possession of the claimant or can be obtained by him; and, when not, certified copies of the same should be produced, together with his oath or affirmation that the originals are not in his possession and cannot be obtained by him.

12. In all cases where property of any description for the seizure or loss of which a claim has been presented was insured at the time of such seizure or loss, the original policy of insurance, or a certified copy thereof, should be produced.

13. If the claimant be a naturalized citizen of the United States, a copy of the record of his naturalization, duly certified, should be produced.

14. Documentary proof should be authenticated by proper certificates or by the oath of a witness.

15. If the claimant shall have employed counsel, the name of such counsel should, with his address, be signed to the memorial and entered upon the record, so that all necessary notices may be addressed to such counsel or agent respecting the case.'

DEPARTMENT OF STATE,

Washington, March 5, 1906.

Paragraph 174 of the Instructions to Diplomatic Officers reads:

"The interposition of diplomatic representatives is often asked by their countrymen to aid in the collection of claims against the government to which they are accredited. If the claim is founded in contract, they must not interfere without specific instructions to do so. If it is founded in tort, they will, as a general rule, in like manner, seek previous instructions before interfering, unless the person of the claimant be assailed or there be pressing necessity for action in his behalf before they can communicate with the Department of State; in which event they will communicate in full the reasons for their action."

§ 304. Interpretation of the Circular of 1906.

A few comments upon the scope and interpretation of the circular of 1906 may be appropriate. At the outset, it may be remarked that the circular is most liberally construed, and an approximate compliance with its terms, to the extent of making out a prima facie case on the merits and of proving citizenship and title to protection on the

1 All papers filed by claimants in connection with the presentation of their claims are placed in the Department's files and thus become part of the government records, which may not thereafter be taken from the files for return to the claimants or for other purposes.

2

Instructions to the diplomatic officers of the United States, 1897, § 174, p. 68.

part of the claimant will usually suffice to obtain the Department's assistance. The Department reserves and frequently exercises the right of calling for additional evidence upon matters which it deems insufficiently proved. Briefs on the law may also be required, and in this connection it may be said that while the claimant is merely required to state the facts in his case, with the evidence in support, it is well on doubtful matters to accompany the memorial with a brief in support of the legal merits of the claim in international law. Such a brief is often of much assistance to the law officers of the Department of State in determining whether the government's protection may be properly extended to the claimant.

The fact that a claim is founded in contract need not deter a claimant in good faith from presenting his memorial to the Department, for while under general principles a pure contract claim is not formally prosecuted, it has been shown within what narrow limits the rule operates. Moreover the use of good offices in support of a meritorious contract claim is usually extended, and is often as efficacious in securing the desired relief as the formal diplomatic pressure of a pecuniary claim.

The need for a memorial in triplicate arises out of the usual necessity of forwarding one copy of the memorial to the diplomatic or consular representative of the United States at the place where the alleged claim arose, for his investigation and report. This report is often required by the Department in order to verify as far as possible the truth of the ex parte statements of the claimant, and to assist it in arriving at a just conclusion as to the propriety of extending diplomatic assistance to the claimant. Many apparently good prima facie cases are thus upon investigation abroad found to be quite unworthy of support. It may be added that in first instance a formal memorial may not be necessary to bring the claim to the attention of the Department, but a mere letter of complaint, stating the case, with the evidence in support, will ordinarily suffice to enable the Department to direct its representative abroad to investigate and report. Upon receipt of a favorable report, the Department may request the claimant to file a formal memorial.

1 Supra, § 114.

Rule 3 of the circular is designed to establish the citizenship of the real claimant at the origin of the claim, or the fact whether he has in any manner expatriated himself or forfeited protection by prolonged residence abroad.1 Rules 4 and 5 are intended to establish the beneficial ownership of claims, and all matters of transferred interest and assignment.2 These rules are also designed to establish compliance with the requirement that a claim must be national in origin as well as at the time of presentation and must have been continuously national in ownership, a rule which will be more fully considered presently.

It will be recalled that corporations invoking the assistance of the Department in support of a claim are required to file a properly certified copy of the charter or articles of incorporation, together with a duly executed instrument setting forth the ownership of the stock and bonds, including such a statement of the nationality of the holders as will show in whom the greater part of the real beneficial interest lies.3

With reference to Rule 15 it may be said that attorneys not of record must file a power of attorney from a directly interested claimant, before information concerning a claim will be given them. A change of counsel likewise must be accompanied by power of attorney.

Further conditions imposed by the Department, such as the exhaustion of local remedies, all absence of censurable conduct by the claimant, and other matters dependent upon the claimant's actions, will be discussed at more appropriate sections of this Part of the present work.

