in the prosecution of international claims, are not bound by any specific statute of limitations, the principle underlying these statutes and the doctrine of laches are applied by them. We cannot do better here than to quote the able statement of Dr. Francis Wharton, formerly Solicitor of the Department of State:

"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 cannot 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 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

1 Holland's Jurisprudence, 11th ed., 1910, p. 213. See also Angell, J. K., Limitations of actions at law and suits in equity and admiralty, 6th ed., by John W. May, Boston, 1876, Ch. I; Hewitt, E. P., Statutes of limitations, London, 1893, pp. 1-3; Wood, H. G., Limitations of actions at law and in equity, 3rd ed., by J. M. Gould, Boston, 1901.

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 together.'" 1

§ 385. Laches.

The unreasonable delay or neglect in enforcing a claim at a proper time is in itself a ground for its rejection, quite apart from the matter of lapse of time, which merely raises certain (often conclusive) presumptions. The reason for the rule is that the delay in the presentation of the claim prevents the defendant government from adducing defenses and invoking remedies of which, had it had timely notice of the claim, it might have availed itself. Laches operates as a waiver of rights. What is unreasonable delay or neglect depends, of course, upon the particular facts and circumstances of each case. The period of delay may on occasion be very short.2 The failure to present a claim either at all or in good time to a commission established for the purpose of hearing claims,3 or to enter an appeal from a municipal decision within the time allowed, provided the time and the circumstances are fair and reasonable, have been held to constitute justifications for dismissal of a claim on the ground of laches. When the time for municipal suit or appeal was too short, the claimant, if an alien, has been excused by his government for the failure to bring his action within the time allowed,5 and has been accorded diplomatic redress.

4

1 Note in 3 Wharton, 972, § 239, Appendix.

2 Davis (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 406 (failure for two years to notify Venezuela of the erroneous delivery of consigned goods by customs officials, dictum); Underhill (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 45, 46 (failure to bring action promptly against tort-feasor, dictum by Paul, Venezuelan Commissioner); Turner (U. S.) v. Mexico, Apr. 11, 1839, Moore's Arb. 3126.

3 Commission of July 4, 1831, between U. S. and France dismissed claims in which claimant failed to avail himself of the relief provided under the treaty of 1800. Kane's notes, p. 90. Haggerty et al. (U. S.) v. Mexico, Act of March 3, 1849, Moore's Arb. 2665 (failure to present claim to 1839 commission, a jurisdictional condition, without explaining omission). See also Accessory Transit Co. (U. S.) v. Costa Rica, July 2, 1860, Moore's Arb. 1563; Mr. Bayard, Sec'y of State, to Mr. Muruaga, Dec. 3, 1886, For. Rel., 1887, 1015, 1022.

4 The Fame (U. S.) v. Great Britain, Nov. 19, 1794, Moore's Arb. 3100 (failure to enter appeal until 18 months after time allowed).

5 Supra, p. 823.

Governments frequently establish domestic tribunals to hear claims of individuals against the state. The Southern Claims Commission was such a tribunal, and the Court of Claims and Heads of Departments, under various general and special acts, have acted and act in that capacity. In practically all cases, a statute of limitations is provided for, by which citizens and aliens are bound.1 Foreign governments, particularly those of Latin-America have often established such domestic commissions, particularly at the end of revolutionary disturbances, and have set a definite limitation of time for the presentation of claims. If this period has seemed unreasonably short, and foreign governments have regarded the local government as internationally responsible for the injury upon which the claim of their citizen is based, these governments have not considered themselves as deprived of the right of presenting a diplomatic claim by reason of the claimant's failure through inability to appear on time before the local tribunal.2 Thus, Secretary Hay in 1899, said: "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 cannot be deduced from the fact that it did not expressly object to it." 3

386. Limitation.

Strictly speaking, the lapse of a long time without presenting a claim raises a presumption of laches. But in view of the fact that there is no specific statute of limitations in international law, a claimant may overcome the presumption of laches arising from long delay by showing a valid excuse or justification. Thus, international com

1 The application of the statute of limitations under the Bowman and other Acts, and the application of the doctrine of laches by the Court of Claims and in the Departments is discussed by C. F. Carusi in an article on Government contracts, 43 Amer. L. Rev. (1909), 161, 165–169.

2 Mr. Clayton, Sec'y of State, to Mr. Van Alen, July 10, 1849, Moore's Dig. VI, 1002. This position might be justified on the ground that a proper international obligation cannot be avoided by municipal statute. See Spader (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 162; Morris' Report, 326, 327. Natives, of course, are bound by the municipal statute.

3 Mr. Hay to Mr. Dudley, March 28, 1899, as printed in Moore's Dig. VI, 1003.