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question what kinds or circumstances of fraud would justify courts in allowing the judgments of competent tribunals to be impeached by the party against whom they had been rendered. Treating of the judgments of established courts of exclusive jurisdiction, Chief-Justice Shaw, of Massachusetts, one of the greatest judicial magistrates this country has produced, laid down the doctrine respecting fraud in the following clear and forcible language:

"The maxim that fraud vitiates every proceeding must be taken, like other general maxims, to apply to cases where proof of fraud is admissible. But where the same matter has been actually tried, or was so in issue that it might have been tried, it is not again admissible; the party is estopped to set up such fraud, because the judgment is the highest evidence, and cannot be contradicted." (2 Gray, 351.)

Citing this doctrine with entire approbation the Supreme Court of the United States, speaking through Mr. Justice Miller, in the case of the United States vs. Throckmorton, laid down the law in the very same way, and with still greater amplitude of illustration.* The opinion of Justice Miller, concurred in by all the judges, enumerated every ground on which a final decision of a competent tribunal of exclusive jurisdiction can be allowed to be subsequently called in question, and distinctly excluded from those grounds all consideration of such alleged frauds as those which have been brought forward to defeat these two awards.

The learned Justice said:

"The mischief of retrying every case in which the judgment or decree rendered on false testimony, given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterwards ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing jus. tice in individual cases. There are no maxims of the law more firmly established, or of more value in the administration of justice, than the two

*98 U. S. R. 61.

which are designed to prevent repeated litigation between the same parties in regard to the same subject of controversy, namely, Interest reipublicæ, ut sit finis litium, and Nemo debet bis vexari pro una et eadem causa.

The most eminent text-writers on international law affirm the same principles in relation to the decisions of international tribunals. It is only necessary to quote from Vattel and Twiss. Vattel observes:

"If then their sentence be confined within these bounds [the question submitted] the disputants must acquiesce in it. They cannot say that it is manifestly unjust, since it is pronounced on a question which they have themselves rendered doubtful by the discordance of their claims, and which has been referred, as such, to the decision of the arbitrators. Before they can proceed to evade such a sentence they should prove by incontestable facts that it was the offspring of corruption or flagrant partiality."

Professor Twiss says:

"When nations have agreed to refer any question in dispute between them to arbitrators, their good faith is pledged to abide by the decision of the arbitrators, unless the decision should involve clear departure from the terms of the reference, or should be in conflict with the rules of justice, and, therefore incapable of being the subject of a valid international compact, or should be the manifest result of fraud and collusion with one of the parties."

Our own text-writer, Halleck, expresses the same rule in the following terms:

"If the contending parties have agreed to abide by the decision of the referees, they are bound to do so, except in cases where the award is obtained by collusion, or is not confined within the terms of the submission."

Corruption, then, on the part of the tribunal itself or its collusion with one of the parties, or its gross partiality, or its assumption of jurisdiction beyond the terms of the submission, will alone justify any reopening of a judgment rendered by a court of exclusive jurisdiction, or a decision of an arbitrator, whether private or international. The chief reason why a supposed fraud on the part of the successful party, or perjury subsequently charged upon his witnesses, cannot be considered, is that to allow it would open the door and furnish the temptation for the manufacture of subsequent proofs. Every one who has had much experience in litigations, knows that almost universally the losing party complains that his adversary's witnesses have committed perjury. Give him an opportunity to prove their perjury after he has had his day in court and after the verdict, and you create an enormous temptation to get rid of the verdict by fraudulent pretense of a fraud. Private individuals, however, have much less power than governments to get up such pretended frauds, and therefore the rule that excludes such attempts should be most strictly applied to governments. All governments, in any matter in which there is much money at stake, are liable to be approached by very unscrupulous persons. A governernment has only to say to a person who professes to know that it has been defrauded, "bring us proof of the fraud and we will reward you handsomely." The higher officials need not concern themselves with the means that will be employed. Any quantity of proofs will be forthcoming, and they will often be curiously and nicely adapted to the requirements of the case. The stimulus of a great contingent compensation will do all that is needed to make a case which can be claimed as amounting to demonstration of the supposed fraud. When to this is added the fact that the government thus obtaining proof of what it charges to have been fraud in procuring an award is not obliged to subject that proof to scrutiny in a court of justice, as an individual would have to do, but may deal with it diplomatically and under the seal of diplomatic secrecy, and a situation is created in which the grossest villainy may be perpetrated, and no one will be responsible.

