Obrázky stránek
PDF
ePub

passing of the act, recourse must still be had to the state of the law as it existed before the passing of the act, for the purpose of determining the class of cases in which the remedy exists.

A few years since a very able treatise on the subject, in the form of a letter addressed to Chief-Justice Bovill, was compiled by the present Mr. Justice Archibald. It was printed for private circulation, but it is to be found in most law libraries. It contains the most valuable information, within a narrow compass, to be found upon the subject, and has references to all the older leading authorities, among which we may mention Ryley's Placita Parliamentaria; Stamford's Prerogative, title Petition; The Bankers Case, 14 Howard's State Trials, with Lord Lomer's celebrated judgment; Skinner's Reports, page 613, containing Lord Holt's judgment in the Bankers Case ; Manning's Practice in the Exchequer, vol. 1, pages 84-88. As regards this latter authority, it should be stated that the soundness of the views expressed in it has been questioned in several recent cases.

Among the more important of the recent decisions upon the subject of the petition of right, we may refer to Viscount Canterbury vs. Attorney-General, 1 Phil., 306; Re Carl Von Frantzius, 2 De Gex & Jones, 126; the case of Baron de Bode, 8 Q. B., 271; Tobin vs. The Queen, 16 C. B., (N. S.,) 353; Feather vs. The Queen, 6 Best & Smith, 294; Church ward vs. The Queen, 1 L. R., (Q. B.,) 173.

We think, however, right to add that in some respects the law upon the subject of claims against the Crown must be considered as still unsettled, inasmuch as a case (Thomas vs. The Queen) was argued, at considerable length, before the Court of Queen's Bench, in the month of June last, in which a variety of questions of great importance were raised, and, among others, whether a petition of right would lie for breach of contract or to recover money claimed by way of debt or damages, or, indeed, for any other object than specific chattels or land. The court reserved its judgment, which has not yet been delivered. Whatever may be the ultimate decision of the Court of Queen's Bench in this case, it is to be hoped that a clear exposition of the present state of the law will be obtained. x

As regards the inquiries of the United States minister which have reference to the "status of aliens," we may state, in general terms, that an alien, whether resident or not in this country, may sue and be sued before the ordinary tribunals, and will be bound by, and have the benefit of, the same forms of procedure and rules of evidence as a native; but an alien enemy cannot, during the continuance of war, unless under license from the Crown, bring an action or continue an action commenced before the war began.

As regards the inquiries which have reference to the course adopted by the various departments of the executive government with respect to claims made upon or against them, we are not in a position to afford any information or to express any opinion.

SEPTEMBER 26, 1874.

(Inclosure No. 4 in No. 624.]

General Schenck to Lord Derby.

LEGATION OF THE UNITED STATES,

London, October 16, 1874. MY LORD: I have the honor to acknowledge the receipt of your lordship's note of the 8th instant, inclosing for my information, in reply to my letter to you of the 19th of August, a legal opinion from the home department on the course pursued by Her Majesty's government in regard to claims prosecuted against it by its own subjects or by aliens, and I have much pleasure in expressing to your lordship, and through you to Her Majesty's home department, my thanks for the opinions in question. I am, with the highest consideration, my lord, your lordship’s most obedient servant,

ROBT. C. SCHENCK. The Right Honorable the EARL OF DERBY, 8c.

DEPARTMENT OF STATE,

Washington, December 23, 1874. SIR : Referring to previous correspondence, I have the honor to inclose herewith, for your further information, a copy of a dispatch of the H. Rep. 134-13

? Rep. Q. 8 rol.x, 31.

29th of October last, No. 90, and of its accompaniment, from Mr. Lewis, the minister of the United States to Portugal, relative to the presentation of claims against that government. I have the honor to be, sir, your obedient servant,

HAMILTON FISH. Hon. WM. LAWRENCE, Chairman of the Committee on Iar-Claims,

House of Representatives.

[Inclosure.]