305. Practice of International Tribunals.

The conditions for the presentation of claims prescribed by the circular of March 5, 1906, are to a large extent derived, as the circular states, from "those which have been adopted by commissions organized under conventions between the United States and foreign governments." The formal conditions necessary to admit a claim

1 Infra, § 326.

2 Supra, § 290 et seq.

3 Supra, § 279.

to the jurisdiction of an international commission are found in two sources, the treaty or protocol establishing the tribunal and the rules for the submission of claims adopted by the commission. Claimants failing to comply with these jurisdictional conditions are barred. For example, the Lasarte claim before the United States-Peruvian commission of 1863 was disallowed because the claimant had failed, as the treaty required, to file a statement of his claim in the ministry of foreign affairs of his country, asking the diplomatic interposition of his government.1 The commission's requirements as to proof of citizenship, which are usually jurisdictional, are occasionally found, not only in the treaty or rules, but also in the decisions (“jurisprudence") of the commission.2

Domestic commissions established by Act of Congress are governed in their jurisdiction by the statute creating the commission and by the rules adopted. For example, the Act establishing the Alabama Claims court provided that no claim should be allowed "arising in favor of any person not entitled at the time of his loss, to the protection of the United States in the premises." 3 Under 4 of the Bowman Act of March 3, 1883,4 giving the Court of Claims jurisdiction over certain claims for stores and supplies, loyalty of the claimant throughout the war was a jurisdictional fact, and the claim was likewise barred if it had not previously been presented to some other department of the government.5

1 Lasarte (Peru) v. U. S., Jan. 12, 1863, Moore's Arb. 2390, 2395. See also Kinney (U. S.) v. Peru, ibid. 1626. The same result was reached in the case of certain claims before the U. S.-Mexican commission of 1839, Moore's Arb. 1244. The Department's circular of March 5, 1906 for this reason advises that "interposition" of the United States "should be requested in express terms."

Fors v. U. S., 19 Ct. Cl. 519, Senate Rep. 544, 55th Cong., 2nd sess., 6-7. See also Fletcher v. U. S., 32 Ct. Cl. 36; Nance v. U. S., 23 Ct. Cl. 463, and McStea v. U. S., Moore's Arb. 2381. In cases transmitted under the Tucker Act loyalty is not a jurisdictional fact. Chieve v. U. S., 42 Ct. Cl. 21. For the acts creating a few other domestic commissions or their rules see: Rules and regulations of Commissioners of Claims under Act of March 3, 1871, H. Misc. Doc. 12, 42nd Cong., 3d sess. 41-49. Decree (May 17, 1911) creating the Nicaraguan mixed claims commission, and rules of procedure, Managua, 1912. Acts creating Hawaiian court of claims, 87 St.

The rules of international and domestic commissions usually provide for the method of presenting claims, the documents which must be submitted, the formal contents of petitions or memorials, the necessary jurisdictional data concerning the claimant and the claim, the form of the papers, the method and time of filing, and other matters of pleading and procedure.1

CLAIM MUST BE NATIONAL IN ORIGIN

§ 306. Impossibility of Nationalizing Claim by Naturalization or Assignment.

Few principles of international law are more firmly settled than the rule that a claim, in order to justify diplomatic support, must when it accrued have belonged to a citizen. This principle that a claim must be national in origin arises out of the reciprocal relation between the government and its citizens, the one owing protection and the other allegiance. If the claim did not originally accrue in favor of one owing allegiance, protection cannot be invoked or properly extended. To support a claim, originally foreign, because it happened to come into the hands of a citizen would make of the government a claim agent. The rule that "citizenship at the time the claim arose must be shown" is invoked by the Department of State to reject two classes of claims in which efforts have been made to nationalize a diplomatic claim originally held by a foreigner.

1. The first class covers cases where the original claimant, a foreigner when the claim accrued, becomes subsequently a naturalized citizen, and seeks the diplomatic interposition of the United States in support of his claim. This class of claimant is uniformly barred by the rule that naturalization is not retroactive but prospective only, and that the state of adoption cannot extend diplomatic redress to an individual in matters which arose before his admission to citiPap. 1230. Claims against Cuba growing out of insurrection, Decree 158, Nov. 22, 1906, For. Rel., 1907, I, 298–301. Claims against Colombia, Decree of Feb. 17, 1886, 77 St. Pap. 805. At times the conditions imposed by certain Latin-American republics upon claimants against themselves have been considered by foreign govern ments as violations of international law. Infra, p. 849.

1 See, e. g., Rules of the British-American commission under art. XII of the treaty of May 8, 1871, 63 St. Pap. 1057, Hale's Rep. 177. Organic act of March 2, 1901, 31 Stat. L. 877, creating the Spanish Treaty Claims Commission, and preceding note