¹ 6 Moore, Dig. Int. Law, 286.

² Lord Palmerston there stated that the question of whether his government should make the matter of nonpayment of foreign bonds a subject of international negotiation was entirely a matter of discretion and not a question of international right. 1 Scott’s Hague Peace Conferences, 402.

³ Lord John Russell, in 1861, wrote: “It has not been the custom of Her Majesty’s government, although they have always held themselves free to do so, to interfere authoritatively on behalf of those who have chosen to lend their money to foreign governments.” 1 Scott’s Hague Peace Conferences, 402.

⁴ 1 Scott’s Hague Peace Conferences, 402.

⁵ Hershey, Article on Calvo and Drago Doctrines, 1 Am. Journal of Int. Law, 37.

⁶ Int. Law, 5th ed., 281.

⁷ Article 6 of the Jay Treaty between the United States and Great Britain, 1 Moore Int. Arb. 271; under the Florida Treaty between United States and Spain, 5 Moore Int. Arb. 4504; United States and Chilean Commission, 1892, 4 Moore Int. Arb. 3569; the Venezuelan Bond Cases, 4 Moore Int. Arb. 3616, 3631, 3651; Garrison Case, ibid, 3554; the Hammaker Case v. Mexico, 4 Moore Int. Arb. 3470; the Idler Case v. Venezuela, 4 Moore Int. Arb. 3491; the Central and South American Telegraph Company v. Chile, United States & Chilean Arbitrations, 1901, p. 205. For further cases of contract claims, without tortious elements, presented and enforced to the point of arbitration before an international tribunal, see 4 Moore Int. Arb. at the following pages: Herman case, p. 3425, supplies to a war vessel; Hunter case, p. 3426, war supplies; Eckford’s case, p. 3429, for building of man-of-war; William S. Parrott case, p. 3429, claim on a bill of exchange against Mexico; Meade’s case, p. 3430, delivering to Mexico vessels of war; Zander case, p. 3432, for supplies, which, though unsuccessful, was yet presented and was merely a contract; Underbill’s case, p. 3433, for a charter of a vessel to the government; Ulrick’s case, p. 3434, for lease of a house for a legation; Union Land Company case, p. 3434, on colonization contracts; there were claims against Mexico for depreciation of scrip arising out of the Texas Revolution, etc., p. 3445; Mary Smith case, p. 3456, an order for $211, not allowed, but presented; Hayes’ case, p. 3457, on contract, not allowed, but presented; Rowland’s case, p. 3458, for customs receipts, not allowed, but presented; Eldredge’s case, p. 3460, for loans and supplies to the government; the Manasse & Company case, p. 3462, supplies of war; the Itarria case, p. 3464, supplies to troops; Newton’s case, p. 3465, the amount unpaid on custom house drafts was allowed; Steelman’s case, p. 3465, sale of arms to the government; DeWitt case, p. 3466, the Hammaker case, p. 3470, the Idler case, p. 3491, recovery for military supplies; cases of Donnell’s Executor and Hollins & McBlair, pp. 2545, 3547, for supplies, sale of provisions; case of Beales, Nobles & Garrison, p. 3548, on an immigration contract; case of Flannagan, Bradley, Clark & Co., p. 3564> Walter’s case, p. 3567, customs dues due for building mole and breakwater; Trumbull’s case, p. 3569, claim for services as counsel for a diplomatic agent; Hodgkins case and Landreau claims, pp. 3571, 3584, based on discovery in Peru of certain guano deposits and claim against the government in consequence.

Likewise all the cases in which the different governments of the world have pressed the claims of bondholders against foreign governments, even to the extent of intervention and war, are clear precedents that claims for breaches of contract, where gross injustice is apparent, will be insisted upon even in the absence of tortious element of seizure of property.

Among historic instances is the case of the intervention of France and England in Mexico for the protection of Mexican bondholders.

So the intervention of Germany, England, and. Italy by bombardment and blockade of Venezuelan ports in 1903 was on behalf of claimants holding merely contractual, as well as other, claims.

