ditions under which it is accepted, the inhabitants of such acquired territory might become our masters instead of our subjects.1

§ 442. The exercise of the right of eminent domain under the treaty-making power.-The third instance referred to is the right of eminent domain; the treaty-making power of the United States has frequently been exercised in the settlement of international disputes in such manner that claims of citizens of the United States against foreign governments have been wiped out and absolutely surrendered so that they can never be asserted by the citizens, either in the courts of this country, or in the courts of the debtor government;1 and this without providing any remedy, or prospect of indemnity, except such as Congress may thereafter provide, at its own time and convenience.2

4 See JUSTICE WHITE'S concur- ted States have been surrendered ring opinion in Downes vs. Bidwell, by the United States by treaty was (INSULAR CASE) U. S. Sup. Ct. in 1898 in the treaty of peace with 1901, 182 U. S. 244, p. 287, and see Spain, article 2 of which is as folextracts therefrom in INSULAR lows: CASES APPENDIX at end of volume I.

§ 442.

"Art. II. Spain cedes to the United States the island of Porto Rico and other islands now under Span

and the island of Guam in the Marianas or Ladrones."

In Moore's History of Arbitration will be found the proceedings of Commissions appointed for determining these claims distributing awards and indemnities received by the United States.

1 No effort will be made to enum-ish sovereignty in the West Indies, erate all the occasions on which this power has been exercised and claims of citizens of the United States against foreign governments have been surrendered and barred. Such a list, and to discuss the conditions under which claims conventions and other treaties have been entered into and their effect on the claims of citizens of the United States would simply be an abridgment of Mr. John Bassett Moore's History of International Arbitration already referred to, gressional relief has been very to which the reader is referred for detailed information on this subject. The TREATIES APPENDIX at end of this volume contains a list of all the treaties of this nature.

The most recent occasion in which claims of citizens of the Uni

2 In some cases no provision has been made for distributing the amounts received by the United States, in other cases it has been delayed, and in other cases con

prompt. The indemnification of the citizens of the United States for the claims which were surrendered under the treaties of 1800, and 1803 with France (U. S. Treaties and Conventions, edition 1889, pp. 322 and 331), was delayed for

The Supreme Court of the United States held in the early and leading case of Ware vs. Hylton,3 which has already been referred to as the authority on the supremacy of treaty stipu

over eighty years, until at last 1900, 35 Ct. Claims, 387, WELthe original sufferers were allowed DON, J. to present their claims to the Court of Claims by Acts of Congress passed Jan. 20, 1885, (23 U. S. Stat. at L. p. 283), and subsequently thereto.

The Schooner Henry and Gustavus, U. S. Ct. of Claims, 1900, 35 Ct. Claims, 393, WELDON, J.

The Ship Juliana, U. S. Ct. of Claims, 1900, 35 Ct. Claims, 400,

The following are the leading PEELLE, J. French Spoliation Cases:

Holbrook vs. United States, U. S. Ct. of Claims, 1884, 21 Ct. Claims 434, DAVIS, J.

Cushing vs. United States, U. S. Ct. of Claims, 1886, 22 Ct. Claims, 1, DAVIS, J.

Gray vs. United States, U. S. Ct. of Claims, 1886, 21 Ct. Claims, 340, DAVIS, J.

Hooper vs. United States, U. S. Ct. of Claims, 1887, 22 Ct. Claims, 408, DAVIS, J.

The Brig William, U. S. Ct. of Claims, 1888, 23 Ct. Claims, 201, SCOFIELD, J. Also reported under names of Haskins, Adams, Blagge, vs. United States.

The Ship Betsey, U. S. Ct. of Claims, 1888, 23 Ct. Claims, 277, NOTT, J.

The Ship Jane, U. S. Ct. of Claims, 1889, 24 Ct. Claims, 74, NOTT, J.

The Leghorn Seizures, U. S. Ct. of Claims, 1892, 27 Ct. Claims, 224, NOTT, J.

The Brig Venus, U S. Ct. of Claims, 1892, 27 Ct. Claims, 116, NOTT, J. Also reported under Cole vs. United States.

The Ship Tom, U. S. Ct. of Claims, 1893, 29 Ct. Claims. 68, NOTT, J.

The Ship Ganges, U. S. Ct. of Claims, 1896, 31 Ct. Claims, 175, DAVIS, J.

|

The Ship Parkman, U. S. Ct. of Claims. 1900, 35 Ct. Claims, 406 WELDON, J.

The Ship Apollo, U. S. Ct. of Claims, 1900, 35 Ct. Claims, 411, PEELLE, J.

The Ship Concord, U. S. Ct. of Claims, 1900, 35 Ct. Claims, 432, NOTT, Ch. J.

U. S. vs. Gilliat, U. S. S. C. 1896, 164 U. S. 42, PECKHAM, J. In this case the Court states what in its opinion Congress intended to do by the act of 1894 in regard to French spoliation claims, and it was held that the decisions of the Court of Claims were to be final, and not subject to review by the Supreme Court.

For a list of French Spoliation awards reported to Congress by the Court of Claims, see 23 Ct. Claims, 524, 24 Id. 550, 25 Id. 531, 26 Id. 637. See also p. 404, post.

Congress has acted much more promptly in regard to the claims affected by the Spanish treaty of 1898, the Spanish treaty claims commission having already been appointed under the act of March 2, 1901, (31 U. S. Stat. at L. p. 877, and referred to in note 5 to § 308, vol. I, p. 442, et seq.).

3 Ware vs. Hylton, U. S. Sup. Ct. 1796, 3 Dallas, 199, and see extract from the opinions in §§ 326, et seq.,

The Ship Star, U. S. Ct. of Claims, pp. 7, et seq., ante.

5

6

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

4 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.

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.

1Extracts 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 because 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.)