lations over State legislation, that the treaty-making power of the United States could control the claims of citizens and make whatever disposition of them was necessary for the peace and welfare of the country, and could also establish claims of the citizens of the other government against citizens of the United States. When, however, it becomes necessary to extinguish the claims of citizens of the United States against foreign governments, the power exists to do so, but the citizen is protected by the Constitution. The Supreme Court has decided that claims of this nature are private property and cannot be taken for public use without just compensation. It would be impossible to give a complete list of all the treaties between the United States and foreign powers in which claims of citizens have been surrendered. Most of them provided for some method of ascertaining the amounts of the claims surrendered, and all of that class will be found in Moore's History of Arbitration® together with the subsequent proceedings based thereon. A number of such treaties will also be found in the TREATIES APPENDIX at the end of this volume. The frequent exercise of this right is evidenced by the fact that up to 1896 the United States had participated in fifty-two arbitrations for the settlement of claims, in nearly every case the claims of citizens of this country being involved. In the next two sections a brief reference will be made to some of the legal points involved in this exercise of power. This right to indemnity exists in its full force and effect as a chose in action, but the right to enforce it is suspended, not because there is no remedy, but because there is no court which has jurisdiction to determine and enforce the claim. This condition of affairs is the natural result of the rule that a sovereign power cannot be sued in its own courts without its consent, and, of course, the courts of other powers would have no jurisdiction either to hear or enforce such claims. In the cases cited in the notes to the next section we shall see that in all cases in

Const. of U. S. art. V of Amendment. See Vol. I, p. 519.

5 Comegys vs. Vasse, U. S. Sup. Ct. 1828, 1 Peters, 193, STORY, J. See extract from opinion and syllabus in note 1 to § 443, p. 286, post.

History of Arbitration, etc., see note 1 this section on p. 283, ante.

7 For this list consult Moore's History of Arbitration; Index thereto and Table of Contents, of vols. I and II.

which the regularly constituted courts of this country have had the opportunity to pass upon these claims they have been confined in their jurisdiction to the disposition of the award, and not to the merits of the controversy as between the claimant and foreign governments or this government as the case may be, except in those cases in which Congress has, by special enactment, created the court specially for the purpose, or has clothed one of the existing courts with jurisdiction for this purpose.

$443. Claims against foreign governments as property rights; Justice Story's opinion in Comegys vs. Vasse.— The Supreme Court of the United States has held that the just claims of American citizens against foreign governments are choses in action, i. e., property rights which are subject to barter and sale, and which, in fact, under a general assignment pass to the assignee. Mr. Justice Story so decided in 1828,1 in a case between an assignor and his assignee thus § 443.

NOTES ON STATUS OF INTERNATIONAL CLAIMS AGAINST FOREIGN GOVERNMENTS.

1 Extracts from opinions in, and syllabuses, of the following cases are here given, as they describe the status of claims of citizens of the United States against foreign governments better than can be done in any condensation of the cases or expressions of opinion by the author.

Comegys vs. Vasse, U. S. Supreme Ct., 1828, 1 Peters, 193, STORY, J. As this is one of the leading cases on the question of claims against another government and on the assignability of awards, it has been frequently cited and followed. The points decided as stated in the syllabus are as follows: (The numbers following the paragraphs indicate the pages of the opinion.)

"The object of the treaty [with Spain, of February 22, 1819] ceding Florida to the United States, was to invest the commissioners with full power and authority to receive, examine, and decide upon the amount and validity of the asserted claims upon Spain, for damages and injuries. Their decision, within the scope of this authority, is conclusive and final, and is not re-examinable. The parties must abide by it, as the decree of a competent tribunal of exclusive jurisdiction. A rejected claim cannot be brought again under review, in any judicial tribunal; an amount once fixed, is a final ascertainment of the damages or injury. This is the obvious purport of the language of the treaty. But it does not necessarily or naturally follow, that this authority, so delegated, includes the authority to adjust all conflicting rights of different citizens to the fund so awarded. The commissioners are to look to the original claim for damages and injuries against Spain itself, and it

directly involving the question of whether such claims were or were not assignable property rights.

is wholly immaterial for this purpose, upon whom it may, in the intermediate time, have devolved; or who was the original legal, as contradistinguished from the equitable owner, provided he was an American citizen. If the claim was to be allowed as against Spain, the present ownership of it, whether in assignees or personal representatives, or bona fide purchasers, was not necessary to be ascertained, in order to exercise their functions in the fullest manner. Nor could they be presumed to possess the means of exercising such a broader jurisdiction, with due justice and effect. They had no authority to compel parties, asserting conflicting interests, to appear and litigate before them, nor to summon witnesses to establish or repel such interests; and under such circumstances it cannot be presumed, that it was the intention of either government to clothe them with an authority so summary and conclusive, with means so little adapted to the attainment of the ends of a substantial justice. The validity and amount of the claim being once ascertained by their award, the fund might well be permitted to pass into the hands of any claimant; and his own rights, as well as those of others, who asserted a title to the fund, be left to the ordinary course of judicial proceedings in the established courts, where redress could be administered according to the nature and extent of the rights or equities of all the parties." (212.)

"In general, it may be affirmed, that mere personal torts, which die with the party, and do not survive to his personal representatives, are not capable of passing by assignment; and that vested rights ad rem and in re, possibilities coupled with an interest, and claims, growing out of, and adhering to property, may pass by assignment." (213.)

"The law gives to the act of abandonment to underwriters when accepted, all the effects which the most accurately drawn assignment would accomplish. The underwriter then stands in the place of the insured, and becomes legally entitled to all that can be recovered from destruction." (214.)