Other precedents of insistence upon mere bondholders’ claims where of course there was no tortious element of seizure of property, but only the refusal to pay an obligation, are the cases mentioned in chapter 64 of Moore’s International Arbitrations. 4 Moore Int. Arb. 3591-3664. See also 4 Moore Int. Arb., Ch. 63, pp. 3425-3490; the Venezuelan Bond cases, 4 Moore Int. Arb. 3616-3651; Garrison v. Venezuela, No. 38, U. S. & Venezuelan Claims Commission, 1885; Mayers v. Chile, U. S. & Chilean Claims Comm., 1901; Central & South Am. Telephone Co. v. Chile, id.; DeWitt v. Mexico, No. 431, U. S. & Mexico Claims Comm., 1868; Mulligan v. Peru, 2 Moore Int. Arb. 1643.

⁸ See 4 Moore International Arbitrations, pp. 3467-3484.

⁹ 6 Moore Dig. Int. Law, Sec. 987.

¹⁰ 1 Scott’s Hague Conferences, 403, 404.

¹¹ See the Icelandic Saga of Nial, Vol. 10, Anglo-Saxon Classics, 96, 108, 181, 183, Chapters 37, 43, 71, and 72.

¹² Maine’s Ancient Law, Chap. IX.

¹³ Principles of Sociology — Political Institutions.

¹⁴ Maine’s Ancient Law, Chap. IX; 2 Pollock and Maitland, History of English Law, 46; Holmes’ Lectures on the Common Law.

¹⁵ Maine’s Ancient Law, p. 310.

¹⁶ The first case (2 Henry IV. 3b) was a nonsuit because no covenant was produced (using covenant in the sense of a written promise under the party’s seal). Yet, Bryan, J., admits the action would lie if the defendant begins to act. In 2 Hen. IV. 33a, a suit for damages for not building a house, Thirning, Ch. J., says: “But when a man makes a covenant” (using covenant in the sense of an oral promise ) “ and will not perform any part of such covenant, how shall you have your action against him without specialty?” (meaning a written instrument under his seal). And in Keilway, 78, pl. 5, S. C. 21 Hen. VII. 41, Frowicke, Ch. J., says: “If I covenant” (using covenant in the sense of an oral promise) “with a carpenter to build a house and pay him £20 to build the house by a certain day and he does not do it, I have a good action on the case by reason of the payment of the money ; and without payment of the money in this case no remedy. And yet if he make the house in a bad manner, an action upon the case lies, and so for nonfeasance if the money be paid action upon the case lies.” So also “Si un ferner assume fur luv a curer non chival que est gravelled on ses paes * * * action sur le case gist fur cest matter sans allege ascum consideration, etc.” 1 Eolle Abr. 10; S. P. 2 Hen. VII. 11. See further Hen. IV. 14; Martin, J., in 3 Hen. VI. 36b, 37a; 14 Hen. VI. 18b, pl. 58; 19 Hen. VI. 49a, pi. 5; 20 Hen. VI. 34a, pi. 1. The result was that the English courts of that day did not enforce a contract evidenced only by mutual promises — the “consensual contract” of the civil law. It will be noticed that the earlier authorities and those sustaining the rule “No action lies for a nonfeasance” pay no attention to the presence or absence of a consideration, i. e., the existence of the reciprocal promises. And the distinction drawn between assumpsit and case does not affect our argument; for the point insisted upon is, that the old rule was: “No action shall be brought upon any special promise unless the testimony of witnesses is corroborated by proof of one of three overt acts of the party charged.” These were his seal, his acting in according with the promise, or his acceptance of the consideration. (Holmes, in his Lectures on the Common Law, says (p. 264) “The rule was laid down; by parol the party is not obliged * * * from Edw. I. to Henry VII. we find no case where a debt was recovered, unless a consideration had in fact been received.”) The protection this rule afforded against perjury was, that manufactured evidence of an overt act of the party himself can be met by direct disproof. This is so unless the alleged act is laid as having been done so long before that witnesses are dead, receipts lost, or a false interpretation can be put upon it without fear of a direct rebuttal. It is this exception that led to the Statute of Limitations.