Finally, there remain to be cited two precedents in the State Department, which Secretary Frelinghuysen must have overlooked, and which entirely negative, for the diplomatic department itself, the possibility of disturbing an award made by an international tribunal of arbitration, for any such cause as that which Mr. Frelinghuysen adopted as the basis of his agreement with Mexico, contained in the convention now pending in the Senate.

Secretary Seward, in a note addressed to the government of Venezuela on the 3d of March, 1869, said:

"International tribunals for the adjudication of private claims are created by governments in no expectation that they are to escape that possible admixture of error which is inseparable from all human institutions. They are resorted to because the governments concerned have either actually experienced or have been forced to anticipate, the impracticability of their coming to an agreement upon the merits of such claims and upon the methods of investigating them. However imperfect the experiment may provė, it is adopted in view of the dread alternative in comparison with which a practical failnre to accomplish exact justice falls into insignificance. First among the great powers to introduce this beneficent mode of achieving the peaceful termination of international controversies, it is not for the United States to do or suffer aught that can impair its efficiency. The deliberations and judgments of a commissioner would be fruitless, if they only started questions for renewed discussion. They must be final or they must be nothing."

Secretary Evarts, who thought that we had grave reason to complain of the "Halifax award," by which two of the commissioners awarded to Great Britain $5,500,000 in gold, as damages for invasion of her fishery rights, while the American Commissioner found that nothing was due, submitted to the British Government an argument of great force alleging certain objections to this award, one of which was its "extravagance." The Marquis of Salisbury, British Foreign Secretary, in a dispatch dated November 7, 1878, answered Mr. Evarts, that the peace of the world demanded that such adjudications should be final; that the tribunal had fairly heard and considered the whole case, and that the litigants could not dispute the decision. "To argue,” he said, "against the validity of the award solely on the ground that the conclusion arrived at by the arbitrators is erroneous, is in effect the same thing as to dispute the judgment which they have formed on the evidence," Mr. Evarts, on mature and deliberate consideration, yielded the point, and our Minister at London, on the 21st of November, 1878, was instructed to give notice that the award would be paid. This instruction was conveyed in the following language:

"I am instructed by the President to say that such payment is made on the ground that the Government of the United States desires to place the maintenance of good faith and the security and value of arbitrations between nations above all question, in its relations with Her Britannic Majesty's government, as with all other governments,"

With these precedents graven on the records of the State Department, how is it possible to justify the pending convention with Mexico, by which, if it is approved by the Senate, that government will be allowed to have these awards set aside, and to subject the claimants to new trials?

It remains to add one other occurrence to the extraordinary history of these cases. Mr. Frelinghuysen refused to distribute to these two claimants the amount of the sixth installment which had been paid in by Mexico on the 31st of January, 1882. Thereupon the claimants applied for a writ of mandamus to compel the Secretary of State to make this distribution. The Supreme Court of the United States decided that the President had power to make the new convention with Mexico, agreeing to set aside these awards and providing for new trials of the claims, and that the court would not interfere while the convention was pending in the Senate. Of course the court did not say or intimate that the Senate ought to approve of the new convention. The court is no part of the diplomatic or treaty-making power, and the approval of the convention by the Senate is a pure question of high public policy. Chief-Justice Waite was very careful to say that the court expressed no opinion on the merits of the controversy between Mexico and the claimants.

In making the application to the court for the mandamus,

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