Mr. Lewis to Mr. Fish, October 29, 1874, No. 90, with an accompaniment.

Mr. Lewis to Jlr. Fish.

No. 90.]

LEGATION OF THE UNITED STATES,

Lisbon, October 29, 1874. (Received December 4.) SIR: I herewith have the honor to inclose the several replies to the 66 schedule of inquiries,” inclosed in circular dated June 20, from the Department of State, relative to the course pursued by the government of Portugal in the adjustment of claims against that government, and the mode of procedure adopted in the investigation aud determination of such claims. I have the honor to be, sir, your obedient servant,

CH. H. LEWIS. Hon. HAMILTON FISH,

Secretary of State, Washington.

[Inclosure.]

1. Replies to schedule of inquiries.

(Inclosure No. 1 with dispatch No. 90.)

Answers to "schedule of inquiriescontained in circular (June 23) from Department of State.

1. The claim is investigated by the government, and if considered valid, they may pay it, provided it may be included under any of the appropriations; otherwise it is necessary for the government to propose a bill to the Cortes asking an appropriation.

2. A bill proposed by the government to pay a claim is referred to the usual committees of the two houses, and follows the same course as any other neasure. The Cortes may ask for the necessary evidence from the executive branch of the government, but there is no special law regulating the means for obtaining such information.

3. The case is investigated by the "procurador geral," (attorney-general.) There is no special mode of procedure designated by law. The usual means for obtaining evidence are employed. There are no privileges enjoyed by subjects over foreigners in this respect; either may on equal terms sue the government in the courts.

5. Foreigners have the same rights as subjects. They may maintain whatever action against a subject, and resident and non-resident aliens have same privileges in this respect.

6. There are neither classes nor distinctions in the systems of adjudication. The government has no privileges in questions of proof.

7. The government in a case with an individual has no privileges. The appropriation by the Cortes is always necessary when the amount to be paid is not included in the annual and regular appropriations.

DEPARTMENT OF STATE,

Washington, January 2, 1875. SIR: Referring to previous correspondence, I have the honor to inclose herewith, for your further information, a copy of a dispatch of the 12th of November last, No. 28, from Mr. Osborn, mivister resident of the United States to the Argentine Republic, relative to the presentation of claims against that government. I have the honor to be, sir, your obedient servant,

HAMILTON FISH. Hon. WILLIAM LAWRENCE, Chairman of the Committee on War.Claims,

House of Representatives.

[Inclosure.]

Mr. Osborn to Mr. Fish, November 12, 1874, No. 28.

UNITED STATES LEGATION,

Buenos Ayres, November 12, 1874. Sir: In my dispatch No. 9, dated September 10, I had the honor to acknowledge the receipt of dispatch from the Department of State, dated June 23, 1874, with schedule of inquiries inclosed, relative to information in regard to the course pursued by the government of the Argentine Republic in relation to the adjustment of claims against the government, and the mode of procedure adopted in the investigation and determination of such claims.

I now have the honor to reply that, on account of the breaking out of the rebellion in this country, and the consequent excitement here, I have been delayed in my investigation, and it has not been perhaps as thorough and complete as it might have been under other circumstances.

In my examination I found that previous to the last administration (President Sarmiento's) there was no settled mode of procedure in the presentation and adjustment of claims, but their rejection or acceptance seemed to depend upon favor and influence.

Dr. Tejidore accepting the position of minister of foreign affairs, some three years ago, under President Sarmiento, adopted at once, and for the first time in the history of this country, American precedents, refusing to foreigners all indemnity in cases of revolt or rebellion, other than that granted by the law of nations, and referring them to the courts, under the constitution, rejecting the intervention of ministers, but recognizing the claim to be just in the initiative, when based upon alleged injustice of the courts.

The course pursued by the government in the adjustment and final determination of claims, when based upon the alleged injustice of the courts, and presented to the executive, will be answered in my reply to the inquiries presented from 1 to 7 inclusive.

