department of the government concerning the international responsibility of foreign states, or to consider as necessarily valid claims those which the claimant government had officially espoused and pressed.1 As in private law, an offer of settlement or compromise made in diplomatic negotiations could hardly be construed by an international tribunal as an admission of the justice of the claim or of international liability.2 Nor does an offer to accept a reduced sum bind an arbitral tribunal to limit its award to that amount.3

§ 145. No Obligation to Consult Claimant.

4

While it frequently happens that during the course of a diplomatic adjustment of a claim the Department of State consults the claimant in the various stages of the negotiations and usually endeavors to arrange a settlement satisfactory to the claimant, there is no legal obligation of any kind to secure the claimant's sanction or assent to any steps undertaken.5 Indeed, as already observed, disposition may be made of the claim as expediency dictates, without his assent or even against his protest.

The government may prosecute a claim arising out of an injury to a citizen notwithstanding the fact that the citizen declines to make

1 Opinion of Spanish Treaty Cl. Com., Special Rep. of W. E. Fuller, 24; Hooper v. U. S., Act of Jan. 20, 1885, 22 Ct. Cl. 408.

2 Constancia, Good Return and Medea (U. S.) v. Colombia, Feb. 10, 1864 (Bruce, Umpire), Moore's Arb. 2742. In this case, it was held that the mere presentation of a claim by a diplomatic agent is not binding on his government, ibid. 2742. Nor is his assurance that a claim against the U. S. would be paid. Meade v. U. S., 9 Wall. 691.

3 The Canada (U. S.) v. Brazil, Mar. 14, 1870, Moore's Arb. 1733, 1745; La Fontaine, 133.

Mr. Olney, Sec'y of State, to Mr. McKenzie, Apr. 24, 1896, For. Rel., 1896, 492 (Claim of Hydrographic Commission of the Amazon v. Peru); Claim of White v. Mexico, Mr. Ryan to Mr. Blaine, May 20, 1890, For. Rel., 1890, 635. The protocol of arbitration may occasionally show that the claimant has consented to the arbitration. May (U. S.) v. Guatemala, Feb. 23, 1900, For. Rel., 1900, 657; Malloy's Treaties, I, 871-872.

Mr. Olney, Sec'y of State, to the Attorney-General, Oct. 7, 1895, Moore's Dig. VI, 1021.

Supra, p. 366. Brief of Solicitor for U. S. in case of Samuel C. Reid et al. (Brig General Armstrong) v. U. S., before Court of Claims, Sen. Misc. Doc. 140, 35th Cong., 1st sess., 38-40. Opinion of Judge Blackford, ibid. 111-113.

any complaint or renounces his right to an indemnity. Nevertheless, unless the offense is particularly flagrant or may be deemed a national affront, the individual's waiver of a right to indemnity weakens the moral, if not the legal, right of his government to demand reparation, and the government may well consider itself justified in desisting from pressing a claim waived by the individual who actually sustained injury.3 Arbitral tribunals have regarded a private waiver of a claim as a bar to an international reclamation.

5

It will be seen hereafter that the individual cannot renounce or contract away the right of his government to intervene in his behalf. While he may renounce a personal right or privilege, he does not represent the government and therefore is incompetent to renounce a right, duty, or privilege of the government. The principle may be supported on the theory that the wrongful act is a tort and crime combined, each giving rise to an independent right of action.

§ 146. Power to Determine Opportunity for Pressing Claim.

Not only can the government in its discretion estimate the damage sustained by its citizen and determine upon the proper amount and items for which an international claim may justly be prosecuted, but it may decide for itself upon the appropriate time for advancing the claim. Conditions of various kinds have arisen from time to time which have led the Department of State merely to place on file claims against certain countries, until in its opinion a propitious moment for their pressure presented itself. At the present time, for example, the Department probably considers it useless to press claims against Mexico.

1 This happened in certain cases of missionaries murdered in the Lienchou riots, 1904.

2 British Vice-Consul Magee in 1874 expressly renounced all indemnity for an outrage against him committed by a local governor in Guatemala, on the ground that his personal interests would suffer thereby. Notwithstanding the renunciation, and a salute to the British flag by Guatemala, Great Britain pressed and collected a claim for £10,000 indemnity. 65 St. Pap. 875, at 900; Baty, 171.

* Jencken's claim (Gt. Brit.) v. Spain was therefore dropped by Great Britain. Mr. Hammond to Mr. Tomkins, Nov. 2, 1870, 62 St. Pap. 1003; Baty, 156.

Jarr and Hurst (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2713 (it was re

garded as a private settlement of the claim).

5 Infra, p. 810.

Other considerations operate to prevent this government from settling by arbitration its numerous claims against Spain. The various attempts to obtain the signature by Spain of a protocol of arbitration have come to naught upon the refusal of the United States to submit the East Florida claims to arbitration, a refusal based apparently rather upon traditional repetition and fear of the Senate's declining to ratify an agreement to arbitrate the claims than upon the justice of the American position under the treaty of 1819. In many cases, the financial weakness of the defendant state or its political instability has led the Department to abstain from pressing the claims of its citizens. Strained diplomatic relations furnish a good ground for declining to present pecuniary claims, an act which might only aggravate a delicate political situation. The pressure of a purely legal claim, therefore, is subject to every political consideration which affects the sensitive machinery of diplomacy, with the result that many meritorious claims have rested for years, unredressed, in the archives of the Department of State and in the Foreign Offices of other governments. There are few stronger arguments for the submission of international pecuniary claims to the adjudication of a permanent international tribunal.

$147. Government's Power to Renounce Indemnity.

