to conduct the foreign relations of the government.' This is usually the practice when a single claim is paid, and in principle is not altered by the fact that a group of claims is paid in a lump sum. In the latter case, it is usually deemed more convenient to create some kind of judicial commission to apportion the fund received.

Both the Executive and Congress have certain plenary powers over the fund received and an absolute discretion in its distribution. For example, as already observed, the Executive may either decline to enforce payment of an award considered erroneous, as was done by Secretary Bayard in the cases of Pelletier and Lazare against Haiti, or he may withhold payment to claimants, uncontrolled by the courts, pending diplomatic negotiations for the opening of an award. In the conclusion of new treaties for the resubmission of claims to arbitration the power of the Senate may also be involved. In the refunding of an award obtained by fraud or imposition, and the investigation of the matter of fraud, Congressional legislation has usually been invoked, principally because the Executive or political branch of the government has no machinery for the examination of essentially judicial questions, the method for their examination being left to the direction of Congress. Congress has on several occasions delegated this judicial function to the Court of Claims, and the constitutionality of its action has been upheld by the courts.2 As a matter of fact, after the international questions have been settled, Congress has plenary jurisdiction over the distribution of the national fund, provided it chooses to act.3

In the exercise of its full control over the matter of distribution, Congress has directed payment to certain claimants and excluded others; e. g., in the payment of French Spoliation claims, Congress

The decisions of the French Council of State exclude judicial review of the executive act of distributing awards, on the ground that it is a diplomatic act, or "acte de gouvernement" (Courson, Jan. 5, 1847, Lebon, 1; Dubois, Apr. 30, 1867, Lebon, 421) although adverse claimants may sue the beneficiaries of the distribution in the courts (Pontus, May 25, 1832, Lebon, 160). This closely resembles the American practice.

2 E. g., U. S. v. La Abra Silver Min. Co., 175 U. S. 423 (29 Ct. Cl. 432); U. S. v. Weil, 35 Ct. Cl. 42; U. S. v. Diekelman, 92 U. S. 520 (8 Ct. Cl. 371).

3 Opinion of Solicitor, Distribution of Alsop award, pp. 17-27. In most cases, the distribution is left to the Department of State exclusively.

provided that only the next of kin of the "original sufferer" should benefit, to the exclusion of assignees in bankruptcy and insurance companies,1 and in the distribution of the Alabama award under the Act of June 23, 1874, after providing that the Commission might award attorney's fees to those appearing for claimants, declared null and void all other liens or assignments and transfers for services rendered made before the judgment of the commissioners was handed down.2 Congress may designate any court to hear claims against awards received from foreign powers, and for this purpose has often designated the Court of Claims or special tribunals, whose decisions, unless reopened by Congress and appeal allowed, are final on the question of validity and amount of the claim.

3

Unless specially designated by Congress for the purpose, the Court of Claims has denied its jurisdiction over claims against the United States arising out of an award paid to the United States under treaty or agreement with a foreign power, either because it was considered a claim growing out of a treaty under § 1066 of the Revised Statutes or because the obligation of the government to pay a claimant cannot be deemed a contract, express or implied.1

In most cases, particularly where single claims are collected, Congress has not interfered with the free exercise of the Executive's discretion in the distribution of awards.5

Prior to the Act of February 27, 1896, which will be considered presently, it was the practice of the Executive, through the Secretary of State, to pay over to the injured party or parties the indemnity collected, without any act of Congress. Only in exceptional cases, 126 Stat. L. 897, 908. As to the plenary power of Congress over awards see Blagge v. Balch, 162 U. S. 439.

2 See full text of § 18 of Act of June 23, 1874, 18 Stat. L. 249. Bachman v. Lawson, 109 U. S. 659.

3 S. J. Res., May 25, 1908, allowing appeal to Court of Claims from decisions of U. S. commissioners in the Boxer Indemnity claims. 35 Stat. L. 577, For. Rel., 1908, 65.

4 Great Western Ins. Co. v. U. S., 19 Ct. Cl. 206 (112 U. S. 193); Alling v. U. S., 114 U. S. 562 (17 Ct. Cl. 311).

5 Committees of Congress have expressly conceded that the Department of State had full power and authority in the distribution of awards. Sen. Rep. 311, 47th Cong., 1st sess., March 23, 1882; H. Rep. 700, 45th Cong., 2nd sess., April 24, 1878,

did Congress interfere with the Secretary's discretion in the disposition of funds received. When there was a single claimant, or where a domestic commission had apportioned the individual claims against a lump sum indemnity, the Secretary of State paid the person who appeared to be prima facie entitled, namely, either the claimant or his assignee of record. Should the fund have been paid to one not equitably entitled, no liability was incurred by the Secretary, but the courts, in actions for money had and received or by way of injunction, granted appropriate relief to the persons rightfully entitled, either by allowing recovery of moneys paid to claimants not entitled, or by perpetually enjoining the receipt of the moneys by one who may be prima facie but not equitably entitled.2

It has already been observed that the courts have no jurisdiction over the Secretary of State either to compel or enjoin the distribution of funds. It is established law that the government cannot be sued in the ordinary courts without its consent, nor is the Secretary of State subject to any judicial decree tying up the fund or directing his action in the discharge of such an important executive function as the distribution of awards, over which, by its nature, the Executive subject to direction by Congress, if Congress desires to act in the matterhas unquestionable control. The Secretary's control over the funds cannot be intrenched upon, directly or indirectly, by way of mandamus, injunction or suit, to recover the funds or to fetter his discretion by the declaration of a lien or trust.1

3

§ 155. Practice of Department of State under Act of February 27, 1896. Prior to the statute of 1896 there was no customary place for the

1 Act of June 18, 1878, 20 Stat. L. 144, conferring on Secretary exclusive jurisdiction over the distribution of the awards of the U. S.-Mexican commission of 1868. Virginius indemnity, Joint Res. of Dec. 16, 1882, directing Secretary to pay a portion of the fund received from Spain to a person not included in the original plan of distribution. See H. Ex. Doc. 15, 45th Cong., 1st sess., H. Ex. Doc. 72, 45th Cong., 2nd sess.