The ancient rule was found so safe that a relaxation of its strictness was thought just, and finally prevailed in the time of Henry VII. This change consisted in allowing the mere proof of the existence of a consideration to be sufficient to corroborate witnesses, namely, in allowing proof of the existence of one oral promise to be a consideration for the enforcement of ^!the other oral promise.

In view of the rule of common law that inadequacy of consideration did not affect the validity of the contract and the large gains without damage to the plaintiff resulting from obtaining damages on certain classes of these consensual contracts, notably on alleged oral contracts to pay the debts of another person, such perjury occurred, resulting finally in the passage of the Statute of Frauds. This statute prevented oral evidence wherein perjury was likely to be most advantageous to the suborners of perjury and most dangerous to the community. So, likewise, the later Statute of Limitations and Lord Tender-den’s act covered other dangerous developments of perjury arising from the relaxation of the ancient rule above referred to.

¹⁷ Stephens, History of the Criminal Law of England, 60 ; Stephens, General View of the Criminal Law of England, 8, 9; 1 Pollock and Maitland, History of English Law, 46; Saga of Nial, 10 Anglo-Saxon Classics, 96, 108, 181, 183, Chapters 37, 43, 71, and 72.

¹⁸ In Day & Garrison ». Venezuela, No. 38, Mixed Commission, United States & Venezuela, 1886, where the clause provided for an arbitration, the arbitrators differed. Findlay, American, and Andrade, Venezuelan, holding the clause a bar, and John Little, American, holding that since the government repudiated the contract as invalid,

In the case of the North and South American Construction Co. v. Chile, No. 7, United States & Chile Commission of 1892, the arbitrators held that Chile, having suppressed the tribunal provided for by the contract, the clause was no bar. (3 Moore Int. Arb., 2318.)

Again, in the bond claims of Woodruff and Flanagan, Bradley Clark & Co. v. Venezuela, Nos. 20 and 25, United States & Venezuela Arbitrations, 1885, the same commissioners, Findlay and Andrađe, ruled that the clause was a bar to the claim. Judge Little indirectly expressed the true principle applicable to these circumstances, as follows:

The case, having been dismissed, came again before the mixed commission, United States & Venezuela, 1903. The arbitrators having differed, the matter was left to the Umpire, Henri Barge. He held that since the claimants had not applied to the Venezuelan courts, the claim was not yet in a position to be passed on by an arbitral tribunal, and dismissed the case “without prejudice, on the merits.” Mr. Barge further held with bland insouciance the following contradictory propositions: First, that no precedent agreement of its citizen could prevent a foreign government from making international reclamation in his behalf, and, secondly, that this did not prevent the citizen from being bound by his own agreement that he will never appeal to other judges than those he has agreed on. Thereupon, under conditions where the government of the citizen had disregarded the clause in the contract, and by international reclamation forced it to arbitration (by necessary implication to be held upon the merits because the protocol in question read that the decision should be made on the basis of “absolute equity”), the same learned jurist dismissed the claim without deciding it on the merits, and blandly asserted that this result is one which leaves “untouched the right of his government to make his case an object of international claim whenever it thinks proper so to do.” (Venezuelan Arbitrations of 1903, Ralston’s Report, 158-161.)

Query, how often must the government of the wronged citizen make his case an object of international reclamation before it may be passed upon on its merits by an international arbitrator?

Again, in the Rudloff case, the reclamation clause was before Mr. Barge, and he held its existence to be no bar to the claim and awarded damages. (Venezuelan Arbitrations, 1903, pp. 182, 183-200.)

But in the Orinoco Steamship Company’s Case v. Venezuela, and again in the Turnbull Manoa Co. Limited, and Orinoco Co. Ltd. v. Venezuela, the same Mr. Barge held the clause an absolute bar, resulting, in the Orinoco case, in the dismissal of a damage claim of over a million dollars. (Venezuelan Arbitrations, 1903, pp. 90, 91, 244, 245.)