"The right to indemnity for an unjust capture, whether against the captors or the sovereign, whether remediable in his own Courts, or by his own extraordinary interposition and grants upon private petition, or upon public negotiation, is a right attached to the ownership of the property itself, and passes by cession to the use of the ultimate sufferer." (215.)

"It is not universally, though it may ordinarily be one test of the right, that it may be enforced in a Court of Justice. Claims and debts due from a sovereign are not ordinarily capable of being so enforced. Neither the King of Great Britain, nor the government of the United States, is suable in the ordinary Courts of Justice, for debts due by either. Yet, who will doubt that such debts are rights? It does not follow be cause an unjust sentence is irreversible, that the party had lost all right to justice, or all claim, upon principles of public law, to remuneration." (216.)

This decision has been followed in similar cases involving the status of the "Alabama" claims settled by the Geneva

2

[The treaty with Spain] "recognized an existing right in the aggrieved parties to compensation; and did not, in the most remote degree, turn upon the notion of donation or gratuity. It was demanded by our government as matter of right, and as such was granted, by Spain." (217.)

The court decided that the right to compensation from Spain, held under abandonment made to underwriters, and accepted by them, for damages and injuries which were to be satisfied under the treaty, by the United States, passed to the assignees of the bankrupt, who held such rights by the provisions of the bankrupt law of the United States, passed April 4, 1800.

STATUS OF ALABAMA, ETC., CLAIMS.

2 Great Western-Insurance Co. vs. United States, U. S. Sup. Ct. 1884, 112 U. S. 193, MILLER, J. (affirming Ct. Claims, 1884, 19 Ct. Claims, 206, DRAKE, Ch. J.) The basis of this action appears in the synopsis of the case in the Court of Claims.

The Supreme Court held that under section 1066, Revised Statutes, providing that the jurisdiction of the Court of Claims shall not extend to any claim against the Government not pending on December 1, 1862, growing out of, or dependent on, any treaty stipulation entered into with foreign nations or Indian tribes, was comprehensive and explicit, and that, if the cause of action either grew out of treaty stipulations or was dependent thereon, it could not be considered in that court.

The position of the insurance company was that as soon as the United States entered into the treaty of Washington of 1871, and took charge of all of the Alabama claims, that the claim became one against the Government of the United States and not dependent upon the treaty, but the court held that nothing connected with the proceedings changed the fact that the final recognition and payment of the claim grew out of a stipulation of the treaty, and says, on p. 197:

"In any ordinary or usual sense of the words here used, appellant's claim, as set forth in the petition, grows out of the stipulations of the Treaty of Washington. The allegation is, that the United States took charge of the claim of petitioner against Great Britain for the injuries inflicted by the Alabama and the Florida. That, by a treaty on that subject, Great Britain stipulated that she would pay this claim to the United States, as petitioner alleges, for the use of said petitioner. In accordance with said stipulation, Great Britain did pay it to the United States, and the purpose of payment under the treaty inhering in the receipt of the money constitutes the foundation of appellant's claim. The intervention of the Board of Arbitration and its award as a means of ascertaining the liability of Great Britain, does not change the fact that the final recognition and payment of the claim grows out of the stipulation of the treaty.

"In a still clearer sense it is obvious that this recognition of the claim

Tribunal which was constituted under the Treaty of Washington (1871) with Great Britain and which awarded to the

by the award and its payment to the United States, were dependent on the treaty stipulation. Without the treaty the award would have bound nobody, and would have been at most a friendly recommendation. By virtue of the treaty it became a most solemn and important international obligation, whereby Great Britain became bound, as much as a nation can be bound, to pay the amount of the award, and, at the same time, became freed and discharged from any further liability on account of any claims of that class.

"The effort of counsel to ignore the treaty, the award and the receipt of the money by the United States as the foundation of appellant's claim, and rest the right to recover solely upon the act of March 31, 1877, by which the fund was changed from an investment in government bonds and paid into the government treasury, is too fanciful for serious consideration. If the government had not become liable, by reason of the original receipt of the money from Great Britain, under the treaty by which that country was discharged and released from the claim of plaintiff, it is difficult to comprehend how it became liable by a mere change in the manner of keeping the account. Whether the United States was liable on the bonds held in its own treasury vaults, or on account of the actual money represented by those bonds in the same vaults, cannot be material in estimating the nature and extent of that obligation.

"Nor can we assent to the proposition that the section cited was designed to prevent foreign governments or Indian tribes from suing the United States to enforce rights founded on treaties. No such suit has ever been brought, either before or since the enactment of this provision. It is not believed that without it any one ever supposed that the Court of Claims had jurisdiction of suits by Indian tribes or foreign nations against the United States. It could not have been passed, therefore, to prevent such a suit."

The Court distinguished the Atocha case, 17 Wallace, 439, as a special act of Congress authorizing the Court of Claims to consider that case; in the present instance there was a commission specially appointed aud in existence, and therefore the Court of Claims had no jurisdiction.

United States vs. Weld, U. S. Sup. Ct., 1883, 127 U. S. 51, LAMAR, J. This case involved the rights under various acts of congress relating to the distribution of the fund remaining out of the Alabama award after the direct claims would be paid. The question was whether or not the Court of Claims had jurisdiction. The points decided as to jurisdiction are stated in the syllabus as follows:

"In order to make a claim against the United States one arising out of a treaty within the meaning of Rev. Stat. sec. 1066, excluding it from the jurisdiction of the Court of Claims, the right itself, which the petition makes to be the foundation of the claim, must derive its life and existence from some treaty stipulation.

"A claim against the United States made under the provisions of the