2 Brief of Solicitor Penfield in Pell v. Hay, Supreme Court of the District of Columbia, 1902.

Stubbs' case, 10 Op. Atty. Gen. 31, 32.

4 Brief of Solicitor Penfield in Pell v. Hay, citing 10 Op. Atty. Gen. 31, Frelinghuysen v. Key, 110 U. S. 63, Boynton v. Blaine, 139 U. S. 306, and Rustomjee v. The Queen, 2 Q. B. D. 69.

deposit of funds received from foreign governments in payment of claims. These moneys, which for various reasons were withheld from immediate distribution, were occasionally deposited by the Secretary of State in private banks, where the money earned interest. Disputes sometimes arose as to the ownership of the increment, it being finally settled that as between the government and the claimant, the government and not the claimant had title to and the benefit of any accretions to the fund. In the case of the indemnity received from Venezuela under the subsequently reopened awards of the 1866 commission, Congress provided that the increment or accretions of the funds invested in banks should be credited to Venezuela and applied to the payment of the awards of the 1885 commission.2

The diversity and uncertainty in practice and the absence of Congressional authority for the deposit of funds received by the Secretary of State in payment of claims constituted the reason for the enactment by Congress, upon request of Secretary Olney, of the Act of February 27, 1896,3 providing for the deposit of funds in the Treasury, and for the procedure for their disbursement. In other respects, the Executive prerogative in the disposition of indemnities has not been affected. By the Act, Congress has exercised its jurisdiction, under municipal law, to provide for the disbursement of national funds. The Act reads as follows:

4

"Hereafter all moneys received by the Secretary of State from foreign governments and other sources, in trust for citizens of the United States or others, shall be deposited and covered into the Treasury.

"The Secretary of State shall determine the amounts due claimants, respectively, from each of such trust funds, and certify the same to the Secretary of the Treasury, who shall, upon the presentation of the certificates of the Secretary of State, pay the amounts so found to be due.

2 Act of Jan. 21, 1895, 28 Stat. L. 635. In the Senate Report on this bill, it is declared that the investment of indemnities is unauthorized by law. Sen. Rep. 691, 52nd Cong., 1st sess., reprinted in Sen. Doc. 231, pt. 3, 56th Cong., 2nd sess., compilation of reports of Committees on For. Rel.

29 Stat. L. 32. See explanatory statement of Representative Hitt in the Congressional Record, 54th Cong., 1st sess., v. 28, pt. 2, p. 1058, reprinted in Sol. Op. In re Distribution of Alsop award, p. 45.

* Some account of the earlier practice in the disbursement of funds received in payment of international claims is found in Moore's Dig. VI, 1030-1031.

"Each of the trust funds covered into the Treasury as aforesaid is hereby appropriated for the payment to the ascertained beneficiaries thereof of the certificates herein provided for."

There are no reported cases under this statute, although suits have been brought under it involving the right of individuals to compel the action of the Secretary of State or the Secretary of the Treasury by mandamus or injunction; but in line with previous decisions of the Supreme Court, the Secretary of State's discretion had been held to be uncontrollable by either of these writs. Indeed, the only essential innovation inaugurated by the statute is to make a permanent appropriation of such funds deposited in the Treasury, as are ordered paid by the certificates of the Secretary of State. Moreover, the statute is merely declaratory in leaving the absolute and exclusive determination of the disposition of the funds to the discretion of the Secretary of State. Had the courts the power to restrain the Secretary of State, or the Secretary of the Treasury in the disbursement of moneys on the certificate of the Secretary of State, it would very substantially impair the Secretary of State's jurisdiction, having the effect of making the Secretary's determination merely a preliminary formality and placing the real power to determine the beneficiaries in the courts.

The statute of 1896 contemplates four operations by the Secretary of State in his control of indemnities: (1) the receipt of the money from the foreign government; (2) covering the money into the Treasury; (3) the determination of the amounts due claimants respectively from such funds; and (4) the certification of the same to the Secretary of the Treasury by the issuance of certificates.1

The first and second steps require no explanation, so that attention may at once be given to the third and fourth. The third operation imposes upon the Secretary of State 2 primarily and essentially a judicial function in the exercise of the municipal jurisdiction which attaches to the fund when received, rather than an executive function in the conduct of foreign relations. These judicial duties involve two processes: (a) the determination of who the claimants are, i. e.,

1 An excellent analysis of the Act of 1896 and the powers of the Secretary thereunder is to be found in the opinion of J. Reuben Clark, Solicitor, In re Distribution of Alsop award (1912), pp. 36-45.

2 The Secretary usually delegates these duties to the office of the Solicitor.