Schedule of inquiries and answers. Question 1. "Are claims against the government investigated, determined, and, if allowed, then payment directed and provided for by the legislative branch of the government?"

Answer. Every claim is presented to the executive and proper department, according to its nature. It must be substantiated by the report of that department which may be acquainted with its antecedents, and with the opinion of the attorney of the treasury or the attorney-general of the nation.

The executive can also ask for all the data, reports, or testimony that may be considered necessary to establish the truth of the alleged facts. In this respect there is no law whatever establishing a fixed form of procedure. If the executive finds the claim admissible, and there exists in the general budget of the administration or in special laws authority to make payments of the nature of the claim, he then orders its payment by the finance department, charging it to the budget or the special law, as the case may require.

If there should be no authority in law to make such payments, then the case is passed to Congress, accompanied with a bill to vote the necessary funds to meet the payment.

Congress studies the claim anew, and if found admissible, accepts the bill submitted by the executive. If the executive finds the claim inadmissible, he rejects it.

In this latter case the interested party sometimes presents himself direct to Congress, complaining of the decision of the executive, and asking that by a special law the payment be ordered for the amount claimed.

Congress has admitted this kind of claims, and has acted on them, deciding, after due examination, in favor or against them. During the last administration the executive rejected this custom, upon the ground that, in administrative affairs, as he considered these claims, Congress cannot assume the power of a chamber of appeal from the resolutions of the executive, and that the se questions ought to be finally closed with the decision of the executive, unless he should allow the party interested to carry the case before the national Congress. Upon this controversy no definitive jurisprudence is as yet established.

Question 2. “If the legislative authority does entertain such claims, what is the inode of procedure, by the committee or otherwise; and what means, if any, are provided for procuring evidence on behalf of the government ? ”

Answer. Even though the claim has been passed by the executive, asking funds to meet its payment, or even presented direct to Congress by the interested party, the chambers to which the claim has been sent refers it to one of the committees, according to its nature.

The committees of the chambers are six, denominated, on “Constitutional Affairs,”? on “Legislation," on Finance," on the “ Budget,” “ Military," and on Petitions." They are composed of five members in the Chambers of Deputies, and three in the Chamber of Senators.

The claim being passed to the competent committee, it can obtain all the particulars, and make all the investigations that may be considered necessary, without any limitation whatever, or without any certain form of proceeding to establish the truth of the facts.

When this committee requires information, details, or antecedents of any other authority, or dependency of another department, it then demands authorization of the chambers, which, once granted, it asks for such detailed information or antecedents through the president of the respective chambers.

After the case has been only considered, the committee presents to the chamber, in the form of a project of law or bill', its decision, accepting, rejecting, or modifying the claim.

Afterward, both chambers observe the forms of procedure established in the constitution, for the framing and sanction of laws, until the affair is definitely ended.

Question 3. “What provision, if any, is made for the examination and determination of claims by the executive department? What is the mode of procedure in the investigation of claims by or before executive officers; and what means are provided for procuring evidence on behalf of the government ?

Answer. The principal part is already found in the reply to the first question.

There is no fixed form of procedure determined by law in contentious administrative affairs, as these claims generally are.

The established procedure is the one I have indicated in answering the first question. It can be, and has been, varied in certain cases.

There have been cases in which claims have been submitted to the decision of arbitrators appointed by the party and the executive.

There is also a certain kind of claims that are governed by special laws, in which regular forms of proceedings have been established. At the conclusion of this report I will speak of these laws.

The means of proof in favor of the government, as well as in favor of the party interested, have no limitation or special form; all the means of legal proof are admitted on the basis of good faith.

Question 4. “Is there any provision of law allowing a citizen or subject to sue the government in the regularly-established courts, or in any special tribunal, and the privilege of maintaining an action against the Government (if it exists) extends to aliens.

