of his claim to a person of another nationality or by his abjuring his allegiance, such a claim would be deemed to lose its American nationality and the government its right and interest in pressing for settlement. On the other hand, when the individual in whose person the state is injured occupies a public position, such as consul, ambassador or sailor on a public vessel, the national wrong becomes greater and the private wrong (and the resulting right to redress) apparently less. The national injury will survive any assignment or transfer of the private claim to alien ownership. The individual's right to indemnity can hardly be considered as a claim against a foreign country but rather as a request upon his own government for its humane consideration of his sufferings. In such cases, notwithstanding the fact that awards and allowances have been made on numerous occasions to individual consuls or sailors 1 in whose persons an affront to the nation had been committed, and the fact that the government frequently demands pecuniary reparation for the injuries sustained by such public servants, it is not believed conformable to the public interest that the government in negotiating for the settlement of a national political grievance should be embarrassed by private claims of its citizens growing out of the subject of controversy.2 While the private injuries may constitute an element in the measure of damages, it is not the principal item of damage, and any sum paid to the individual as a result of a diplomatic settlement may be regarded as a pure gratuity.

Another example of (attempted) merger of the private and public interest in an international claim was exposed in the claim of the seamen of the U. S. S. Maine against the United States (as the assignee of

1 Helmsman on U. S. S. Water Witch (U. S.) v. Paraguay, 1855, 1859, Moore's Arb. 1486, 1494; U. S. v. Japan, 1863, part of indemnity being paid to seamen on the Wyoming, treaty of Oct. 22, 1864, Malloy's Treaties, I, 1011; U. S. v. Chile, sailors of U.S. S. Baltimore assaulted in Valparaiso, For. Rel., 1892, 57 et seq.; France v. U. S., killing of French seamen in Toulon Harbor, May 1, 1834, Act of June 28, 1834, 4 Stat. L. 701; Great Britain v. Japan, killing of British sailors at Yedo in 1862, Dipl. Cor., 1863, II, 989; France v. Japan, 1868, killing of seamen of frigate Venus and corvette Dupleix, Dipl. Cor., 1868, I, 698; Assault upon sailors of U. S. S. Columbia and Buffalo in Panama, 1906 and 1908; settled by indemnity, For. Rel., 1909, 479, 491.

2 Private citizens may by the bounty of Congress receive the benefits of an indemnity paid for a national grievance, e. g., the Alabama claims, and the Acts of Congress of 1874 and 1882.

Spain) before the Spanish Treaty Claims Commission, arising out of the injuries sustained by the seamen when that vessel was blown up, under an allegation of responsibility of Spain, in the harbor of Havana in 1898. The claim was dismissed by the Commission on the ground that individual claims do not arise in favor of the officers and seamen of a ship of war who receive, in the line of duty, injuries to their persons for which a foreign government is responsible; and that the claim being wholly national, all injuries to officers and seamen are merged in the national injury, their only relief being the gratuitous bounty of their own government.1 This decision places these claims in the same class as the cases discussed in the preceding paragraph. A better reasoned ground of decision is contained in the concurring opinion of Commissioner Maury who took the position that the treaty of peace itself put an end to and extinguished all causes of difference between the belligerents.2

§ 142. National Claims which Survive Private Settlement.

From the foregoing discussion of the relation between the private and the public injury it may be concluded that there are two classes of injuries to the state: first, those which directly affect the state, being inflicted either upon the sovereign himself or his representatives, or upon the flag, public vessels or public property of the nation, out of which injuries no private claim can arise, and secondly, those which indirectly affect the state, being inflicted upon its citizens.

This second class of claims, in which our interest is specially engaged, may be subdivided into two categories. In the first category are wrongs which always injure the sovereign, because by the act complained of the citizen has been rendered unable to perform his duties toward the state, e. g., his duties of loyalty, the performance of military service, or the payment of taxes. If the citizen is restored to his rights or former condition, thus enabling him to perform his duties as before, the state is no longer injured. But if not restored to his rights, e. g., if he is killed or badly wounded, disabling him from the performance of his obliga

1 McCann v. U. S., No. 30, Opinion of the Commission delivered March 6, 1902, Opinion by the President of the Commission.

2 Concurring opinion of Mr. Commissioner Maury, p. 4.

tions to his country, the independent right of the state to demand compensation survives any denationalization of the individual's claim by assignment or transfer by operation of law. In the second category of cases the injury to the citizen may or may not result in an actionable injury to the state, depending upon

(a) whether or not the citizen may be put in statu quo by the authorities of the state of residence, and

(b) whether or not the particular acts complained of are so flagrant as obviously to be intended as an affront to the state.

If the citizen is placed in statu quo, no affront to the state having been involved, the injury to the state is not such as will survive restitution or compensation to the citizen. This class of acts includes personal indignities toward citizens who are not officials of the government, and injuries to the property rights of citizens.

PROTECTION DISCRETIONARY WITH THE EXECUTIVE

§ 143. Discretion Uncontrollable by Courts.