These contradictory decisions, absurdly reasoned, and resulting in mutually destructive conclusions, fit only for opera bouffe, would afford material for the gaiety of nations, were it not that the ripple of laughter dies on the lips when we consider the gross injustice thus perpetrated on private claimants. Decisions such as these have retarded the cause of international arbitration as a solvent for the disputes of nations beyond any possibility of computation. They deserve to be set in a special pillory of their own, so that international arbitrators shall know that however absolute their authority may be in the case in hand, there is a body of public opinion which will fearlessly criticize and condemn such absurd and despotic rulings, and so that at least the possibility of a just criticism shall have its full effect as a deterrent cause in preventing the repetition of such offenses.

But now to other and better reasoned precedents.

In the case of the Ciro and La Vela Railway and Improvement Company damages were allowed in spite of the existence of the clause. (Venezuelan Arbitration, 1903, 174.) So in the case of Virgilio del Genovese (Venezuelan Arbitrations, 1903, 174).

In the La Guira Electric Light & Power Company, Bainbridge, the American Commissioner, in an opinion concurred in by Paul, the Venezuelan Commissioner, speaks of the difference between a claim founded on a contract with some one else than the government, and says:

The case is very different from one in which the government itself has violated a contract to which it is a party. In such a case the jurisdiction of the Commission under the terms of the protocol is beyond question. (Venezuelan Arbitrations, 1903, pp. 175-182.)

In Selwyn’s case, Plumley, Umpire, held that the clause was no bar to the decision on the merits. (Venezuelan Arbitrations, 1903, 322-327.)

In Martin’s case, Ralston, Umpire, held likewise, using this trenchant language:

In the Delagoa Bay Railway Case, in which a contract contained a similar clause providing for an arbitration, Mr. Blaine, U. S. Secretary of State, claimed that Portugal, having broken the contract, could not hold the other party to the arbitration clause, and demanded an international arbitration. This having been had, the existence of the clause was held no barį and the claimants recovered about $4,750,000. (U. S. Foreign Rel., 1900, p. 903; U. S. Foreign Rel., 1902, pp. 848-852 ; 2 Moore’s Int. Arb., 1865-1899, as cited in б Moore’s Dig. Int. Law, 728.)

Again, in the leading case known as El Triunfo Case, the arbitrators held the existence of the clause no bar to the claim. (U. S. Foreign Rel., 1902, pp. 838-880, especially pp. 839-871; 6 Moore’s Dig. Int. Law, 732.)

¹⁹ 6 Moore’s Dig. Int. Law, 293.

²⁰ 6 Moore’s Dig. Int. Lawr, 300.

²¹ Int. law, 5th ed., 279.

²² Dr. James Brown Scott in Venezuelan papers sent to Senate, U. S., 1908.

²³ Haggart v. Morgan, 5 N. Y. 422, 55 Am. Dec. 350; Delaware & Hudson Canal Co. v. Pa. Coal Co., 50 N. Y. 250, 258; National Contracting Co. v. Hudson River Water Power Co., 170 N. Y. 439, 442; Hamilton v. Liverpool, etc., Ins. Co., 136 U. S. 254, 34 L. Ed. 419.

²⁴ Delaware & Hudson Canal Co. v. Pa. Coal Co., 50 N. Y. 250, 258.

²⁵ Hershey on the Calvo and Drago Doctrines, 1 Am. Journal of Int. Law, 31.

²⁶ Ibid.

²⁷ 1 Scott Hague Conferences, 399.

²⁸ Ibid, 400.

²⁹ Ibid, 400.

³⁰ Ibid, 412.

³¹ Ibid, 412.

³² Ibid, 413.

³³ 1 Scott Hague Conferences, 415.

³⁴ Ibid, 415.

³⁵ 2 Scott Hague Conferences, 357; 1 ibid, 415.

³⁶ 1 Scott Hague Conferences, 416-417; 2 Scott Hague Conferences, 532, 534.

³⁷ 1 ibid, 417.

³⁸ Scott’s Hague Conferences, 415.

³⁹ Up to date this Convention, which was subject to ratification by the several governments, has been ratified by only the United States of America (2 Scott’s Hague Conferences, 361). It stands, however, as the formal expression of opinion of ar congress of eminent jurists as to what the principle of international law should be.