It has already been observed that the government may abandon a claim against a foreign state whenever it becomes convinced of the fraud or disqualification of the claimant or of the falsity or injustice of the claim. A claim may also be renounced or surrendered for reasons of public policy, and the government escape legal liability, for whatever the equitable considerations in favor of just compensation to an individual whose private claim is relinquished for a public advantage, the government must be the sole judge of the means it is warranted in using in the pressure of a claim; and if it considers that the public interest does not justify a resort to certain measures, e. g., war, it may sacrifice the private interest for the public good.2 The government is not often confronted with such an alternative, for ar

1Supra, p. 367. U. S. v. La Abra Silver Mining Co., 29 Ct. Cl. 432, 175 U. S. 423; Frelinghuysen v. Key, 110 U. S. 63; Moore's Dig. VII, § 1083.

See extract from the Memoirs of J. Q. Adams, in Moore's Dig. VI, 1026.

bitration has fortunately offered a means of disposing of many claims. which prove impossible of settlement by diplomatic negotiation. Numerous claims, however, might be mentioned in which a foreign government, denying its liability in the premises, has refused to submit the issue to arbitration, and the claimant government, rather than resort to force, with its necessary consequences, has felt itself constrained or considered it preferable to drop the matter and abandon the claim. The power of the government, by treaty or otherwise, to renounce or relinquish the claims of its citizens, is indisputable.1 The circumstances under which the government, by reason of such renunciation of the claims of its citizens, may be deemed to incur liability to the individual claimant, will be considered presently.

The complete control of the government over the claim of its citizen does not cease when an award upon it has been made by an arbitral tribunal. This fact has been illustrated in several cases, where awards which the government regarded as having been unjustly obtained, were either not collected from the defendant states, or after having been paid, were returned in their entirety. In the case of Lazare against Haiti, Secretary Bayard set aside an arbitral award in claimant's favor on the ground that newly discovered evidence indicated the injustice of the award, and that there were irregularities in the arbitral proceedings and errors in the award.2 In the case of Pelletier against Haiti an award in claimant's favor was set aside by Secretary Bayard on the ground that the arbitrator had been mistaken in his jurisdiction and that the claim should have been dismissed, that the claimant was guilty of turpitude, and that the Executive should refuse to enforce

1

See, e. g., the renunciation of American claims against Spain, treaty of Feb. 22, 1819, art. 9, Malloy's Treaties, II, 1654; Meade v. U. S., 2 Ct. Cl. 224, 9 Wall. 691; Mutual release of claims in treaty of Feb. 17, 1834, art. 3, Malloy's Treaties, II, 1660; Treaty of Dec. 10, 1898 with Spain, art. 7, Malloy's Treaties, II, 1692; Spanish claims against Venezuela, treaty of June 21, 1898 cited in Corcuera (Spain) v. Venezuela, Apr. 2, 1903, Ralston, 936; Betancourt, ibid. 940; Certain Danish claims against U. S. relinquished in convention of March 28, 1830, Moore's Arb. 4549, 4563; Convention between Russia and Roumania, Apr. 21-May 3, 1882, for relinquishment of claims growing out of war with Turkey (damages caused by passage of Russian armies), 74 St. Pap. 297.

2 Lazare (U. S.) v. Haiti, May 24, 1884, Moore's Arb. 1749, 1779, 1793,

an unconscionable award.1 In both cases, the Department of State declined to collect the awards from Haiti.

In the case of the Caroline against Brazil, the United States, by act of Congress, returned to Brazil an indemnity which had been paid to a diplomatic representative of this government, the Attorney-General having advised that Brazil was not internationally liable on the claim.2

In some instances where awards were made in favor of the United States on claims which were subsequently found to have been fraudulent this government has returned to the foreign nation any indemnity it may have paid, and this notwithstanding the fact that a part of the indemnity had already been distributed to the claimants. The most notable cases under this head are the claims of Weil and La Abra Silver Mining Co. against Mexico in which-on what proved later to have been shameless fraud and perjury-awards were obtained from the Umpire of the mixed commission under the treaty of July 4, 1868. After a re-investigation of the cases by the Court of Claims, under the authority of Congress, had established the fraudulent character of both claims, the United States first returned to Mexico the undistributed balance paid on the claims and subsequently repaid the installments already distributed.3 In Frelinghuysen v. Key, Chief Justice Waite declared that "the government which has been so imposed on as to prosecute a fraudulent claim is in duty bound to repudiate the act and make reparation to the aggrieved state."

The United States has on several occasions, as a matter of equity or friendship, returned to foreign countries portions of indemnities which, upon allotment to entitled claimants, proved to have exceeded the amount of injury sustained.4

1 Pelletier (U. S.) v. Haiti, Moore's Arb. 1749, 1757, 1794, 1800.

2 Moore's Arb. 1342, note. Some of the indemnity paid to the diplomatic representative never reached the Treasury, it seems.

3 Moore's Arb. 1324 et seq.; Decisions of the Court of Claims in the La Abra case, 32 Ct. Cl. 432, 175 U. S. 423 and in the Weil case, 35 Ct. Cl. 42; Return to Mexico of undistributed balance, For. Rel., 1900, 781-784; Appropriation for repayment of distributed installments, Act of Feb. 14, 1902, 32 Stat. L. 5. The fraudulent award which was set aside in the Gardiner case (Moore's Arb. 1255) was that of a domestic commission.

4 Repayment of part of Japanese indemnity fund, Act of Feb. 22, 1883, 22 Stat. L. 421, Sen. Doc. 231, pt. 1, 56th Cong., 2nd sess., 405; Return of part of Chinese