As already indicated, the Executive, in the person of the Secretary of State, has a practically unlimited discretion in determining whether protection should be extended or a claim presented to a foreign government in a given case. The only possible limitation upon the free exercise of the Secretary's judgment arises out of the courtesy due to the will of Congress, expressed occasionally in the form of a joint resolution requesting the President to call the attention of a foreign government to an injustice committed against an American citizen or empowering him to take effective measures to obtain redress from a foreign state on behalf of an injured citizen.' The courts and the Attorney General have recognized that the Secretary of State must

1 Such resolutions in the cases of Helen M. Fiedler and of A. Bolten and G. Richelieu are printed in S. Doc. 231, 56th Cong., 2nd sess. (compilation of reports of committees on foreign relations), pp. 325 and 327. The recommended resolutions in these cases do not appear to have been passed. See also resolution approved June 2, 1858 (11 Stat. L. 370) authorizing use of necessary force in the case of the Water Witch v. Paraguay; Joint resolution 28 of June 19, 1890 (26 Stat. L. 674) in Venezuelan Steam Tr. Co. claim, Moore's Dig. VII, 112; J. Res. 30, Mar. 2, 1895 (28 Stat. L. 975) in Mora claim v. Spain, For. Rel., 1895, II, 1160, 1163. See also memorandum by the Solicitor of the Dept. of State, "Right to protect citizens in foreign countries by landing forces," Washington, August, 1912, Revised ed., pp. 37-38.

decide, according to his own discretion, whether he will press the claim of an American citizen upon a foreign government.' As in the case of all extraordinary legal remedies, the employment of the remedy of diplomatic protection is within the discretion of the granting authority. The courts, moreover, have disclaimed any power, by mandamus or otherwise, to compel the Secretary of State to present and urge a claim of a citizen of this country against a foreign government, taking the ground that such a function is political in its nature and within the province of the Executive.2 The writ of mandamus, indeed, cannot issue to direct or control the head of an executive department in the discharge of an executive duty, involving the exercise of judgment and discretion.3

That the exercise of the protective function from its very inception is discretionary is evidenced by the fact that the Secretary of State is empowered by Congress to refuse, in his discretion, to issue a passport. Thus the Secretary might decline to issue a passport to an American citizen who intends to accomplish a criminal purpose or to use it in the protection of an illegitimate enterprise.5 Diplomatic protection or the support of a claim may in any case be denied as a matter of public policy."

The exercise of the Secretary's discretion is most frequently illustrated in the presentation and pressure of foreign claims and the negotiations incidental thereto. He may, for example, refuse to present a claim at all. In pursuance of his right to investigate the merits of a claim and the claimant's title to protection, he may and has often 1 U. S. v. La Abra Silver Mining Co., 29 Ct. Cl. 432; Atty. Gen. Black in 9 Op. 338 (Perkins' claim v. Russia); Moore's Dig. VI, 695.

2 U. S. ex rel. Holzendorf v. Hay (1902), 20 D. C. App. 576, 578.

3 U. S. ex rel. Boynton v. Blaine, 139 U. S. 306 (in connection with distribution of award), and Marbury v. Madison (1803), 1 Cranch, 137, 166; Brown v. Root, 18 D. C. App. 239, 242. See also W. W. Lucas in Juridical Review, October, 1912, 185 et seq., Poujade v. l'Etat (France), Sirey, 1906, 3, 158, and Laferrière, Traité de juridiction administrative, Paris, 1896, II, 48.

R. S., § 4075. Infra, p. 508.

5 For. Rel., 1907, II, 1079 et seq. Infra, p. 495.

6 Moore's Dig. VI, § 974. See also Mr. Seward, Sec'y of State, to Mr. Otterbourg, Aug. 8, 1867, Dipl. Cor., 1867, II, 445.

7 Mr. Bayard, Sec'y of State, to the President, Jan. 20, 1887, For. Rel., 1887, 607 (Pelletier case). See alsc Moore's Dig. VI, § 973.

declined to present speculative, exorbitant or fraudulent claims, claims based upon acts against public policy or the laws of the United States or international law, or claims in which the claimant is considered guilty of censurable conduct or otherwise not entitled to diplomatic assistance.1

The discretionary power of the Executive in the presentation of diplomatic claims, and in respect of the time, extent and means of pressure enables the Department of State to exercise the fullest control over claims, a power to be examined in detail presently. For example, it is not the practice of the Department to present claims arising out of the arrest and detention for military service of naturalized American citizens who return to their native country.2 Contract claims are under ordinary circumstances not presented diplomatically, although the use of the unofficial good offices of the American diplomatic representative is usually authorized.3 Palmerston and other British secretaries of State for Foreign Affairs have considered the enforcement of claims arising out of unpaid national bonds of foreign states a matter of governmental discretion. Claims arising out of certain torts, of an especially flagrant and serious nature, such as murder, mob violence, etc., are usually pressed at once by the United States and other governments, without requiring the exhaustion of local remedies. The Department, moreover, has the right to prosecute a claim against a foreign government either in its original form, to modify it, or to effect a compromise without the permission of the claimant, and without rendering itself responsible to the claimant by reason of the exercise of such discretionary powers. In the protection of the citizen, the government's authority and powers are plenary. The citizen is bound by its action, and must accept the measure of protection which the Executive officials in the exercise of their sound discretion deem it proper to afford.

1 Infra, Part IV, ch. III, § 337 et seq.

5

2 Mr. Adee, Acting Sec'y of State, to Mr. Harris, Sept. 20, 1899, For. Rel., 1899, 75.

3 Supra, § 113. In De Witt (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3466, Thornton, Umpire, considered that he had the same discretionary right to entertain a contractual claim as was possessed by the claimant government.

4

Supra, p. 314.

E. g., Lienchou riots in China, 1904; Grenada massacre of Oct. 13, 1856; Fretz (U. S.) v. Colombia, Mar. 8, 1886, Moore's Arb. 2560 (Panama riot of April 15, 1856).