Answer. The federal supreme court has declared that the executive cannot be sued To establish an action against him it is necessary, first, that he should previously. permit it by a special resolution in each case. This permission has been granted by both branches of the government, executive and legislative; by a simple resolution when granted by the executive, or by a formal law when given by the legislative power.

This is the jurisprudence established in order to prevent all arbitrary proceedings, which might ensue should Congress refuse such application. A bill has been presented to Congress to create a tribunal of claims, and to determine the proceedings which should be followed before it.

Although this is only a project as yet, there is no doubt that it will be converted into law, with more or less modifications. Public opinion is already settled in its favor.

Foreigners may bring suit in all respects as the citizens. See the following question for the explanation of this assertion.

Question 5. “What is the status of aliens before the regularly-established courts of the country? Can they maintain an action in such courts against a citizen or subject; and, if so, does the privilege extend to all aliens, or is it confined to resident aliens

only ?"

Answer. The statute on aliens is fixed by the following article of the constitution :

“ART. 20. Aliens enjoy in the territory of the republic all the civil rights that citizens do. They can follow their occupation or profession, possess, buy, or sell real estate, navigate the rivers and coasts, exercise freely their religion, testate and marry according to its laws. They are not obliged to become citizens, or pay extraordinary or forced contributions."

From these primordial rights given by the constitution to foreigners spring all the rights that are correlative to them, and, among others, the right of suing or being sued by any individual, native or foreign, before the courts or the government, in the cases and conditions before mentioned, or in any civil or criminal suit that originates from the exercise of the rights above mentioned, or for the violations of said rights. Furtherinore, wben a question arises between a foreigner and a native, they are not obliged to submit to the local tribunals, but either of them can oblige the other to appear before the federal tribunals of the nation. This right does not exist when the question is between two foreigners or two natives, in which case they are obliged to submit to the decision of the province in which they reside.

The resident foreigner and the temporary sojourner have equal rights in law. The only difference, therefore, between a citizen and an alien in the republic is, that the latter cannot be an elector for members of any of the three highest positions in the nation, nor can he, on the other hand, be obliged to perform military service, or pay extraordinary obligatory contributions.

The foreigner can nevertheless, in some provinces of the republic, be elector and elected for municipal posts, without incurring any obligation in consequence. The alien who resides two years in the republic can obtain citizenship, or sooner, if he has rendered important services to the country. The certificate of citizenship permits him to exercise the political rights of the native-born without being obliged to give military services, and it can only be issued by the supreme federal court.

From the above it can be affirmed, without exaggeration, that in no other country of the world has the foreigner fuller privileges than in the Argentine Republic.

Question 6. “If different systems of adjudication exist, as regards different classes of claims, what is the system with reference to each class; and what the mode of procedure, and the privilege of the Government in relation to evidence in its behalf, and the means of procuring such evidence ?"

Answer. The only laws that establish formalities for certain claims, and special forms of payments, are those to which I referred in answering the first question, and which I now proceed to give in detail.

The damages suffered by individuals during the civil wars, the assistance given to the armies which fought against the tyranny of Rosas, that ended in 1852, and the debt which was left unpaid by the old government of the confederation, which ceased the year 1860 by the incorporation of the province of Buenos Ayres, have beeu recognized by laws of Congress as public debts of the nation, and ordered to be paid in public funds, at 6 per cent. interest and 1 per cent. annual amortization.

Those laws have fixed the forms of procedure that are to be followed in prosecuting private claims.

All of them decide that the executive shall appoint an especial commission to examine the claims.

This commission, after the proper study of the case, for which it had full powers for taking all the evidence it may judge necessary, passes the claim to the executive, with the draught of the resolution prescribed by its judgment.

In view of it, the executive, according to the case, acknowledges the debt, and orders the corresponding payment in public funds, or rejects the claim.

In the law upon assistance rendered to the armies that fought against the tyranny of Rosas, it has ordered that the written documents originally given by the chiefs of

« PředchozíPokračovat »